BABAJIKONDAJIGARADETC., .
a
’ THE NASIK MERCHANTS CO-OPERATIVE BANK BID... NASIK & ORS. ETC. ae
_ October 31, 1983
IDA. ‘Desar, oO. CunwaPea REDDY & Aw VARADARAIAN, ot)
Maharashtra Cooperative’ Societies “Act, 1960-~Sec. 73B interpretation of —Reservation of two seats for Scheduled Caites|Scheduled ‘Tribes and weaker
. section on committee of a specified society mandatory—Reserved § seats to be filled
__ in primarily by election~-Failing election alone seats may be filled by appointment or co-option. Election held Pursuant to election notification not mentioning reservation of seats—Illegal. -
Interpretation—* The e equity ry of the statute’ _ Method of construction of a statate—Used.in the past—Still in vogue. “Legislature uses _ appropriate. language to manifest its intention, . : : .
"Administrative Law—Bye-law—~Status of—Cannot be held to be law. or have.
_ the force of law. Incase of: inconsistency between bye-law & statute - Statute prevails, Construction placed on g statutory Provision by executive branch—Not relevant Sor interpreting the provision by court,” .
On expiry of the term of the comniittee known as Board’ of Directors of - a specified society under the Maharashtra Cooperative Societies Act, 1960 the _
_ Collector notified the election programme without specifying that the two seats
. on the committee would be reserved seats; one for the members belonging to the - Scheduled Castes or Scheduled Tribes and one for the weaker ‘section of the members of the society. Pursuant to, that election programme the poll. was held and the result was declared, The said election was challenged by a member : of the society belonging to Scheduléd Tribe on the ground that the whole ‘of the’
election programme is vitiated on account of its non compliance with’ the 7 -mandatory statutory provision enacted i in sec. 73B which prescribed reservation of seats; one in favour of Scheduled Castes or Scheduled Tribes and another in favour of weaker section from the members; of the society.. The Additional Commissioner who heard the election petition declared. the election of ‘the elected members as void and ineffective. -On‘a writ petition, filed by some of.
the elected members the High Court held that it. was not impérative that. the .’
reserved seats must be filled. in gnly by election and the mandate of sec. 73B would be adequately complied with if reserved seats are filled. in by co-option — and there was no error in conducting the election. In these appeals the appel- _
- lants submitted that sec..73B proceded to make a’ ‘statutory reservation. of two seats and declared its preference in fayour of filling in the reserved seats by |
‘
«
, 168 , oo . - SUPREME COURT REPORTS oo. . 1984) Ts.0, election failing which alone the reserved seats were’ to be filled in by appoint-. _ment or co-option.- The respondent submitted tat the filling of the reserved seats was a sine qua non; the method of filling reserved Seats was directory and ‘
. therefore any of the three modes could be adopted.
Allowing the appeals, st ,
. HELD: The élection it in question is. ex facie illegal, ivalid and contrary to law. [781 F] . . Section 73 of the Act requires the Collector to hold election in accordance _ with the Act including sec. 73B. - The. failure to hold election in accordance ’ with the’Act including sec. 73B ‘would’ vitiate. the whole election programme from commencement till the end. It would all the more be so because the failure to hold election according to the provisions of the Act which denies an opportunity to the persons who are eligible to get elected to the reserved seats would certainly vitiate the whole election programme. Therefore, the Collector ” must speeify in the election programme inter alia that there are réserved seats to be filled in by election and the class in whose favour reservation is made. This will be notice to the members eligibte for cont&Sting election to reserved ’ seats so that they may fill io their nomination. In the instant case there is not even a whisper in the election programme whether any of the seats were reserved. The omission is glaring and fatal. Therefore, it can be safely concluded ..
that the. election i is held i in violation of sec. 73B, “(781 D- Fl
Any provision making for reservation must receive such construction as - would advance the purpose and intendment. underlying the provision making reservation and not thwart it. -In the past a method of construction was used . to extend a. remedial Statute called proceeding upon ‘the equity of the statute’. Now a’ days even though that method of construction has fallen into disuse, it is . stillin vogue in somewhat similar from in that if it is manifest that the principles of justice require something to be done which is not expressly provided for in an Act of Parliament, court of justice will take into consideration the spirit and meaning of the Act apart from the words. {775 G-H; 776 B) Hay y. Lord Provost of Perth, £1863) 4 Macq. H. L. (S.C. ) 535 at 544; ’ Re Bethlem Hospital (1875] L.R. ‘19 Eq. 457 and Craies Statute Law, Seventh Edition P, 101-103 referred to. .
No canon a of constriction. can be said to be’ more firmly establised than this that the legislature uses appropriats language to manifest its intention. . In the instant case, the use of the expression ‘shall’ ‘in .sec. 73B clearly mandates obligation to reserve. The’ section itself clearly manifests legislative intention , when it says that ‘ifno such persons are elected or appointed,” the reserved seats may be filled in by co-option. The labguage and the chronology of the methodology of filling in reserved seats employed in sec. 73B provide a clue to its correct construction and there should be:no doubt that opportunity must be provided for filling.in seats by election. It is the failure of the election..—
- machinery to fill in the seats by election which would enable. the concerned authority to fill in seats by appintment or co-option. [776 G-H, 777 A-B]
ar
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BE. GaRAD vy. COOPT, BANE 69
- The bye-laws of a cooperative society. framed in putsualnce of the provisjon of the relevant Act cannot be held to be law or to have the force of law. They are neither statutory in character‘nor they have statutory flavour so as to be raised to the status of law. If there is any conflict between a statute and the subordinate legislation, the statate prevails over subordinate legislation and the bye-law if not in conformity with the statute in order to give effect to the statutory provision the rule or bye-law has to be ignored. The statutory
“ provision has precedence and must be complied with. [780 B-C]
_ Inthe instant case sec. 73B provides a legislative mandate. -.Rule 61 has a status of subsidiary legislation or delegated legislation. {779 H]
Co-operative Central Bank Led. and Ors. v. ’ Additional Industrial Fribunal, Andhra Pradesh and Ors. {1970} 1 S.C.R. 205 referred to. :
A view of law or a legal provision expressed by a "Government Officer cannot afford reliable basis or even guidance in the matter of construction of a legislative measure. It is the ‘function of the Court to constfue legislative measures and in reaching the correct meaning of a statutory provision, opinion
- of executive branch is hardly relevant. Nor can the Court abdicate in favour of such opinion. ‘In the instant case the opinion of the Deputy Registrac as.
. expressed in his letter rand circular has no relevance. 1780 F-G; Dj
Civin Apprttare - JuRIsDICTION : Civil Appeat No. 11991 of. 1983,
“y
From the Judgment and Order dated the 27th April, 1983 ‘of —
: the High Court of Bombay i in Writ Petition No.392 of 1982.
_ AND a
Civil Appeal No. 1810/81. From the Judgment and Order “dated the-8th July, 1981 of the High Court of ‘Bombay i in Writ Petition No.1484 of 1981. :
. VM. Tarkunde, Mrs, M. Karanjawala.and Re ‘Karanjawala, for - ., the appellant in C.A.No, 11991/83. . . M. N. .Phadke, C.K. Ratnaparkhi and -A.N. Savant for the respondents in C.A.No. 11991/83.
x
’ PAR, Mridul, PN. Parekh and P. Mishra for the respondent No, 1
LR. P. Bhatt, K; Rajendra Choudhary and K. S. Choudhary, for: the appellant in 0. PAO.1810/81.
“
. 410 oe _ SUPREME court REPORIS _ | sett Lc. R. 7 o ry
‘Dr. N. M. Ghatate, s y. Deshpande, VB. Joshi and M. N. Shrof for the respondents J in C. A.No..1810/81. - ' “The aden of the Court v was. detvered by a a
Desat, J. Construction of Sec, 73B.of the’ Maharashtra Co-
‘operative Societies. Act, - 1960 (‘Act’ for. short) figures in these two -
~~ appeals arising from the two decesions rendered by the Bombay. High Court, covering the same point and reaching the same conclusion, _ but the latter one. does not take’ note of’ the earlier decision. ‘Re: S.LP. (Civil) No. 7732 83: The Nasik Merchants Co-operative -Bank Ltd., the first respondent, is a co-operative Bank deemed to be "registered under. the Act and is governed by the Act. It was regis- tered on June 11, 1959. It is a specified society within the meaning ~ - .
of the expression in Sec. 73G(1)(vii) of the Act. Accordingly the - election of the members of theCommittee and the. election of the office-bearers by the Committee of the first respondent would be. subject to the provisions of Chapter XI-A and has to be conducted inthe manner . prescribed in the Chapter. The Committee in which .
management of the first respondent vests, is designated as Board of Directors. The term of the members of the Board of Directors’ is
’ five years. The election: to. the Board of Directors for the period °
1981-82 to. 1985-86 - became due. As required by Sec. 144-C, the Collector having jurisdiction in the matter notified the programme of election on October 29, 1981. ‘At.the relevant time, the strength - of the. Board of Directors was 15 in number. .14 Directors were-to be elected by members and one was to be nominated by the Central Co-operative Bank: It is not disputed but in fact conceded that the election programme notified by the Collector did not specify that the two seats on the Board of Directors of the first-respondent would be reserved seats; one for the members belonging to the Scheduled ” Castes or Scheduled Tribes and one for the weaker section of the members who have been granted. loans from ‘the society of an amount . not exceeding Rs. 200 during the year ‘immediately. preceding as required by:Sec. 73B of the Act. Poll was held on December 12, 1981
” and the counting of votes took place on December 14, 1981 and the -
“result was declared on December 17, 1981. Respondents 3 to 16 were declared elected. Thereupon ‘the’ present petitioner, a member of the first respondent-Bank and belonging to the Joshi community ‘which is recognised as a Scheduled Tribe moved an election petition
| “ynder Sec. 144T before the Additional Commissioner, Nasik, calling:
“in question the election of respondents 3 3 to 0 16 to the . Board of by rw
B. K, GARAD y. coorr. BANK & (Des. J. oa . TN
_Ditectors of the first respondent-Bank inter alia on the ground that .
the whole of the election programme is vitiated on account of its non-compliance with the mandatory “statutory provision enacted in’ -
_- Sec. 73B which prescribes reservation of seats;- one in favour of "> Schediiled Castes or Schtduled Tribes and another in favour of weaker .. - section frorh. the members who had borrowed loans not exceeding
Rs. 200 inthe year preceding the year of, election (‘reservation for weaker section’ for short). There were other grounds on which ‘the election of respondents 3 to. 16 was called in question but they ; are no more relevant and need - not -clutter ‘the record here. The Addi-’
tional Commissioner as per his judgment and order dated February : 8; 1982 held that despite. the failure of the first respondent-Bank to- ~ amefrd bye-law 41 (correct bye-law : appears ‘to be 40) even after répeated remindets by the District Deputy Registrar, the mandate of -
‘Sec. 73B will have precedence overt. he whamended bye-law-40.. and ‘asthe election ‘process was set in. motion in contravention of the mandatory provision contained i in Sec. 73B and the relevant rules,
* the result of the election has been materially affected and accordingly | declared the election of respondents Nos. 3 to 16 as void and ineffec-"
tive and directed the: Collector, Nasik to hold the election de novo. —
‘ Respontients Nos. 3407 and 9, 40 and 12 and 14 to 16 6 filed Writ -Petition No. 392-of 1982 in ‘the, High Court of Judicature at
‘Bombay under Art. 227 of the Constitution for a writ.of certiorari. -
A Division Bench of the: Bombay High Court granted the writ and made the rule absolute holding that it is not ‘imperative that the
\: _reserved Seats must be filled in only by election and the mandate of
Sec. 73B would be adequately complied with if reserved seats are filled in by co-option and therefore, there is no error in conducting§
*the election. -Accordingly, the order of the Additional’ Collector was quashed and set aside and thé election petition was dismissed.
- When the petition for special ‘leave to appeal came up before :
” this Court, a direction was given that the matter will be. disposed of - atthe stagé of granting. special-Jeave as if'it isan appeal. Hence |
- this appeal by special leave, Re. C.A. No: 1810/81 :'The Parbhani ~ "District Central, Co-operative. bank Ltd., the second respondent ‘ _ is a. co-operative bank deemed ‘to. be registered under the Act. ‘It is a specified society within’ the meaning . of the | ‘expression in Séc. 73G. The term of members of the Board of Directors expired. | Accordingly, the Collector of Parbhani, the first respondent - notified
‘a programme. of election ‘commencing from’ March 30, 1981 ‘and. -
"ONS
J . w : . .
772. SUPREME COURT REPORTS 11984 Is.cx, ending with the counting of votes and: declaration of result on April os
- 24,1981, The election was held and the result was announced and respondents No. 3 to 12 were declared elected. ‘Thereafter the meet-_
~ ing of the elected members of the Board of Directors is to be con- . vened to elect the office bearers. At that stage, the two appellants filed Writ Petition No. 1484 of 1981 in the Bombay High Court _ questioning the validity of the election of the respondents 3 to’ 12 inter alia on the ground'that the election was held in violation of Sec. _
738 of the | ‘Act,
A Division Hench of the Bombay High Court held that there was some confusion between the procedure for election prescribed _ in the rules and the bye-laws and the one prescribed in Sec. 73 ‘and therefore, the Colléctor did not take steps to hold election to the reserved seats. .The Court further held that the first petitioner did not take any objection until the whole election process was completed and at a later stage approached the Court -to ‘throttle down’ the ‘ election of the office-bearers and that this might indicate a waiver . of the right on the part of the petitioner and also it amounts to acquies- cence and therefore, no interference is called. for at the instance of _ ;
the petitioner.” The Court also observed that co-option being an alternative to election to the reserved seats, the mandate of Sec. 73B would be satisfied if the Board of Directors co-opts two members ‘to provide representation to thé two reserved seats. Approaching the
_ matter from this angle, the writ petition was dismissed. ‘Hence this appeal by special leave. . e
The ouf-come of these two appeals depends upon the construc-
_ tion to be put on Sec. 73B which must subserve the underlying, intendment of that provision. Seo, 73B reads as under :
' “On the committee of such society or class of socie- - - ties as the State Government may, by general or special order, direct; two seats shall be reserved, one for the members who belong to the’ Scheduled Castes or ' Scheduled tiibes and one for the weaker section of the. members who have been granted loans from -the society .. of an amount not exceeding Rs. 200 during the year . . immediately preceding. If no such persons are elected or appointed, | the committee shall- co-opt the required . numberfof members on the committee from amongst the - persons entitled to such representation.” — ; :
e .
yD
¥
. BAK, GARAD v. COOPT, BANK (Desai, J.) «773 ‘Section 73 provides that the management of every society shall
> vest in a committee, constituted in accordance with the Act, the rules . -A . -. and the bye-laws. Sec. 73B mandates that two seats shall be reserved on the committee of such society or class of societies: asthe State
’ Government may, by general or special order, direct, (‘Specified ‘society’ for short) one for the members who belong to the Scheduled
. Castes or Scheduled Tribes and one for the weaker section of the members who have been granted loans from,the society of an amount .
not excceding Rs, 200 during the , year immediately preceding. »
' Sec. 73B further provides that if no. such persons are elected or + _
, appointed, the committee shall co-opt the required number of> —
- members on the committee from amongst the persons entitled to such
‘ representation, ’ . - ; . Cc we
- We may now note the rival contentions. “Appellants assert
_ that the reservation in favour of the Scheduled Castes and Scheduled
~ Tribes and weaker section of the members on the committee of the . society manifests a statutory attempt™giving effect to the provisions —_. - of the Constitution especially the one contained in Arts 43 and 46 -D and has to be given effect as if carrying out the constitutional a mandate enshrined in Arts. 15 and 16 of the Constitution. Proce-
~4 ding along this line; it was submitted that a democratic polity, swears by setting up democratic institutions election, neither by appointment nor co-option. It was submitted that the Legislature. ‘has clearly E indicated its preference-in favour of election failing which alone the reserved seats may be filled in by appointment or co-option. They have called in aid the chronology of methodology set out in Sec. 73B. wherein it is stated that ‘if no such persons are elected or appointed, |
~ - the committee shall co-opt the required number of members on the committee from amongst the persons entitled to such representation.’ F Appellants assert that Sec. 73B- proceeded to make a statutory reser- -.yation of two seats and declared its preferénce in favour of filling. in. — >» . »the reserved. seats by election and that is indicated by the expression;
‘if no such persons are elected or appointed,’ the committee then in order not to defeat legislative intention of giving representation to G the class in whose favour reservation is, made, shall co-opt the © fequired number of members dn the committee: The appellants say that co-option can be availed of as the last resort and cannot be used © to supplant election to defeat. the legislative mandate according priority to election or appointment, They say that co-option can -. H
_ only be resorted to, to effectuate the purpose underlying Sec. 73B if , ‘ y and only if an attempt having been made at first: providing a an e
*
- i ee oe _ SUPREME COURT REPORTS - oy '
. - opportunity to All in reserved seats by élection, failing which appoint.’ ;
“ment and thereafter co-option, which cannot be equated with election
' or appointment so that anyone mode may be adopted for filling in the reserved seats at the whim or caprice or Sweet will either of the statutory authority or the committee of members. .
The respondents excluding: ‘the statutory authority on the other ‘hand contend that the object underlying Sec. 73B is to provide for giving an, portunity to persons belonging to the class in whose —
* favour reservation is made such as members of the Scheduled
~ Casts/Seheduled Tribes or the weaket section of the members of the . ‘society to be on the committee, -The primary importance is of filling + _ in reserved seats and not the methodology because the legislature was aware | that a class of. persons in whose favour reservation is made may not: be available for election, and therefore, ‘provision for appointment as also for caroption has been simultaneously made in Sec. 73B. ~The respondents assert that the filling in of. the reserved seats is a “sine qua non to carry out the mandate of Sec. 73B and not ..
. the mode or method by which the reserved: seats are filled.
“The rival contentions clearly bring to tHe fore ‘the question of
"construction of Sec. 73B. _
The Act was enacted in 1960 and. it repealed . the Bombay. Co-operative Societies Act, 1925. See. 73 provides for the vesting of ©
- the management of every society in.a committee to be constituted - in accordance with the Act, the rules and the bye-laws. At the commen- cement of the Act, there was no provision for reservation of seats in - favour of the members of the Scheduled Castes and the Scheduled
Tribes and the weaker section of the members. Sec. 73B making . __ reservation obligatory was introduced in the Act by Amending’ Act
27 of 1969. Why was this specific amendment made ? Thoworking of the Act must have’ .disclosed ‘a -sorty -state of affairs that even”: though the cooperative movement .was expanding by leaps and © bounds, the members of Scheduled Castes and Schedule Tribes or the | - weaker section of the members of the society were not represented * in the committee and had no opportunity to participate.in the decision.
making process, laying down broad policies and management of the. .
society. - Art. 43 of the Constitution set the goal that the State shall endeavour to promote-cottage industries on .an ‘individual or co-operative basis in rural areas. In our onward march of economic |
* lisea 1s, on, :
Hf
‘he
7 B. K. GaRAD » coorr, BANK (Desi D
-. independence, India” was destined’ to ‘be. a. ‘co-operative commons a. oak wealth. Since independence, co-operative movement. proliferated: in °.. ; all directions, its activites. were. diversified, more especially in the. © | \-” pural areas. Every. activity of a. person | devoted to agriculture : ‘inthe... oo sural area is considerably influenced by the” co-operative movement, oe “+.” such as seed distribution; credit, disposal of agricultural. produce: ete The members of the Scheduled - Castes | and ° ‘Scheduled ° Tribes pree 2
Q dominently in rural areas did not remain unaffected by, the gigantic a the
-_stride that the co-operative movement took... They were directly’ and. “| % 7 substantially affected by it... In order to: -avoid ‘that ‘those who. are re * ~affected by the movement in‘their. vital day to day existence enjoy _ a. ree -_.. second class status by. being denied the opportunity to be’ represented De, - “jn the management council; and decision inaking bodies, 2 * provision rr Ona ... ‘like Sec. 73B was introduced to ensure representation of such. persons oar Tihs “who in the absence of reservation may find it difficult to be elected to “the committee in which the: entire power of management vests. °. 9-0 - 1.” Absence of representation coupled with subjection. to™ the dictates. of 7...) -- » othe society would be antithesis of democratic’ process : teducing such’ ~‘ ‘ ot persons to” serfdom. - A‘ co-operative society isto be governed. by; al a ‘committee elected by democratic process..° This democratic. ‘process’. ~ must permeate in ‘filling i in reserved seats | otherwise the committee. Set _» would not enjoy a. representative character. - One can draw light from™ 0.0 _ “the fprovisions * contained. in : Part™ XVI: of; the: Constitution and: 3): oe especially Arts. 330 and 332 ‘which’ provide for reservation of seats’ a ~ "in the House of People‘ and-.in the Legislative. ‘Assembly “Of every: 8) be. . State’ for the Scheduled Castes and the Scheduled. Tribes. The felt. .°°! : Soo ‘necessities of the time and the historical perspective : of class. domin- 2h : ation led to the constitutional guarantee of reservation’ so that - India ae ~~. can truly be a ‘Sovereign Socialist Secular Democratic’ ‘Republic. . A. pk republic i is made up of mien and institutions. ‘That -is why democratic :: a Sen -.. institutions have to be set up by: providing for election: and to make 0 the democratic institutions truly -representative,. reservation of seats, °
“for those who on account of their - backwardness, _ exploitation and ol unjust treatment both social and’ economic cannot. ‘obtain Tepresen- 2°.) -
“2, tation because of the class ‘domination. This is the ¢ genesis of reser= =
". vation. Therefore,’ any provision . making for. reservation must, ae a _teceive such construction as would advance the purpose and - ‘intend- 2 “ment underlying the provision making - reservation and not thwart it. © 22.0000)
In the past’ a method of construction was ‘used to- extend a remedial |
. “statute called proceeding upon the equity. of the statute. ~ In Hay v. :
. “Lord Provost of Perth?) Lord Westbury observed that the mode of of i”
mo) Ga Face. 535544, oS oo ghee a i
-& . -
776 _ " : “< SUPREME COURT REPORTS 2. “se 1 se
Ts . “9
‘construction known as “the equity. of the statute’ was ‘very: common 7 ~~ with regard. to our earlier statutes, and‘ very’ consistent with the |
~ principle and manner according to which Acts of Parliament ‘ were at ©
_that time framed.’- Undoubtedly, now-a-days” this mode of constru- .. ction has fallen into disuse : Even though the expression ‘the equity.
~- of the statute” has fallen into disuse, it is still in vogue in ‘somewhat,
_ Similar form’ in that if it is manifest that the principles of justice -. require something to be done which is not expressly provided for in -
-an Act of Parliament, ‘a court of justice: will take into consideration oe ‘the spirit -and meaning of the Act apart from the words. | In this’: " context, ‘one’ can recall the words. of Jessel M.R. in Re Bethlem vests
».Hospital,@) . that ‘the equity of the statute’ may as well ‘mean “such athing: as construing an -Act according to: its intent, though not : according. to its words.’(*): Alternatively, one ‘can: ; bring i in Hydon’. So ° test’: more’ often ° noticed by this Court that in order to arrive at true...
; intendment of a statute, the Court should pose ‘to, itself the questions; * a mS) ‘what was the situation prior to the provision under construction,
- QY what mischief or defect . was noticed - before introducing | the
' provision, {3) whether it. was “remedial and . .(4) the ‘reason for the
"remedy. Applying this. test, the same. ‘result: would follow jnasmuch * a “as looking. to the position and, the plight of Scheduled” Castes and: : Scheduled Tribes’ ‘and the weaker section of the members ‘of a society,, ° ; .though they would be subject to the dictate of the’ society they had.) 0: “no voice in the managerial: councils, and that. to. raise the stature ~ ) “and status ‘of such persons So as to, ‘bring +t them: on. the footing of. “ equality with other segments of the society, reservation was ‘provided =. Os _ in the absence of which those in ‘whose favour reservation -was made . | . could not get elected to thé decision: making bodies.’ While ascer- ©
”. taining the true canon of construction ‘applicable to. Sec:. 73B; these. 7
_ aspects must. ‘stare into | our face.”
"Before going in search of any. external aids of construction; Tet us 5 look at the language ‘employed by the “Legislature . because : no. * ‘canon of construction can be said to be more firmly established than” “this that the Legislature uses appropriate. language: to manifest its |
- intention: “No controversy was raised with regard to the power of “" +. “Legistature to prescribe reservation of s seats in the committet in which’. ‘the . management of the society - yests.. The use’ ‘of the. expression wee!
“shall? in Sec. 73B clearly. mandates obligation to reserve, Se
~-Q)- [175] L- R. 19 Eq. 457. . thes 7 o Craies Statute Law, Seat Edition P. 101- 103 x
B.K. GARAD ¥, COOPT. BANK Desa J. » rn a
The next question is how the reserved seats are to be filled in? The section itself clearly manifests legislative intention when it says that ‘if no such persons are elected or appointed,’ the reserved seats may be filled in by co-option. _ Therefore, the pride of place is
, accorded to election of persons eligible to fill in reserved seats. Let there be no mistake that there is nd. reserved constituency which | ° may divide the | society or the electorate. The constituency is the” genera] constituency. Only the seats are reserved. This, would imply that the general body of members will elect persons eligible to
“fill in reserved seats.
"a . . .
“When statute requires a : certain ‘thing ‘to be done in a certain | manner, it can be done in that-manner alone unless a contrary indi- cation is to be found in the statute. If the Legislature uses expression _
‘if no such personis are elected? & indubitably suggests that primarily the reserved ‘seats are to be filled in by election. Failing the election, one can resort to appointment or co-option. The chronology of the _tethodology by which seats are to. be filled in as set out in Sec, 73B clearly manifests the legislative intention. The first and the foremost pride of ‘place is accorded to election. It ought to be so because a representative institution ordinarily must be democratically elected.
' The section therefore, speaks ‘if no such persons are elected’ which _would mean the authorities. charged with a duty to hold election _ "must proceed to arrange for holding the election. If election is held — giving out information that.there are reserved seats and no candidate is forthcoming to contest for the reserved seats, the Legislature in its wisdom. provided that-the seats shall not remain vacant but can be filled in by two subsidiary methods such as appointment or co< option which cannot be put on par or equated with election which is a universally recognised method by which representative institutions
_ are set up. Therefore, the language and the chronology of the methodology of filling in reserved seats employed in Sec. 73B provide :
a-clue to its correct construction ‘and there should be no doubt that opportunity must be provided’ for filling in seats “by election. It is the failure of the election machinery to fill in the seats which would enable the concerned authority to fillin the seats by appointment or
" co-option. . The condition precedent to. filling i in reserved seats ‘by appointment or co-option is holding of the election and failure to. elect such persons would permit resort to other methods of filling
7n the. reserved seats.
It was submitted that the object underlying Sec, 73B can as well’
. be fulfilled by co-optingt wo persons eligible. to fill‘in reserved seats.
“ oO hry e .
>
: me “ ok | “SUPRESc counr nEPoRts oe - 1984) tsn-
|The more ‘vociferous submission ‘was that such ‘construction ‘should “be put on a statutory provision which’ accords with the main thrust of the section and not with peripheral. requirements which would. appear to be directory. “It was urged: that the fundamental requiré-
", ment of Sec. 73B is to provide representation to specified classes therein mentioned and that must be held to be mandatory and not * the method by which the: representation is’ ensured... Further it was
" said that there i is illuminating inter evidence’ in Sec. 738 itself which -* shows that the method of filling in seats is directory: and therefore _three alternative modes. by which: reserved: seats could be filled in-
"were ‘provided i in the provision itself. Proceeditig along this line, it. . was gaid) that co-option can equally ensure: representation tothe - .
qualified « -persons to fill in the reserved seats, and that thérefore,. the - Court should not upset the entired election process on this. account. "If this approach is ever accepted, it Would strike a death-knell of the “democratic principle of giving the constituency the right to elect its
“ representatives and it would be usurped by a coterie of certain elected. .- .
“persons. ‘From. enjoying a direct _tepresentation, . the constituency . would move -backwards atid the process of regress. would be that instead of direct ‘election by the. constituency. which is the statutory -.tight granted by Sec. 73B, the right to select would be -usurped ey. the Board of Directors who would decide who should be co-opted | to fill in the reserved scats.. - Such a fetrograde movement is unde- mocratic. The struggle to get direct representation cannot be thwarted in this manner. This becomes manifest from the’ fact that the power — ‘to co-opt the members to fill in ‘reserved seats is conferred on the. members. of the committee i-¢. on the Board of Directors,” To tersely’ put the issue in focus, the method of-co-option denudes the power of: the constittiency to elect members and is usurped by a
: ‘small body like the Board of Directors. | The outcome is not difficult - to gauge. The committee will co-opt members who would be-their -
‘puppets, totally i ignoring whom the constituency ie, the general body ‘of members ‘would have elécted.. If it is the effect of co-option, it could never be equated with election much. less‘accorded precedence over election, by the general body of the members that is the consti-: |
- tuency..’ Therefore'the submission that’method of. filling in reserved °.
seats is directory and therefore any one of the three modes can be adopted to comply’ with .the mandatory part of Sec. 73B viz, , filling “in reserved seats, does not commend to us. .
- Mr. Phadke, learned counsel wlio appeared for the respondents in one.of the appeals urged that the emphasis is.on filling in reserved -
‘seats arid ‘not: the mode or t method by which the - seats are: filled i in,” . In this connection, he. drew our attention to the . unamended byerlaw
‘No. 40 of the bye-laws’ framed by Nasik Merchants Co-operative - - Bank Lid., the first. respondent in the first matter.” After referring . —
_ to the unamended bye-laws, it was urged that.there was no provision for electing members to the reserved seats. He further urged that
- Sec. 72 requires that the election to the committee has to be held”
according to the Act, the rules and the bye-laws. Reference was also made to the procedure for counting for votes set out in rule 61 of the Maharashtra. Specified Co-operative Societies Election to ~ Committees Rules, 1971 (‘Rulés’ for short), which provide that the |
- Returning Officer shall after the counting of votes declare the candi-
. date to whom the highest number of valid votes has been given, as ‘having been elected: It was pointed out that byé-law No. 40 was:
* amended as late as February 13,- 1983, which was much later than ' the date of the impugned election. The. amended bye-law did make provision for election to'reserved seats. The High Court has also
- noticed amendment of Rule 61 by Maharashtra Specified: Co-opera- ' tive Societies Elections to Committee (Amendment) Rules, 1979. He
‘further drew our. attention to the circular dated Ist February, 1979, issued by the District Deputy Registrar of Co-operative Societies at - Nasik in which he'pointed out that the committee should co-opt required number of members on the committee from’ amongst the persons entitled to representation on the reserved seats. The spécified societies were also requested to amend the bye-laws as early as
‘possible... He also drew our attention to a letter dated June 4, 1979 o
“addressed to the Nasik: Merchant Co-operative Society Bank. Ltd,
‘by the District Deputy Registrar; Nasik pointing out therein that if _ the bye-law is not amended the reserved seats should be filled in by co-option and that the compliance should be reported before ‘March -
31, 1979. He again requested the Bank. to amend the bye-laws to — bring them in conformity with the requiremetits of Sec. 73B. Relying on the unamended: bye-law, rule 61 and the aforementioned two . documents, it was submitted that the Government itself did not
° consider election to be the only mode or-method.of filling i in, the
_resérved seats and persistently requested the Bank-to Co-opt necessary “number of members to- fill in the reserved seats, and therefore, it is not proper to invalidate the, whole Process of election, We remain.
- unconvinced.”
Sec. 73B provides a legislative mandate. Rule 61 has a ‘status , of. subsidiary legislation or delegated legislation, Bye-law of a Co-.
Be GARAD y. COOPT.-BANK (Desai, J. ). . oe 8 te e. e
70 0 te SUPREME COURT REPORTS cs ‘(1981 scx 7 operative sociéty can at best: have the status of an Article of Associa tion of a company governed by the Companies Act, 1956 and as’ "held by this Court in Co-operative Central Bank Ltd. and Others v. Additional Industrial Tribunal, Andhra Pradesh and. Others(!) the. ___ bye-laws of a co-operative society framed i in pursuance of the provi- -
- sion of the relevant Act cannot, be held to ‘be law or to have the force of law.. They are neither statutory in character nor they have’ statutory. flavour so as to be raised to the status of law. Nowif ~ _'. there is any conflict between a statute and the subordinate legislation, .
" it does not require elaborate reasoning to firmly state that the statute
"prevails ‘over subordinate legislatioff and the bye-law if not in con-. formity with the statute in order to-give effect to the statutory provi- , sion the rule or bye-law has to be ignored. The statutory provision has precedence and must be complied with, Further the opinion of the Deputy Registrar as expressed in his circular dated February 1; 1979 and-his letter dated June 4, 1979 has no relevance because his uo lake.of knowledge or misunderstanding of law as expressed in his
-opinion has no relevance. -The High Court relying upon the afore-
. mentioned two documents observed as under’:
“There i is no ‘inconsistency between Section 73B and the bye-laws because even the Government has construed Section 73B in such manner that even though the bye-laws dre not amended and reserved. seats remain unfilled by election the same can be filled up by co-option.”’.
* 8,
“matter of construction of a legislative measure. It is the function of the Court to construe legislative measures and in reaching the — correct meaning of a statutory provision, opinion of executive branch is hardly relevant. Nor can 1 the Court abdicate i in favour ‘of such | opinion.
“The provision contained in Chapter XI-A applies to election to the committees of specified societies categorised in Sec. 73B, Sec. .~ 144-C requires. the Collector to draw an election programme and —
‘arrange for conducting the election or undet his control by the Returning Officer according to the programme. Now ‘the election a (1) 1970] 1 SCR 205
With respect, we find it difficult to subscribe to this untenable . approach that a view of law or a legal provision expressed by a — _Government Officer can afford reliable basis or even guidance in the - od a BK GARAD Y. . COOPT: BANK (Desa, I= or rig programme has to be published, The _ programme therefore, must _ in. order to comply with legal formality -show whether any of the - ; . seats to be filled j in are reserved and specify the class i in whose favour ue ._ + feseryation has. “been made, ‘so as to'give notice to persons ciigible for contesting election to reserved" seats: ‘This becomes manifestly - ~ glear from the form. prescribed’ for filling in the nomination paper being Form No. 2 appended to the rules. "In the case of reserved) *. B. oo ‘seats a further declaration has to be made j in the’ nomination form -_ * that the candidate ‘belongs to Scheduled Castes.or Scheduled. Tribes. - or Vimukta Jati or the weaker section candidate:.: ‘And this declara- ee . tion has to be’signed by-the candidate himself... “Now therefore, the 2. ~ Collector, a statutory authority charged witha duty to. hold election a ve according to the Act, must specify in the election - programme. inter °° © _aliq that there are reserved seats to. be filled in by election and the .. ~. lass in..whose favour reservation is. made. This will be notice to- o - ” the members eligible for contesting election to. reserved seats so that” they may fillin their . nomination. There’ is‘ not. even a whisper i in , the election programme whether any of the Seats were reserved... The > — ' omission is glaring and fatal. As poiated out earlier,’ election has ° A ‘he to be held to form ‘the committee. . - Sec. 73 requires the Collector to. *). 5 6+ ‘hold’ election in accordance with the Act including Sec, 73B. The ¢.... °°’: _ faiture'to hold election in accordance: with the Act including Sec, 73B 2 8 oe = would vitiate the whole election programme from .commencement till "°° 7 ‘the end: dt would all the more be so’because the failure to hold op "election according’ to. the provisions .of the Act which denies‘an ~ | | = ‘opportunity to. the persons. who are eligible. ‘to. get elected to the. @ reserved seats. would certainly vitiate the whole election programme. .- -. * One can: safely coazlude that the election i is held in violation of. ae -Sec...73B, ‘Therefore, in our opinion, the High‘ Court wasin @fror “in upholding the ; election, ‘which i is ex x facie’ illegal, invalid and ne E we contrary, to law. bt a Ps or nee
Foti st
- “Kecordingly’t both these. appeals succeed Civil il Appeal arising" ae “from S.L.P. No. 7732/83 is “allowed, and the. decision of the High a - Court is quashed and set aside 2 and the one: e-rendered by d the Addi- moa Ge tional Commissioner i is testored. ey, i See ae Civil. Appeal No... 1810/81 is allowed tid: the judginent| and pee Bt - 3 “order of the High Court’ are set aside.- A writ: be issued quashing.° 90. =: » and setting ‘aside the ‘election of respondents 3 to 12 to the Board of 2° Ho Directors of the Parbhani District Co-operative Bank Ltd. re
7 * ot. SUPREME COURT REPORTS. _ “seat S.C.R.
" ‘The concerned statutory authority i in both the cases ia ‘proceed to hold the election afresh as early as possible and-should " complete the: process. within a period of 3' months from today. In the meantime, the status quo as on today should continue, There
“will be no orders as to. costs of bearing i ‘in this Court.
BS
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HsK. as sree | aad