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2000 Supreme(Bom) 360
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.H. Marlapalle D.S. Zoting, JJ.
Jayprakash S/o. Raosaheb Salunke others..... Petitioners.
Versus
The State of Maharashtra others..... Respondents.
Writ Petition No. 1559 of 2000, decided on 3-5-2000.
Advocates appeared :
V.D. Hon, for the petitioner.
E.P. Sawant. G.P., for respondent Nos. 1 and 2.
V.D. Salunke, for the respondent No. 4.
Shah for Intervenors/respondent Nos. 5 to 10.
Headnote:Maharashtra Co-operative Societies Act, 1961
Section 2(5)-Maharashtra Co-operative Societies Rules, 1961, Rule 8-Bye-Iaws-They are not statutory in nature-Do not have overriding effect on provisions of the rules,-It is well settled by a catena of decisions that the provision of byelaws are not statutory in nature and they do not have an overriding effect on the provisions of the Rules, though they are referred to and relied upon for the matters for which there is no provision in the statutory rules.
Section 73-D-Maharashtra operative Societies Rules, 1961, Rule 57-A(7)(g)(iii)-No confidence motion in officers of society-Applicability of procedure-Rule in conflict Section 73-10 of Act-Provisions of Section 73-ID Ad override over provisions of Rule 57-A simple majority requires for no confidence motion and not 2/3 majority. The special meeting for discussing the no confidence motion and casting vote thereon is required to be proceeded on the basis of a simple majority. We, therefore, direct the respondent No. ,3 to hold a fresh meeting within a period of two weeks from today and respondent No.2 shall give a notice to that effect to the petitioners as well as the respondent members, forthwith. Court does not wish to deal with any further prayers inasmuch as those prayers cannot be gone into by us at this juncture. The impugned order passed by the respondent No.3 is quashed and set aside.
Section 73-ID and Maharashtra Co-operative Societies Rules, 1961, Rule 57-A(7)(g)(iii) -Motion of no-confidence against officers of society-Motion is required to be passed by a simple majority and not by 2/3rd majority of committee members,- The unamended Section 73-ID of the Maharashtra Co-operative Societies Act indicated that the requisition for special meeting in response to a motion of no-confidence was required to be signed by not less than 1/3rd of the total number of members of the committee who are entitled to vote, the coring for such a meeting was required to be 2/3rd of the members of the Managing Committee and if the 2/3rd is a fraction it was to be rounded to the next higher number and finally the motion of no-confidence was required to be passed by 2/3rd majority. With the amendment, as made by Maharashtra Act No. 7 of 1997, the situation has changed so far as it relates to the motion to be passed by majority and the word "2/3rd majority" has been replaced by the word "simple majority". However, the provisions of Rule S7-A(7)(g)(iii) are conflicting and inconsistent with provision of Section 73-ID(1) of the Act as amended. The provisions of Section 73-ID(1) of the Act must prevail over the provisions of Rule S7-A(7)(g)(iii) of the Rules. The Coram for the special meeting called for by the Registrar in respect of a motion of no-confidence must be held to be a simple majority and not be the 2/3rd majority as has been contemplated by the Legislature by amending the said section in 1997. The intention of the Legislature must be given its true meaning and the intention cannot be negated by the provisions of the rules which have remained unamended, whether deliberately or inadvertently or for any other reasons.
2.Rule. Rule taken up, by consent, for final hearing forthwith.
3.The petitioners claim to be the members of the managing committee of the Trimurti Stalk Ply Sahakari Sanstha Limited Basmat, Taluka Basmat, District Hingoli which is a registered co-operative society under the provisions of the Maharashtra Co-operative Societies Act, 1960 (for short, the Act). The respondent No. 4 is the Chairman of the said managing committee and the added respondents are other members of the said committee. It is contended that total number of managing committee members is 15. On 10th April, 2000 the petitioners submitted a motion of no confidence before the District Deputy Registrar, against the respondent No. 4 Chairman, in the prescribed form and accordingly the District Deputy Registrar (respondent No. 2 herein) issued notice on 16th April, 2000 to all the members of the managing committee informing them that a special meeting of the managing committee to discuss the motion of no confidence and to vote on the said motion was called and fixed on 24th April, 2000. Alongwith the requisition of no confidence the list of managing committee members was also submitted by the petitioners-requisitionists.
4.On 20th April, 2000 the petitioner No. 1 submitted a representation to the respondent No. 2 inviting his attention to the amended provisions of section 73-1D of the Act, to the effect that the motion of no confidence was required to be passed by a simple majority of the total number of the managing committee members who are entitled to vote at the election of such managing committee and the provisions of Rule 57-A(7)(g)(iii) of the Maharashtra Co-operative Societies Rules, 1961 (for short, the Rules) would not operate. This petition was moved before us on 24th April, 2000 and was fixed for hearing on admission on 26th April, 2000. In the meanwhile, the meeting, as fixed by the respondent No. 2 was proceeded on 24th April, 2000 and the respondent No. 3 as directed by respondent No. 2 by a specific order presided over the said meeting. Respondent No. 3 passed an order on 24th April, 2000 stating therein that as required under Rule 57-A(7)(g)(iii) of the Rules, the 2/3rd members of the total members entitled for vote were not present and the motion of no confidence was rejected. The petition was, therefore, amended and this order passed on 24th April, 2000 by respondent No. 3 has been also challenged.
5.Respondent No. 4 as well as respondent Nos. 5 to 10 have also filed their affidavit in reply and opposed the petition. Shri Salunke, learned Counsel appearing for the respondent No. 4, at the out set, has taken objections to the maintainability of this petition on the grounds that (a) the petition involves disputed questions of fact, (b) petitioners have an alternative and efficacious remedy under section 91 of the Act to approach the Co-operative Court by way of a Dispute, (c) the petitioners have failed to come with clean hands before this Court inasmuch they have suppressed the fact that one of them namely Shri Vinod Bhagwandas Zawar had already resigned prior to the date of requisition and his resignation was accepted, intimation was sent to the respondent No. 2 and he himself held a press conference and declared that he had resigned from the managing committee. Shri Salunke further contended that the petition is based on the orders passed by this Court in Writ Petition No. 5255 of 1997 and 1242 of 2000 and these orders cannot be treated to be laying down the correct position in law inasmuch as the initial order in Writ Petition No. 5255 of 1997
