1996(4) ALL MR 532
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M. LODHA, J.

Sau. Minakshi Murlidhar Chodke And Ors. Vs. The Additional Commissioner

Writ Petition No.4788 of 1996

21st September, 1996

Petitioner Counsel: Shri. A. Y. SAKHARE
Respondent Counsel: Mrs. MOGRE

Maharashtra Co-operative Societies Act (1960) S.144E - Maharashtra Specified Co-operative Societies Elections to Committee Rules (1971) R.23 - Bye-laws of specified society approved by Registrar - Providing additional qualifications for eligibility - Not in any manner inconsistent with the Act - Could not be ignored.

Where the bye-laws framed by the society are not inconsistent with the statutory provisions of the rules framed thereunder and the said bye-laws provide for eligibility of a candidate to contest as director of the committee of the society, the said bye-laws cannot be ignored and have to be considered to find out whether such person is qualified or not. Bye-law No.31 of the Bye-Laws of the respondent no.4 society which provides that the member shall not be eligible to be elected as director unless (i) he is a member of the bank for continuous two years and had maintained deposit account with the Bank for at least one continuous year on 31st March of the year immediately preceding the year in which the elections are to be held and (ii) has not incurred any disqualification under the provisions of the Act, Rules and the bye-laws, cannot be said to be inconsistent in any manner with Section 144 (E) of the Maharashtra Co-operative Societies Act and, therefore, the said bye-laws are required to be taken into consideration while finding out whether a particular member is qualified to contest the election as director or not and the Returning Officer having considered the qualifications of the present petitioners by referring to bye-law no.31 of bye-laws of the respondent no.4 society, cannot be said to have committed any error of law. AIR 1984 SC 192 and 1996 C.T.J. 235 Referred. [Para 9]

Cases Cited:
AIR 1984 SC 192 [Para 1]
1996 C.T.J. 235 [Para 2]
(1970) 1 SCR 205 : AIR 1970 SC 245 [Para 7]
1984 C.T.J. 125 [Para 8]
1987 C.T.J.229 [Para 8]


JUDGMENT

JUDGMENT :- Mr. Sakhare, the learned counsel for the petitioners, contends that the returning officer committed serious error in rejecting the nominations of the petitioners by relying upon bye-law no.31 of Bye Laws of the Bank and the Additional Commissioner also seriously erred in sustaining the said order. According to Mr. Sakhare, the disqualification for being elected to the committee of respondent no.4 society which is specified is governed by section 144E of the Maharashtra Co-operative Societies Act, 1960 and while scrutinizing the nomination papers, the returning officer has to act in accordance with rule 23 of the Maharashtra Specified Co-operative Societies Elections to Committee Rules, 1971. Mr. Sakhare contends that bye laws have no statutory force and cannot be equated with the statutory provision and even if bye law no.31 of Bye Laws of the society provided for eligibility for election for director, the same could not have been considered in view of the provisions of Section 144E of the Maharashtra Co-operative Societies Act, 1960. In support of his contention Mr. Sakhare, relied on the decision of the Apex Court in Balaji Kondaji Garad and others.vs.Nasik Merchants co-operative Bank Ltd., Nasik and others, AIR 1984 SC 192.

2. Per contra, Mrs. Mogre, the learned Assistant Government Pleader for respondent nos.1 to 5 submits that the present bye laws of the society were approved by the Registrar and accordingly the said bye laws have equal force as the provisions of the Maharashtra Co-operative Societies Act and the Rules under the Act and the said bye laws have to be considered while examining the eligibility and the qualification of a person contesting election to the committee of the society. In support of her contention, the learned Assistant Government Pleader relied on a decision of this Court in Jairam vs. The State of Maharashtra, 1996 C.T.J. 235.

3. I have considered the contentions of the learned counsel for the parties. Section 144E of the Maharashtra Co-operative Societies Act reads thus :

"144E. Disqualifications for membership.

(1) A person shall be disqualified for being elected as, and for being a member of the committee of any specified society, -

(a) if he is a salaried employee of any society (other than a society of employees themselves) or holds any office of profit under any society, except when he holds or is appointed to the office of a Managing Director or any other office declared by the State Government by general or special order not to disqualify its holder or is entitled to be or is elected, appointed or co-opted to any reserved seat on the committee of a society under section 73BB;

(b) if he has been convicted of an offence punishable under section 153A or section 171E or 171F or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code, or unless section 144-Q or clause (a) of sub-section (2) of section 144R of this Act, unless a period of six years has elapsed of five years since the date of his conviction;

(c) if he has found convicted by a Court in India for any offence and sentenced to imprisonment for not less than two years, unless a period of five years has elapsed since his release;

(d) if he is found guilty of a corrupt practice by the Commissioner of the Division, unless a period of six years has elapsed since the date on which the decision of the Commissioner takes effect;

(e) if he so disqualified by or under any other provision of this Act.

(2) For the purpose of clause (a) of sub-section (1), a person shall not be deemed to hold an office of profit under a society, if he does not receive any remuneration other than compensatory allowance, or honorarium payable under sub-section (2) of section 65 not exceeding rupees six thousand per year.

Explanation. - In this sub-section "compensatory allowance" means the travelling allowance, the daily allowance or such other allowance which is paid to the holder of the office for the purpose of meeting the personal expenditure in performing the functions as holder of that office.

(3) Notwithstanding anything contained in clause (b) or (c) of sub-section (1) a disqualification under either clause shall not, in the case of a person who on the date of the conviction is a member of any specified society, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence until, that appeal or application is disposed of by the Court."

4. Rule 23 of the Maharashtra Specified Co-operative Societies Election to Committee Rules, 1971 reads as follows :-

"23. Scrutiny of nomination papers. -

(1) On the date fixed for the scrutiny of nomination papers under Rule 16, the candidates, their agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate but no other person, may attend at the time and place appointed in this behalf under Rule 16, and the Returning Officer, shall give them all reasonable facilities for examining the nomination paper, of all candidates which have been delivered as required by Rule 19.

(2) The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds, that is to say :-

(a) that the candidate is disqualified for being chosen to fill the seat by or under the Act;

(b) that the proposer is disqualified from subscribing a nomination paper;

(c) that there has been a failure to comply with any of the provision of Rule 19 to 21;

(d) that the signature of the candidate or the proposer on the nomination paper is not genuine.

(3) Nothing contained in clause (c) or (d) of sub-rule (2) shall be deemed to authorise the rejection of the nomination of any, candidate, on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.

(4) The Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.

(5) The Returning Officer shall hold the scrutiny on the date appointed in this behalf under Rule 16 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control;

Provided that, in case any objection is raised by the Returning Officer or is made by any other person, the candidate concerned may be allowed time to rebut it not later than the next day, and the Returning Officer shall record his decision on the date to which the proceedings have been adjourned.

(6) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.

(7) For the purposes of this rule the production of a certified copy of an entry made in the voters list of the relevant constituency shall be conclusive evidence of the right of any voter named in that entry to stand for election, unless it is proved that the candidate is disqualified."

5. There is no dispute that the respondent no.4 society is a specified society and it has framed its own bye laws which have been approved by the Registrar. Bye Law 31 has been produced by the petitioner as Exhibit 'C' alongwith the writ petition which provides for eligibility for election as director and reads thus :

"A member shall not be eligible to be elected as Director unless (i) he is member of the Bank for at least two continuous years and had maintained deposit account with the Bank for at least one continuous year on 31st March of the year immediately preceding the year in which the elections are to be held and (ii) has not incurred any disqualification under the provisions of the Act, Rules and the bye-laws."

6. There is no dispute that if bye-law no.31 can be taken into consideration to scrutinize the eligibility of the present petitioners for election as directors, they do not qualify.

7. In Babaji Kondaji Garad and others vs. Nasik Merchants Co-operative Bank Ltd., Nasik and others (cited supra), the Apex Court in paragraph 15 of the report held thus :-

"15. Section 73-B provides a legislative mandate. Rule 61 has a status of subsidiary legislation or delegated legislation. Bye-law of a co-operative society can at best have the status of an Article of Association of a company governed by the Companies Act, 1956 and as held by this Court in Co-operative Central Bank Ltd. vs.Addl. Industrial Tribunal, Andhra Pradesh, (1970) 1 SCR 205 : (AIR 1970 SC 245) the bye-laws of a co-operative society framed in pursuance of the provision 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. Now if 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 legislation and the bye-law if not in conformity with the statute in order to give effect to the statutory provisions 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 lack of knowledge or misunderstanding of law as expressed in his opinion has no relevance. The High Court relying upon the aforementioned two documents observed as under :

"There is no inconsistency between S.73-B and the bye-laws because even the Government has construed Section 73-B in such manner that even though the bye-laws are not amended and reserved seats remain unfilled by election the same can be filled up by co-option."

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 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 the Court abdicate in favour of such opinion."

8. This Court in Jairam's case (cited supra) has held thus :-

"20. While considering the effect of such bye-law which provides further qualifications than the qualification laid down under Section 73FF of the Maharashtra Co-operative Societies Act, 1960 and Rule 58(1) of the Maharashtra Co-operative Societies Rules, 1961, it is observed by the learned Single Judge of this Court, in the case of Sambha s/o. Gangaram Pikale v. The State of Maharashtra & others, (Cited supra) :

" It cannot be said that no additional qualifications can be prescribed under the rules. It would be within the jurisdiction of the Registrar to examine whether the bye-laws including such qualifications are proper and reasonable. Since the present bye-law is approved by the Registrar, it can well be presumed that the Registrar has accepted its necessity."

Thus, the import and legality of such bye-law is fully considered in this later judgment with reference to the provisions of Section 73FF of the Maharashtra Co-operative Societies Act, 1960, and Rule 58(1) of the Rules framed thereunder. In such circumstances, the controversy raised in the present matter is set at rest by this judgment delivered by this Court in the case of Sambha s/o Gangaram Pikale v. The State of Maharashtra & others (Cited supra).

11. The learned Counsel appearing for respondent nos.3 and 4 has also referred to the judgment of Division Bench of this Court in the case of Pandurang Hindurao Patil v. The State of Maharashtra & Others, (1984 C.T.J.125) and had drawn my attention specifically to the observations in para 34 of the judgment at page 142. He has also referred to the judgment of the learned Single Judge of this Court, in the case of Shabbir Tayabali Kanadia v. The Bombay Mercantile Co-operative Bank Ltd., and others, (1987 C.T.J.229). Considering the observations made in both these judgments, it is very clear that the bye-laws, if any framed by the Co-operative Society and which are approved by the Registrar have the equal force as the provisions of the Act and the Rules under the Act. The bye-laws are required to be taken into consideration while finding out whether a particular member is qualified or not to contest the election. Thus, considering all these judgments cited by the learned Counsel appearing for respondent nos. 3 and 4, I am of the opinion, that the election rule 2(e) of Part-I of the election rules framed by the Society is not contrary to the provisions of Section 73FF of the Maharashtra Co-operative Societies Act, 1960 and Rule 58(1) of the Rules framed thereunder. Only the additional qualifications are laid down by the Society as to who should be eligible to contest the election."

9. It is true if there is any conflict between a statute or the rules framed thereunder and the bye-laws of the society, the bye-laws have to be ignored and cannot prevail. But whether the bye-laws framed by the society are not inconsistent with the statutory provisions of the rules framed thereunder and the said bye-laws provide for eligibility of a candidate to contest as director of the committee of the society, the said bye-laws cannot be ignored and have to be considered to find out whether such person is qualified or not. Bye-law No. 31 of the Bye-Laws of the respondent no.4 society which provides that the member shall not be eligible to be elected as director unless (i) he is a member of the bank for continuous two years and had maintained deposit account with the Bank for at least one continuous year on 31st March of the year immediately preceding the year in which the elections are to be held and (ii) has not incurred any disqualification under the provisions of the Act, Rules and the bye-laws, cannot be said to be inconsistent in any manner with Section 144E of the Maharashtra Co-operative Societies Act and, therefore, the said bye-laws are required to be taken into consideration while finding out whether a particular member is qualified to contest the election as director or not and the Returning Officer having considered the qualifications of the present petitioner by referring to bye-law no.31 of bye-laws of the respondent no.4 society, cannot be said to have committed any error of law. The Additional Commissioner also therefore did not commit any error in rejecting the appeal filed before him under section 152-A of the Maharashtra Co-operative Societies Act.

10. The Writ Petition has no merit and accordingly dismissed in limits.

Petition dismissed.