FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7790 OF 2011 "Shivaji Digambar Kapse Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 1 Mr. V.D. Salunke, Advocate for petitioner. Mr. V.D. Rakh, AGP for respondent Nos. 1to 3. Mr. R.N. Dhorde, Advocate for respondent Nos. 4 to 6. CORAM :- B.R. GAVAI & M.T. JOSHI, JJ. DATE :- 21st OCTOBER, 2011. PER COURT :- 1] The petitioner has assailed the order passed by the Collector, dated 30.9.2011, thereby authorizing the Assistant Registrar Cooperative societies to convene a meeting the A.P.M.C. Kallamb, on 8.10.2011 to discuss the no confidence motion against the Chairman and Vice Chairman of the APMC, Kallamb and the consequential notice issued by the Assistant Registrar, Cooperative Societies dated 30.9.2011, for the aforesaid purpose. 2] Vide order dated 5.10.2011, the learned Single Judge of this court had refused the prayer for staying the meeting but, had, however, directed that the meeting that would be held, would be subject to the decision of the present petition and till then the vacancy of the post of the petitioner shall not be FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7790 OF 2011 "Shivaji Digambar Kapse Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 2 declared. However, it appears that subsequently before the learned Single Judge, an issue regarding jurisdiction was raised and accordingly, the learned Single Judge vide order dated 18.10.2011 held that the petition would lie before the Division Bench and not before the Single Judge and this is how the petition is before us. 3] We have heard Shri Salunke, learned counsel for the petitioner, learned AGP Shri Rakh and Shri Dhorde, Advocate for respondent Nos. 4 to 6. 4] Shri Salunke, has pressed 3 submissions in support of the petition. (1) that, the bare perusal of sub-section (3) of Section 23A would reveal that the meeting for considering the no confidence motion has to be convened by the Collector and it is not permissible for him to delegate that power. It is, therefore, submitted that the Collector had no authority to delegate the power to the Assistant Registrar Cooperative Societies to convene a meeting. He submits that since the word "shall" is used in the said section, no one else than the Collector will be empowered to convene the meeting. He has placed reliance on the judgment of FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7790 OF 2011 "Shivaji Digambar Kapse Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 3 the apex Court in the matter of “Bhavnagar University Vs. Palitana Sugar Mill Private Limited” reported in 2003(2) SCC 111 and in the matter of “Babaji Kondaji Garad and others Vs. Nasik Merchants Cooperative Bank Ltd. And others” reported in 1984(1) Bom.C.R. 399. (2) The second submission of the learned counsel is that, since notice was for a joint no confidence motion against Chairman and Vice chairman, it was not permissible. The learned counsel in this respect relies on the judgment of the learned Single Judge in the matter of " Shivkant Haribhau Bangar Vs. Gramsevak and others” reported in 2010(4) Bom.C.R. 191. (3) The third submission that is raised on behalf of the petitioner is that, the presiding officer has used only one ballot without mentioning the names of the Chairman and Vice Chairman and as such, the no confidence motion is vitiated. He therefore submits that this has resulted in grave procedural irregularity, inasmuch as, the voters were deprived of exercising their independence choices. Some voter might have supported the Vice Chairman whereas might not have supported the Chairman. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7790 OF 2011 "Shivaji Digambar Kapse Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 4 5] Learned AGP and Shri Dhorde, on the contrary submits that the no confidence motion has been passed by a requisite majority inasmuch as 13 members out of 18 have supported the no confidence motion. It is therefore, submitted that since the no confidence motion has been passed by the requisite majority, it will not be appropriate for this court to interfere in the extraordinary jurisdiction under Article 226 of the Constitution of India. 6] No doubt, learned counsel for petitioner is right in relying on the judgment of the Apex Court in the matter of “Bhavnagar University” and “Babaji Garad” (supra) , in support of the proposition that when law requires a particular thing to be done in a particular manner, it has to be done in that manner alone or not at all. However, in the case of Bhavnagar (supra) the Apex Court was considering the relevant provisions of the Gujarat town Planning and Urban Development Act, and lapsing of the reservation after a period of 10 years. It was considering an issue as to what would mean by the “steps for acquisition”. In so far as the judgment in the matter of “Babaji Garad” (supra) is concerned, the Apex Court was considering the mandatory reservation as provided under Sections 73(B) of the Maharashtra Cooperative Societies Act. It was held that when a statute FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7790 OF 2011 "Shivaji Digambar Kapse Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 5 specifically requires two seats to be reserved for a particular category, the election of the managing committee of a specified society without reserving such seats would not be permissible. It was, therefore, a case of vested right in case of a particular category to have a reservation in their favour. 7] For appreciating the rival submissions,it would be necessary to refer to Sub-Section (3) of Section 23A of the said Act, which reads thus :- “23-A. (1) ... (2) ... (3)The Collector shall, within 15 days from the date of receipt of the requisition under sub-section (2) convene a special meeting of the committee Provided that, when the Collector convenes such special meeting of the Committee, he shall give intimation thereof to the Chairman, or as the case may be, Vice Chairman and also to the Director...” 8] By now, it is a settled law that a provision in a statute can not be read in isolation but has to be read in harmony with each other. Though under the provision of Section 23, the FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7790 OF 2011 "Shivaji Digambar Kapse Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 6 Collector was required to convene a meeting within 15 days from the date of requisition, the provision of Sub-section(4) thereof, would reveal that the special meeting can be presided over, either by the Collector or by the Officer authorized by him in that behalf. 9] For considering whether a provision is mandatory or directory, it is not necessary that it should always be considered by making reference to the words used in that particular provision. It is not always necessary that wherever the word “may” is used it has to be construed as directory and wherever the word “shall” is used, it has to be construed as mandatory. For construing the provision as mandatory, it is necessary that the legislature must provide for the consequences of non compliance of a particular thing, which is sought to be construed as mandatory. Reliance in this respect can be placed on the judgment of the Apex Court, in the matter of “ Kailas Vs. Nanku” reported in 2005(4) SCC 480, In the present case, no such consequences are provided under sub-section (3) of section 23A. On the contrary, on a harmonious construction it would reveal that a more important role that is presiding over the meeting can be delegated by the Collector to any other officer. In that view of the matter, we are unable to accept the contention that the FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7790 OF 2011 "Shivaji Digambar Kapse Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 7 provision of sub-section (3) has to be construed in a manner that, it is only the collector and not any officer authorized by him who can convene a meeting. In the present case, the Collector has himself convened a meeting and authorized the Assistant Registrar Cooperative societies to inform accordingly to the concerned. In that view of the matter and particularly on harmonious construction of sub-section(3) with sub-section (4) of Section 23A, we are not inclined to accept the contention in that regard. . On facts also, it can be seen that the contention of the petitioner that the Collector had delegated the power to the Assistant Registrar Cooperative Societies to convene a meeting is not correct. From the affidavit in reply filed on behalf of the respondent Nos. 1 to 4, by the District Deputy Registrar Co- operative Societies, it can clearly be seen that after receipt of the requisition, the respondent No.2 Collector , by order dated 30.9.2011 convened a meeting for considering the no confidence motion on 8.10.2011 at 11.00 a.m. It is only the formal act of intimating the members about the convening of the meeting that is done by the Assistant Registrar, Cooperative Societies. It can thus be seen that, as a matter of fact, the meeting has been convened by the Collector and the only communication regarding FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7790 OF 2011 "Shivaji Digambar Kapse Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 8 venue, time and date of the meeting has been done by the respondent No.3. 10] In so far as the second submission regarding joint notice for no confidence is concerned, there is nothing which prevents a joint notice to be sent for moving a no confidence motion against the Chairman and Vice chairman. Reliance placed on the judgment of the learned Single Judge in the case of “Shivkant” in our view is totally misplaced. IN the said case, the notice was issued for no confidence only against Sarpanch, whereas, the motion was passed against, both, Sarpanch and Upa-sarpanch. Notice not being issued for moving no confidence against Upa Sarpanch, was considered to be a fundamental defect, which had vitiated the entire process. Such is not the case here. The notice was issued mentioning the names of the Chairman and Vice chairman. 11] In so far as the third ground is concerned, it can be seen that the objection regarding ballot paper not being in accordance with fair procedure has been raised after the meeting is over. A party having participated in the meeting and having lost, cannot be permitted to raise a ground after the no confidence motion is passed against him and after voting is over. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7790 OF 2011 "Shivaji Digambar Kapse Vs. The State of Maharashtra and others." Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 9 In that view of the matter, we are not inclined to accept the said contention as well. 12] Apart from that, the Apex Court, in the case of “K. Narasimhiah Vs. H.C. Singri Gowda “ reported in AIR 1966 SC 330, has clearly held that in the matter of no confidence motion, while considering the question, as to whether rules are mandatory or directory, it is necessary for a party to point out as to what prejudice has been caused to him. In the present case, the petitioner has participated in the meeting, took part in the voting and having lost by a majority of 13.: 5, raising a ground regarding ballot paper not being in consonance with fair procedure, would not be permissible. In that view of the matter, we are not inclined to accept the third submission as well. 13] In a democratic set up, it is the will of the majority that would prevail rather then some technical or hyper technical objection. In that view of the matter, we are not inclined to entertain the present petition. The same is therefore rejected. [M.T. JOSHI,J.] [B.R. GAVAI, J.] grt/-