Section 73-C(3) of the Maharashtra Cooperative Societies Act, 1960, read with the bye-laws enables a restrictive right to vote, for non-borrower members.

1. Noticing difference of opinion on the construction of Section 73-C(3) of the Maharashtra Cooperative Societies Act, 1960, hereinafter referred to as the Act, the learned Division Bench has placed this matter before the Hon’ble the Chief Justice for reference to a larger Bench for consideration of the following questions.

(1) Whether, Section 73-C of the Maharashtra Cooperative Societies Act, 1960, carves out restrictive right to vote for borrower or non-borrower members or all the members should have a right for electing all the seats of the managing committee ?

(2) Whether, separate bye-law can validly be framed for creating restrictive right of voting ?

2. Before we turn to the arguments, we may refer to the judgments based on which the learned Division Bench felt it necessary to refer the dispute for consideration by the Full Bench. The issue arose from construction of the provisions of Section 73-C (3) of the Act. The relevant sub-section reads as under:

"73-C (3) In the case of an Agricultural Credit Society which gives loans to individuals for the raising of crops, there shall not be more than one representative on the committee of such society, of members who have not taken any loans from the society; and that representative shall be elected only from amongst members who have not taken loans. Such representative shall not be eligible for being elected as a designated officer." (emphasis supplied) .

A learned Division Bench of this Court in Dinkar Pandurang Patil & another V/s Chikali Vividh Karyakari Society Ltd. & others (1984 CTJ, 147) had considered the provision of Section 73-C(3). The learned Bench firstly noted that the bye-laws of the society do not provide for any separate constituencies. In construing Section 73-C(3), it firstly observed that election of such representative from amongst such non-borrowing members did not mean election "by" them alone. In the absence of any provision for the election of such representative "by" them alone, right of borrower members to exercise their vote in election for a seat reserved for non-borrowers cannot be denied. Right to vote in the affairs of the Society contemplated u/s 27(1) of the Act can not be denied without some legal authority for such denial. Secondly, no such exclusion of their voting rights can be inferred from the word "representative". Apart from election not being the indispensable ingredient of its conception, the context itself militates against it being its ingredient under the section. Thirdly and more importantly, suggestion as to any separate constituency for the election of the representative of the non-borrowing members assumes, as if they are necessarily entitled to have their representative on the committee. Any such assumption militates against the conception of "restriction" running through the three clauses of the section as against the reservations under Sections 73B and 73BB. Section 73-C(3) merely aims at restricting the number of the representatives of certain class of members on the Committee.

It may also be noted that the learned Bench held that instances of voters being divided into separate constituencies restricting their voting rights to the candidates standing from such constituencies are not unknown to the law of elections, where the number of voters happen to be large or interests of voters happen to differ depending on their place of residence or nature of their membership. The learned Bench then noted as under:

"The Act and the Rules to which our attention was drawn do not show how precisely the members of the Committee are to be elected. It appears to have been left to each Society to regulate such procedure by its bye-laws."

On facts, the Bench found that the byelaws do not provide for any separate constituties. In para 12, the Court observed as under:

"It is, however, advisable to frame proper bye-laws to implement the legislative mandate under Sections 73B to 73C to avoid any confusion."

3. This vie