2008 Supreme(Bom) 674

2008(4) ALL MR 223
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
SWATANTER KUMAR, C.J. & Mrs. VASANTI A. NAIK, J.
Krishna Ganpatrao Kamdi & Ors.
Vs.
Liladhar w/o. Laxman Pathode & Ors.
Writ Petition No.5 105 of 2006
Decided on: 5th May, 2008.

Headnote:Bombay Cooperative Societies Act, 1925 - Preamble-Maharashtra Co-operative Societies Act, 1960-Preamble-Preamble of statute clear and explicit-Can neither expand nor control scope and application of substantive provision-Preamble or recital of an Act is key for opening meaning and intent of an Act.-It is a settled cannon of interpretative law that recital or preamble of an Act is key for opening the meaning and intent of an Act. Equally true it is that preamble of the statute can neither expand nor control the scope and application of the substantive provision particularly when it is clear and explicit. The legislature with a view to provide for orderly development of co-operative movement in the State of Maharashtra and in accordance with the relevant Directive Principle of the State policy enumerated in the Constitution of India considered it expedient to consolidate and enact the laws relating to the co-operative society in the State. The Bombay Co-operative Societies Act, 1925 in its application to State of Maharashtra was repealed and by a new enactment the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the ’said Act’) was enacted. This Act was for the development of the co-operative movement which was expected to be in an orderly manner. The said Act was intended to provide greater freedom, free and fair democratic process and to regulate business and management of the societies in accordance with the prescribed standards with inbuilt check and balance indicated under the various provisions therein.

       Maharashtra Co-operative Societies Act, 1960 - Sections 91 and 144-T-Jurisdiction of Co-operative Court-Very wide having a limited application to persons and affairs spelt out in provisions-Co-operative Court not rested with jurisdiction to entertain an election petition in respect of elections of Chairman and Vice-Chairman of Managing Committee of specified society-As it falls within jurisdiction of commission under Section 144-T of Act.-Jurisdiction vested in the Co-operative Court in substance; is very wide but has a limited application to the persons and affairs spelt out in the provision. For example, in the case of Chairman and Vice-Chairman of the Managing Committee of the specified society. The Co-operative Court will have no jurisdiction to entertain an election petition as it would squarely fall within the jurisdiction of the Commissioner under Section 144-T of the Act as held in the case of Zambar Rajaram Patil and another v. State of Maharashtra and others, 2000 (2) Mh LJ 213. Absence of express statutory provision in relation to election being materially affected per se would not make application of the concept alien to Co-operative Court while determining the election dispute in exercise of its powers under Section 91 of the Act. This concept would have to be applied in its proper perspective and with due care. Uniform application de hors the nature of the violation alleged to have been committed can hardly be spelt out as a principle of law.

       Maharashtra Co-operative Societies Act, 1960 - Sections 91, 144 and 165-Jurisdiction of Co-operative Court-Election dispute-Non specified or non notified society-No specific criteria/parameters provided for under Section 91 of Act-Co-operative Court has jurisdiction to adjudicate election disputes.-Admittedly, there is no provision in the Act pari materia to Section 100(1)(d) and the other provisions of Representation of People Act, 1951 which require that the Co-operative Court should examine the concept of election being materially affected by the irregularities, illegalities or other statutory violations. Absence of such provisions in the present Act indicates the mind of the Legislature not to subject all irregularities, illegalities or violation facties to the concept of election being materially affected. It is the settled cannot of statutory interpretation that the principle of plain interpretation should be applied where the language of the provision is clear and rather unambiguous. It will be impermissible for the Court to provide any strait jacket formula as panacea to the various situations that may arise in relation to any dispute of election to committee or notified society. The Court, at best can only lay down certain general percepts which would help the Co-operative Court and the High Court in dealing with the cases of the present kind or such other cases relating to matters of election. Section 91 of the Act provide for any dispute touching the election of the committee etc. and also between whom the dispute should be and what does the dispute includes. The this section either by specific expression or by necessary implication does not touch upon or prescribe any criteria/parameters which may be considered or adopted by the Co-operative Court while dealing with the disputes relating to the election. This is the grey area left by the Legislature and would require the lacunae to be supplied by judicial interpretation but while supplying such a lacunae, the Court has to ensure that the basic legislative character object and methodology contemplated under the statutory provision is not altered or violated by such process.

       (The laws relating to Municipalities, Gram Panchayats and even with regard to non-specified and non-notified societies do not contain provisions alike the Representation of People Act. However, Rule 81 of the Maharashtra Specified Co-operative Societies Election to Committee Rules, 1971 thereafter referred to as "the Rules") is a provision pari materia to Section 100(1)(d) of the Representation of Peoples Act. The provisions of the Maharashtra Co-operative Societies Act, 1960, are primary provisions relating to process of election in exercise of powers conferred under Sections 144-F, 144-L and 144-X and their different sub-sections read with sub-section (1) of Section 165 of the Act the State Government of Maharashtra in exercise of its power had framed the said rules to regulate the process of election to the different societies. However there are hardly any specific provisions which deal with process of election or ground on which an election can be set aside in the case of a non specified or non notified society. The general adjudicative powers are vested in the Tribunal in terms of Section 91 which is expected to adopt its own procedure. Thus the provisions under other laws or even under these provisions cannot be applied to the non-specified or non-notified societies in stricto. The aggrieved person has to approach the Tribunal in accordance with the provisions of the sections of the Act itself. In the present case, we are concerned with the non-specified or non-notified society. Elections to the Managing Committee were declared on 14th February, 2004 and 17 Managing Committee members were to be elected, 11 under the general category and remaining under different reserved categories. The votes were counted on 15th October, 2004 and results were declared 18 disputants had challenged the elections of the elected members on various grounds including the irregularities in election process as well as actual holding of election. It was also the ground taken that votes were not counted and even result of the election was changed. Thus according to them elections suffered from irregularities as well as illegalities. Viewing it from a larger perspective there could be two classes of cases in election petition (i) where there is clear violation of provisions of the Act, the rules and the bye-laws having a mandatory character. Such class of cases may even includes unfair practices like corrupt practices etc. and (ii) where irregularities or improper practices are committed and they are not in conformity with the rules or bye-laws having non mandatory character and are directory in nature. This classification would have to be determined by the Co-operative Court depending on the facts and circumstances of the case and in accordance with law. In the prior class of cases, it may not be absolutely necessary for the Court to apply the principle of election being materially affected while in the later class of cases, the application of such principle may be essential. In either of these class of cases the purpose is that election should be pure and fair. Fairness is relatable to procedure while pureness is to be tested in every facet of election process. This is the true doctrine applicable to any democrate process of election. Whatever be the status of the bye-laws, their sanctity cannot be entirely wiped out for lack of their statutory character. The object of the act, rules and the bye-laws, cumulatively read, is to ensure proper and fair election and not to permit this to subserve illegalities or irregularities. Mainly such questions need to be determined by the Co-operative Court in exercise of its vast jurisdiction. It being a Court of specific jurisdiction is expected to deal with the factual matrix and legal disputes raised in an election petition and in consonance with the settled principles of law. In the present case, the disputant had raised various objections and alleged that there is violation of rules and bye-laws.