Back
2013 Supreme(Bom) 2603
In the High Court of Bombay at Aurangabad
S.V. GANGAPURWALA, J.
Vijayabai Balasaheb Lelkar & Others
Versus
Amol Bapurao Kokane & Others
Writ Petition Nos. 6587 & 6537 of 2013
Decided On: 24-12-2013
For the Petitioners:R.R. Karpe, Advocate.
For the Respondents:R1 to R3, R20 & R27, V.D. Sapkal, R4 to R16, V.D. Hon, R17, Sandeep S. Deshmukh, R18, M.S. Patni, A.G.P, R25 & R26, Y.S. Choudhari, R19, R21 to R24, V.D. Salunke, h/f S.S. Gangakhedkar, Advocates.
The main legal point established in the judgment is that byelaws cannot override statutory provisions, and if there is a conflict between byelaws and statutory provisions, the statutory provisions prevail. Additionally, the court emphasized that the jurisdiction of the appellate court should be exercised within the scope of the issues raised by the disputants.
Headnote:
Elections - Managing Committee - Maharashtra Cooperative Societies Act - Sec. 73B(3), Sec. 73BBB(3) - The court discussed the legality and validity of the elections of the managing committee of a cooperative society, focusing on the byelaws restricting non-borrowing members from voting for reserved category candidates. The judgment highlighted key legal provisions, their interpretations, and their influence on the court's decision.
Fact of the Case:
The case involved the legality and validity of the elections of the managing committee of a cooperative society, where the byelaws restricted non-borrowing members from voting for reserved category candidates. The dispute arose from the elections held in accordance with the byelaws of the society.
Finding of the Court:
The court upheld the setting aside of the election of members elected from the reserved category, as the byelaws restricting non-borrowing members from voting for reserved category candidates were found to be illegal and in conflict with the statutory provisions. However, the court found that the Cooperative Appellate Court exceeded its jurisdiction by setting aside the election of members from the open category, which was not challenged by the disputants.
Issues: The key issues included the legality of the byelaws restricting non-borrowing members from voting for reserved category candidates, the jurisdiction of the Cooperative Appellate Court in setting aside the election of members from the open category, and the conflict between the byelaws and the statutory provisions.
Ratio Decidendi: The court held that the byelaws restricting non-borrowing members from voting for reserved category candidates were illegal and in conflict with the statutory provisions, and therefore, the election of members from the reserved category was rightly set aside. However, the court found that the Cooperative Appellate Court exceeded its jurisdiction in setting aside the election of members from the open category.
Final Decision: The Writ Petition No.6587/2013 filed by the petitioners elected from the reserved category was dismissed, and the Writ Petition No.6537/2013 filed by the members elected from the open category was partly allowed to the extent of setting aside the election of members from the open category. The judgment of the Cooperative Court was upheld.
1. The legality and validity of the elections of the members of managing committee of respondent/Takli Bhan Vividh Karyakari Seva Society Taklibhan, Tq. Shrirampur (hereinafter referred as to the “Society” for the sake of brevity) is the subject matter involved in the present petitions.
2. The elections of the said Society were held on 03rd April, 2011 for the term 2010-11 to 2015-16. The said elections were held pursuant to the byelaws of the society, wherein the right of the non borrowing members were restricted i. e. non borrowing members were prohibited to cast vote to the reserved category candidates. There are total 13 members of the managing committee, out of said 13 members, 5 are from reserved category i. e. women, other backward class, nomadic tribes, scheduled caste and scheduled tribe. The respondents herein filed dispute U/Sec. 91 of the Maharashtra Cooperative Societies Act (hereinafter referred as to the “Said Act” for the sake of brevity) basically challenging the election of the reserved category members. The Cooperative Court allowed the dispute and set aside the election of the reserved category members. The members who were elected from the reserved category filed appeal before the Cooperative Appellate Court. The Cooperative Appellate Court allowed the appeal, however, went one step further and set aside the complete election of the managing committee. The Writ Petition No.6587/2013 is filed by the members elected from the reserved category and Writ Petition No.6537/2013 is filed by the members elected from the open category, whose election is set aside by the Cooperative Appellate Court.
3. As both the writ petitions are based on common set of facts, they are decided together.
4. Mr. Karpe, the learned counsel for the petitioner in Writ Petition No.6587/2013 during the course of his lucid arguments put forth following propositions.
A. The byelaws of the society are registered. The amendment to the byelaws which declines the right of the non borrowing members to cast vote to the reserved category candidates is also registered/certified as per Sec. 13 of the said Act. As per Sec. 14 of the said Act the byelaws as amended are binding on the society and its members. As the amendment to the byelaw prohibiting the non borrowing member to cast vote to the reserved category candidates is registered, the same is binding on the society and its members. The elections held pursuant to the said byelaws cannot be said to be illegal. If there is no infringement of byelaws, election cannot be set aside. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Bhagwat Sonawane and others Vs. State of Maharashtra and others reported in 2002(5) Bom. C.R. 263.
B. The petitioners have been elected in accordance with byelaws existing and certified at the time of election, the same cannot be set aside.
C. Though Writ Petition No.1702/2011 was filed challenging the byelaw Nos. 9(5), 9(6) and 9(7), High Court did not grant stay to the said byelaws. On the contrary, passed an order that the elections are subject to the decision of the writ petition. The elections were allowed to be proceeded. Subsequently, the writ petition is disposed. While disposing of the writ petition, the Court did not set aside the said amended byelaws. As such, the Courts below could not have entertained the election petition and set aside the election.
D. The Courts below relied on the orders passed in other writ petitions and not in the writ petition filed in respect of present society. The Courts below could not have referred to the orders passed in other writ petitions while considering the validity of the elections of the present society.
E. The restriction in the election programme is permissible. The voting rights can be restricted in the election programme and the bye-laws. The learned counsel relies on the judgment of the Division Bench of this Court in a case of Sanjay D. Jadhav Vs. State of Maharashtra a
