-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.555 of 2008 Tipayya Mallappa Battalle ..Petitioner vs. 1. State of Maharashtra and others ..Respondents Shri P.S.Dani for petitioner. Shri R.M.Patne, A.G.P. for respondent nos.1 and 2 Shri V.M.Thorat for respondent no.3 CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 16th February, 2008 16th February, 2008 16th February, 2008 P.C. P.C. P.C. 1. This writ petition under Articles 226 and 227 of the Constitution of India is directed against the order dated 28th December, 2007 contained in the communication, copy of which is at Exh.E to the petition. 2. By this communication, the petitioner was informed by the Deputy Registrar, Cooperative Societies, Pune City (4), Pune that the term of Board of Directors/Committee Members of Neera Sahakari Society was for the periods 2004-2007 and the term ends on 18th December, 2007. However, Neera Sahakari Society has on 10th October, 2007 submitted a proposal before the -2- Deputy Registrar for amendment and modification to the byelaw No.G-1.13. The amendment is that "the Election to the Managing Committee would be held after every Five years." This amendment to the byelaw has been approved by the Deputy Registrar on 1st November, 2007. According to the Deputy Registrar, the first meeting after the elections came to be held on 28th December, 2004 and hence the term of the existing Managing Committee shall be ending on 28th December, 2009. The clarification is that since the amendment/modification to the byelaw has been made prior to three years the tenure of the existing Managing Committee automatically gets extended by five (5) years. 3. The petitioner is aggrieved by the fact that the amendment to the byelaw has been construed to mean that even the earlier elections would be governed thereby. Further, he is aggrieved by the fact that byelaw being amended in 2007, the approval thereto being granted in 2007, the same has been applied to the term/election of the Managing Committee for the period 2004-2007. In his submission, the same is clearly contrary to the byelaws so also the settled principles. -3- 4. Very few facts are necessary to appreciate this challenge. The petitioner is residing in village Mandre Budruk, Taluka Haveli, District Pune. Respondent No.3 before me is the Cooperative Society registered under the Maharashtra Cooperative Societies Act, 1960. Neera workers and traders are the members of the society. It is not a specified society nor a notified society, but it is a processing society. It is his case that the society is registered in the year 1953 and the byelaws thereof provide for the term of the Managing Committee. It has always been 3 years at the conclusion at which elections are held. The petitioner is the member of the society and he points out that at the General Body Meeting the amendment to the byelaws was proposed. Prior thereto, he states that the elections for term 2004-2007 were held and results thereof declared on 18th December, 2004. The term of 3 years thus expired on 17th December, 2007. Despite this, by virtue of the proposal for amending the byelaw mooted at the meeting and which proposal being carried so also being approved as stated in the impugned communication, no steps were taken for holding the elections. The term was about to conclude and, yet, there being no -4- programme of fresh elections, a complaint was made by the petitioner on 15th November, 2007 to the authorities, pointing out that the present Managing Committee may not take any measures to hold elections although obliged to do so and, therefore, the authorities must intervene and direct it accordingly. It appears that the said complaint was kept pending and unattended to. The petitioner, therefore, moved the Divisional Joint Registrar who by the direction, copy of which is enclosed to this petition as Exh.C (page 77) directed the Deputy Registrar to look into the complaint and take necessary action. The Deputy Registrar heard him and thereafter issued the impugned communication. 5. Shri Dani in support of this petition urged that the Deputy Registrar was in clear error in issuing the impugned clarification. He submits that under the garb of impugned communication what has been done is that the term of the existing committee has been extended although impermissible in law. He submits that there are two concepts, namely, Election and term pursuant thereto. He submits that in this case elections were held for the term 2004-2007. That elections held in 2004 clearly stipulated that -5- the Managing Committee’s tenure being 3 years, the elections are held to fill up the posts in that behalf. Be that as it may, during the tenure of the said Managing Committee, the General Body Resolved to amend the byelaws but these byelaws being amended and approved does not mean that they would apply to the tenure of the existing committee which gets determined by the earlier Elections and result thereof. In such circumstances, there is a clear error on the part of the Deputy Registrar in rejecting the complaint of the petitioner. He has by this rejection extended the term of the existing committee which was not permissible. 6. Shri Dani was at pains to point out that in this case reference to the earlier provision is necessary whereunder it was clearly provided that the elections to the Managing Committee would be held after three years. The amendment made is that such elections would now be held after every five years. The reason assigned is that the byelaws had to be brought in tune with section 73G of the Maharashtra Cooperative Societies Act, 1960 and that is how the amendment was effected. It is true that the amendment was accepted by the General Body and -6- thereafter forwarded for approval of the authorities, the approval is dated 1st November, 2007. However, what is approved is amendment to byelaws. There is no question of the order approving the same extending the term of the Managing Committee. That being not provided in the order of approval, the Deputy Registrar had no authority in law to issue the impugned communication. That apart, any such amendment, would be clearly prospective. He relies upon the following decisions in support of his submissions. i) The Cooperative Central Bank Ltd. and others Vs. The Additional Industrial Tribunal Andhra Pradesh and others (1969(2) Supreme Court Cases 43; and ii) Commissioner of Income Tax, U.P.II Lucknow Vs. Bazpur Cooperative Sugar Factory Ltd., Bazpur Dist. Nainital ((1988)3 Supreme Court Cases 553) 7. An affidavit in reply has been filed on behalf of the State by Mahadev Shrirang Jadhav, functioning as the Deputy Registrar. The -7- learned A.G.P. relies upon the annexures to this affidavit and submits that considering the Government circulars and policy of the State, the byelaws were approved in exercise of the powers conferred by section 13 of the Maharashtra Cooperative Societies Act, 1960. The byelaws were approved by the Deputy Registrar. The tenure of the Managing Committee is now of five years. In such circumstances, so also relying upon the policy, it is urged that the existing Managing Committee would also now be in office for five years i.e. upto 28th December, 2009. Hence, there is no error in the communication or clarification. 8. The petition is contested by Respondent no.3. Shri Thorat, learned Counsel appearing for respondent no.3, firstly, contended that the writ petition itself is not maintainable. His submission is that the petitioner has not exhausted the remedy available under the Maharashtra Cooperative Societies Act, 1960. He ought to have gone in appeal if he was aggrieved by the amendment being approved or even otherwise by the clarification for which another remedy under sec.154 of the Cooperative Societies Act was available. That apart, his -8- submission is that this writ petition is not maintainable before a learned single Judge. The learned Single Judge’s powers are subscribed by the Bombay High Court, Appellate Side Rules and more particularly Chapter XVII Rule 18. There being no order within the meaning of this Rule, the learned single Judge cannot decide this petition. Further, relying upon the policy directives and the fact of byelaws being approved during the tenure of the existing Managing Committee, according to Shri Thorat, the same would apply even for the present committee and the orders suffer from no infirmity much less one warranting interference in writ jurisdiction. The petition should, therefore, be dismissed. 9. For properly appreciating the rival contentions, a reference would usefully be made to the relevant statutory provisions. However, prior thereto, I would dispose of the preliminary objections. 10. In so far as the remedy available to the petitioner under the Act is concerned, the challenge is not to the byelaws or to the amendment and, therefore, alternate remedy could -9- not have been availed of. What is sought to be challenged is a direction issued by the Deputy Registrar during the course of taking cognisance of the complaint of the petitioner against the existing Managing Committee failing to fulfil its statutory obligations. The complaint was directed against the Managing Committee’s inaction to take steps and start the electoral process after its term came to an end, according to the petitioner. That complaint has not been addressed and disposed of but rather rejected by the impugned clarification. In my view, it may be true that there is a remedy available to the petitioner under section 154 of the Act and he could have gone either to the Registrar or the Joint Registrar or to the State Government but the question raised is regarding the legality and validity of the stand of the Government in the clarification. In the peculiar facts of this case, I do not see any purpose in relegating the petitioner to that remedy. Even otherwise it is well settled that existence of an alternate remedy is not an absolute bar to entertaining of a writ petition. 11. In so far as the objection that the learned Single Judge would have no jurisdiction, this is -10- not a case where the controversy is as to whether the impugned direction is an order or direction under the Maharashtra Cooperative Societies Act, 1960 and the learned Single Judge could set aside the same. Upon perusal of the subject rule, it is apparent to me that the order is traceable to the powers of the Deputy Registrar as delegate of the Registrar under the Act and, therefore, is order under the Act. In the instant case, the Joint Registrar directed the Deputy Registrar to look into the petitioner’s complaint dated 15th November, 2007 and pass appropriate order and direction. The petitioner was called upon to remain present before the Deputy Registrar and make his submissions. Thus, the impugned communication is an order. Assuming it is not to be so, still, the clarification is communication of the authority which has effect of an order and direction. It is not as if the learned single Judge is debarred from deciding such a controversy. Therefore, to my mind, upholding the submission with regard to the jurisdiction of the learned single Judge would be contrary to the letter and spirit of the subject Appellate Side Rules. Even that objection is, therefore, overruled. -11- 12. As far as the clarification is concerned, the Deputy Registrar had before him the complaint dated 15th November, 2007. Perusal of the complaint would show that what the petitioner was all through out emphasising is that elections were held in 2004 to fill up the vacancies which arose in the office of the Managing Committee. That election was held in 2004. The term was 3 years. The election was held to fill up the Managing Committee posts for that term. Now, when the term is about to end, then, the existing Managing Committee should have taken steps to hold elections in accordance with the Act. However, the election programme has not been announced. This has caused great injustice to the Members. The existing Managing Committee has been resorting to all sorts of tactics which are not in the interest of the society. Therefore, directions be issued to the Managing Committee to initiate election process. 13. There is no reference therein to any byelaws being amended or amended byelaws being applicable or not. While taking cognisance of such a complaint the Deputy Registrar placed reliance upon the communication dated 1st -12- November, 2007 approving the byelaws and in his opinion, the byelaws having been approved, the term of the existing Managing Committee gets extended automatically as per the amended byelaws for 5 years. There is nothing in the letter dated 15th November, 2007 (Exh.D page 89) communicating the approval of Byelaws which would indicte that the amendment to byelaw No.G.1.3 would have retrospective effect or would apply to the term of existing Managing Committee. The Deputy Registrar in the impugned order does not refer to any other provision in the Act or Rules which would enable him to hold that the amended provision/byelaw is retrospective. It is well settled that a right to elect and get elected is not a fundamental right. Hence, under the garb of clarifying the position, the Deputy Registrar has extended the term of the existing Managing Committee, which he was not empowered to do. Admittedly, Sec.73G is inapplicable to the respondent no.3 Society. On the other hand, Section 73H of the Maharashtra Cooperative Societies Act is clear. It applies to all societies. In the teeth of such a provision, the clarification issued under the impugned order is patently unsustainable. -13- 14. Admittedly, there is no provision in the Act and Rules justifying issuance of such a communication. Reliance is placed upon some policy directives. The policy directives which are referred to in the affidavit and copies of which are annexed as Exhibit I colly. to the same apply to Ginning and processing cooperative societies, consumer societies and cooperative credit society. They also apply to the Primary Agricultural Cooperative Society. The circulars by themselves do not say anything but what they intend to convey is that the Government has issued directions under section 79A and those directions extend the term of the existing Managing Committee. It is not the case of the learned A.G.P. that a Ginning and Processing Society and a Cooperative Processing Society like the respondent no.3 are the same, however, by analogy, according to him, the circulars would apply. Admittedly, there is no direction or order under sec.79A in the case of the respondent no.3 society. Therefore, there is no question of the term being extended in the light of any circular, which is inapplicable or policy which also is not in force qua the Cooperative Society in question i.e. respondent no.3. The affidavit which has been filed by respondent -14- no.2 does not in any manner say that the byelaw in question would apply to the term of the existing Managing Committee. If byelaw itself were to apply retrospectively and cover the term of the existing committee, then, the Deputy Registrar while approving them would have said so. Once, having not said so but support being derived from the circular which is clearly inapplicable, then, to my mind, the impugned clarification/communication cannot be sustained. That has been referred to by me in detail. 15. A copy of the said communication is annexed at Exh.E to the writ petition. It is clear to me that what has been stated in the communication and version before me on affidavit is not the same. The communication purported to convey that the byelaw being amended during the tenure of the existing Managing Committee, the same would apply and the term gets extended by five years. However, neither the communication nor the order approving the byelaw dated 1st November, 2007 says so or the byelaw itself. There is no justification for the conclusion that the byelaw being amended during the tenure of the existing Managing Committee, the same would govern it and the Managing Committee -15- presently managing the affairs can continue in all these five years. Once the impugned communication states nothing about the amendment being retrospective, then, it is clear that the term of the existing Managing Committee cannot be extended by resort thereto. Further by this reasoning section 73H would be violated or not is a larger question. 16. That apart, nothing has been pointed out by Shri Patne to me in law which would enable the Deputy Registrar to hold that byelaws being amended and such amendment being adopted during the tenure of the existing Managing Committee, its term automatically gets extended in terms of the amendment. Shri Patne was unable to point out to me anything either in the Act or in the byelaws themselves which would support this conclusion. Admittedly, the Managing Committee does not amend the byelaws. The proposed amendment is placed before the General Body meeting and the General Body passed the amendment. Further, in terms of section 13 there is no question of the amendment becoming effective straightway or else the provision requiring its approval by the Registrar would be wholly redundant and nugatory. That apart, -16- section 13 has to be read with Rule 12 and read together there is a mandate emerging from the same whereunder the Registrar has to be satisfied that the byelaws are in the interest of the society and not being contrary to the Act or Rules, they need to be approved. Thus, how the General Body amending the Byelaw in question and Registrar approving the same enures to the benefit of the Existing Managing Committee is not clear to me at all. The Managing Committee holds the office pursuant to a Election. The byelaws then existing provided for election for a fixed term. When the elections were held they were held for the term 2004-2007. That term is admittedly over. How the elections which were held earlier for this term and the people assuming office on that basis continue thereafter is not clear to me at all in the facts of this case. Any larger question or controversy need not be addressed in as much as the learned A.G.P. was unable to support the impugned communication/order in law. It is, therefore, that he places reliances upon the policy decisions/circulars which upon their plain reading do not apply to the Respondent No.3 society. -17- 17. For all these reasons, the impugned order/communication cannot be sustained. It is accordingly quashed and set aside. Rule is made absolute in terms of prayer clauses (a) and (b).No costs. All concerned now shall take steps to hold election and needless to state that the election which may be held can provide in the programme that the tenure of the Managing Committee shall be for five years. This election programme which would now be published, needless to state that will be governed by the amended byelaws and merely because the impugned communication has been quashed and set aside does not mean that the amended byelaws cannot be given effect to. 18. At this stage Shri Thorat, learned counsel appearing for respondent no.3 prays for stay of this order in order to enable respondent no.3 to file L.P.A. or move the higher Court. All that I have done is to quash and set aside the order and direction of the Deputy Registrar dated 28th December, 2007. Merely because the communication/direction is quashed and set aside does not mean that the existing Managing Committee ceased to exist straightway. It would have to take steps to hold fresh election in -18- accordance with law. In any event the Deputy Registrar’s order allowed it to continue and that order is set aside. The Registrar has now to ensure compliance with law. That would take some time. Therefore, the question of staying this order does not arise. Stay refused. 19. All concerned to act on authenticated copy of this order. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)