ivil Appeal No 11991 of 1983
From the Judgment and Order dated the 27th April 1983 of the High Court of Bombay in Writ Petition No392 of 1982
AND Civil Appeal No181081
From the Judgment and Order dated the 8th July 1981 of the High Court of Bombay in Writ Petition No1484 of 1981
VM Tarkunde Mrs M Karanjawala and R Karanjawala for the appellant in CANo 1199183
MN Phadke CK Ratnaparkhi and AN Sawant for the respondents in CANo 1199183
PR Mridul PN Parekh and P Mishra for the respondent No 1 RP Bhatt K Rajendra Choudhary and KS Choudhary for the appellant in CA No181081
770 Dr NM Ghatate SV Deshpande VB Joshi and MN Shroff for the respondents in CA No 181081
The Judgment of the Court was delivered by DESAI J
Construction of Sec
73B of the Maharashtra Cooperative Societies Act 1960  Act  for short figures in these two appeals arising from the two decisions 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 SLP Civil No 773283 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 registered on June 11 1959
It is a specified society within the meaning of the expression in Sec
73G1vii of the Act
Accordingly the election of the members of the Committee 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 in the 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 14 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 under Sec 144 before the Additional Commissioner Nasik calling in question the election of respondents 3 to 16 to the Board of 771 Directors of the firs 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 Scheduled Castes or Scheduled Tribes and another in favour of weaker section from the members who had borrowed loans not exceeding Rs 200 in the 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 Additional Commissioner as per his judgment and order dated February 8 1982 held that despite the failure of the first respondent Bank to amend bye law 41 correct bye law appears to be 40 even after repeated reminders by the District Deputy Registrar the mandate of Sec
73B will have precedence overt he unamended bye law 40 and as the election process was set in motion in contravention of the mandatory provision contained 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 ineffective and directed the Collector Nasik to hold the election de novo
Respondents Nos 3 to 7 and 9 10 and 12 and 14 to 16 filed Writ Petition No 392 of 1982 in the High Court of Judicature at Bombay under article 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 the 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 at the stage of granting special leave as if it is an appeal
Hence this appeal by special leave
CA No 181081 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 Sec
73G The term of members of the Board of Directors expired
Accordingly the Collector of Parbhani the first respondent notified programme of election commencing from March 30 1981 and 772 ending with the counting of votes and declaration of result on April 24 1981
The election was held and the result was announced and respondents No 3 to 12 were declared elected
Thereafter the meeting of the elected members of the Board of Directors is to be convened 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
73B of the Act
A Division Bench 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
73B and therefore the Collector 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 acquiescence 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 the two reserved seats
Approaching the matter from this angle the writ petition was dismissed
Hence this appeal by special leave
The out come of these two appeals depends upon the construction to be put on Sec
73B which must subserve the underlying intendment of that provision
73B reads as under On the committee of such society or class of societies 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 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
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
 773 Section 73 provides that the management of every society shall vest in a committee constituted in accordance with the Act the rules and the bye laws
73B mandates that two seats shall be reserved on the committee of such society or class of societies as the 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 exceeding Rs 200 during the year immediately preceding
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
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 and has to be given effect as if carrying out the constitutional mandate enshrined in articles 15 and 16 of the Constitution
Proceeding 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 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  Appellants assert that Sec
73B proceeded to make a statutory reservation of two seats and declared its preference 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 the class in whose favour reservation is made shall co opt the required number of members on 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 only be resorted to to effectuate the purpose underlying Sec
73B if and only if an attempt having been made at first providing an 774 opportunity to fill in reserved seats by election failing which appointment 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 opportunity to persons belonging to the class in whose favour reservation is made such as members of the Scheduled CastsScheduled Tribes or the weaker 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 co option 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 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 commencement 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
73B making reservation obligatory was introduced in the Act by Amending Act 27 of 1969
Why was this specific amendment made  The working of the Act must have disclosed a sorry 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
article 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 775 independence India was destined to be a co operative commonwealth
Since independence co operative movement proliferated in all directions its activities were diversified more especially in the rural areas Every activity of a person devoted to agriculture in the rural area is considerably influenced by the co operative movement such as seed distribution credit disposal of agricultural produce etc
The members of the Scheduled Castes and Scheduled Tribes predominantly in rural areas did not remain unaffected by the gigantic stride that the co operative movement took
They were directly and substantially affected by it
In order to avoid that those who are affected by the movement in their vital day to day existence enjoy a second class status by being denied the opportunity to be represented in the management council and decision making bodies a provision like Sec
73B was introduced to ensure representation of such persons who in the absence of reservation may find it difficult to be elected to the committee in which the entire power of management vests
Absence of representation coupled with subjection to the dictates of the society would be antithesis of democratic process reducing such persons to serfdom
A co operative society is to be governed by a committee elected by democratic process
This democratic process must permeate in filling in reserved seats otherwise the committee would not enjoy a representative character
One can draw light from the provisions contained in Part XVI of the Constitution and especially articles 330 and 332 which provide for reservation of seats in the House of People and in the Legislative Assembly of every State for the Scheduled Castes and the Scheduled Tribes
The felt necessities of the time and the historical perspective of class domination led to the constitutional guarantee of reservation so that India can truly be a Sovereign Socialist Secular Democratic Republic
A republic is made up of men and institutions
That is why democratic institutions have to be set up by providing for election and to make the democratic institutions truly representative reservation of seats for those who on account of their backwardness exploitation and unjust treatment both social and economic cannot obtain representation because of the class domination
This is the genesis of reservation
Therefore 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
In Hay vs Lord Provost of Perth Lord Westbury observed that the mode of 776 construction known as the equity of the statute  was very common 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 construction 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 the spirit and meaning of the Act apart from the words
In this context one can recall the words of Jessel MR in Re Bethlem Hospital that the equity of the statute  may as well mean such a thing as construing an Act according to its intent though not according to its words
Alternatively one can bring in Hydon s 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 1 what was the situation prior to the provision under construction 2 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 inasmuch 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 no voice in the managerial councils and that to raise the stature and status of such persons so as to bring them on the footing of equality with other segments of the society reservation was provided in the absence of which those in whose favour reservation was made could not get elected to the decision making bodies
While ascertaining the true canon of construction applicable to Sec
73B these aspects must stare into our face
Before going in search of any external aids of construction let us 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 Legislature to prescribe reservation of seats in the committee in which the management of the society vests
The use of the expression shall  in Sec
73B clearly mandates obligation to reserve
777 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 no reserved constituency which may divide the society or the electorate
The constituency is the general constituency
Only the seats are reserved
This would imply that the general body of members will elect persons eligible to fill in reserved seats
When statute requires a certain thing to be done in a certain manner it can be done in that manner alone unless a contrary indication is to be found in the statute
If the Legislature uses expression if no such persons are elected  it 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 methodology 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 fill in the seats by appointment or co option
The condition precedent to filling 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 in the reserved seats
It was submitted that the object underlying Sec
73B can as well be fulfilled by co opting two persons eligible to fill in reserved seats
778 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 requirement 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 is illuminating inter evidence in Sec
73B 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 in the provision itself
Proceeding along this line it was said that co option can equally ensure representation to the qualified persons to fill in the reserved seats and that therefore the Court should not upset the entire 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 representation the constituency would move backwards and the process of regress would be that instead of direct election by the constituency which is the statutory right granted by Sec
73B the right to select would be usurped by the Board of Directors who would decide who should be co opted to fill in the reserved seats
Such a retrograde movement is undemocratic
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 ie on the Board of Directors
To tersely put the issue in focus the method of co option denudes the power of the constituency 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 ignoring whom the constituency ie the general body of members would have elected
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 constituency
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 who appeared for the respondents in one of the appeals urged that the emphasis is on filling in reserved 779 seats and not the mode or method by which the seats are filled in
In this connection he drew our attention to the unamended bye law No 40 of the bye laws framed by Nasik Merchants Co operative Bank Ltd 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  Rules  for short which provide that the Returning Officer shall after the counting of votes declare the candidate to whom the highest number of valid votes has been given as having been elected
It was pointed out that bye 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 operative 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 specified 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 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 requirements 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 in the reserved 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
73B provides a legislative mandate
Rule 61 has a status of subsidiary legislation or delegated legislation
Bye law of a co 780 operative society can at best have the status of an Article of Association of a company governed by the and as held by this Court in Co operative Central Bank Ltd and others vs Additional Industrial Tribunal Andhra Pradesh and Others 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 provision 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 lake 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 Section 73B and the bye laws because even the Government has construed Section 73B 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
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 under his control by the Returning Officer according to the programme
Now the election 781 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 in are reserved and specify the class in whose favour reservation has been made so as to give notice to persons eligible for contesting election to reserved seats
This becomes manifestly clear from the form prescribed for filling in the nomination paper being Form No 2 appended to the rules
In the case of reserved seats a further declaration has to be made in the nomination form that the candidate belongs to Scheduled Castes or Scheduled Tribes or Vimukta Jati or the weaker section candidate
And this declaration has to be signed by the candidate himself
Now therefore the Collector a statutory authority charged with a duty to hold election according to the Act must specify in the election programme inter alia that there are reserved seats to be filled in by election and the class in whose favour reservation is made
This will be notice to the members eligible for contesting election to reserved seats so that they may fill in their nomination
There is not even a whisper in the election programme whether any of the seats were reserved
The omission is glaring and fatal
As pointed out earlier election has to be held to form the committee
73 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
One can safely conclude that the election is held in violation of Sec
73B Therefore in our opinion the High Court was in error in upholding the election which is ex facie illegal invalid and contrary to law
Accordingly both these appeals succeed Civil Appeal arising from SLP No 773283 is allowed and the decision of the High Court is quashed and set aside and the one rendered by the Additional Commissioner is restored
Civil Appeal No 181081 is allowed and the judgment and order of the High Court are set aside
A writ be issued quashing and setting aside the election of respondents 3 to 12 to the Board of Directors of the Parbhani District Co operative Bank Ltd 782 The concerned statutory authority in both the cases should 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 hearing in this Court
HSK Appeals allowed


Summary:
On expiry of the term of the committee 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 Scheduled Tribe 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 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 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 there was no error in conducting the election
In these appeals the appellants submitted that sec
73B proceeded to make a statutory reservation of two seats and declared its preference in favour of filling in the reserved seats by 768 election failing which alone the reserved seats were to be filled in by appointment or co option
The respondent submitted that 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  HELD The election in question is ex facie illegal invalid 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 sec73B 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 specify in the election programme inter alia that there are reserved seats to be filled in by election and the class in whose favour reservation is made
This will be notice to the members eligible for contesting election to reserved seats so that they may fill in 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 is held in violation of sec
73B 781 D F 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 still in 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 a court of justice will take into consideration the spirit and meaning of the Act apart from the words
775 G H 776 B Hay vs Lord Provost of Perth 1863 3 Macq
HL SC 535 at 544 Re Bethlem Hospital 1875 LR 19 Eq
457 and Craies Statute Law Seventh Edition P 101 103 referred to
No canon of construction can be said to be more firmly established than this that the legislature uses appropriate 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 if no such persons are elected or appointed  the reserved seats may be filled in by co option
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 by election which would enable the concerned authority to fill in seats by appointment or co option
776 G H 777 A B 769 The bye laws of a cooperative 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
If there is any conflict between a statute and the subordinate legislation 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 provision the rule or bye law has to be ignored
The statutory provision has precedence and must be complied with
780 B C In the 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 Ltd and Ors
vs Additional Industrial Tribunal Andhra Pradesh and Ors
1970 1 SCR 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 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
In the instant case the opinion of the Deputy Registrar as expressed in his letter and circular has no relevance
780 F G D