ORDER
C.K. Thakker, C.J.
1. Rule. In writ Petition No. 1102 of 2004, Mr. V.P. Malvankar, Learned Assistant Government Pleader, on behalf of respondent Nos. 1 & 2, and Dr. V.K. Chowdhari, learned counsel on behalf of respondent No. 3, appear and waive service of notice of Rule. In Writ Petition No. 1179 of 2004, Dr. V.K. Chowdhari, learned counsel, on behalf of respondent No. 1, and Mr. R.M. Patne, learned/Assistant Government Pleader, on behalf of respondent Nos. 2 & 4 to 6, appear and waive service of notice of Rule. In Writ Petition No. 9640. of 2003, Mr. P.M. Patil, learned Assistant Government Pleader, on behalf of respondent Nos. 1 to 3, and Dr. V.K. Chowdhary, learned counsel, on behalf of respondent No. 4, appear and waive service of notice of Rule.
2. In the facts and circumstances, the matters are taken up for final hearing today.
3. In all these petitions, common questions of fact and law have been raised, and they can, therefore, conveniently be dealt with and decided by a common judgment.
4. To appreciate the controversy raised in the present petitions, relevant facts from the first petition (Writ Petition No. 1102 of 2004) May be stated:
5. The petitioner is a Society of respondent No. 3, Pune Zilla Sahakari Dudh Utpadak Sangh. It is controlled by Board of Directors consisting of seventeen members of which eleven are elected, and rest are either ex-officio or nominated members. The tenure of the Board of Directors is of five years. It is the case of the petitioner that the elections were held in September, 1998. Admittedly, it was for five years. In accordance with the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as 'the Act'), the term of Board of Directors had come to an end on September 30, 2003. It was, therefore, necessary to hold elections of the Board of Directors in accordance with law.
6. Our attention has been invited by the learned counsel for the parties to the relevant provisions of law under which elections are required to be held in such cases. Two provisions are relevant and material, and may be considered.
7. Sub-section (1) of Section 73-G of the Act lays down procedure for conduct of elections to committees and of officers of certain societies and term of office of members of such committees. Sub-section (2) state that when the election of all members of the committee of any such society referred to in Sub-section (1) is held at the same time, the members elected on the committee at such general election shall hold office 'for a period of five years from the date on which the first meeting is held', unless the period is extended by the State Government, for reasons to be recorded in writing, for a period not exceeding one year so, however, that the total period does not exceed six years in the aggregate.
8. Section 73IB confers power on the State Government to postpone elections in certain cases. The said section is relevant and may be reproduced for ready reference;
'Powers of State Government to postpone election.--- Where due to scarcity, drought, flood, fire, or any other natural calamity or rainy season or any election programme, of the State Legislative Assembly or Council or the House of the People or a local authority, coinciding with the election programme of any society or class of societies or such other reasons as, in the opinion of the State Government, are exceptional, it is not in the public interest to hold elections to any society or class of societies, the State Government may, notwithstanding anything contained in this Act, or in any rules, or bye-laws made thereunder, or any other law for the time being in force, for reasons to be recorded in writing, by general or special order, postpone the election of any society or class of societies, for a period not exceeding six months, at a time which period may further be extended so, however, that the total period shall not exceed one year in the aggregate.'
9. The above provision deals with the cases of exceptional nature. It states that if the Government is satisfied that election is required to be postponed, such an action can be taken. The power, however, has to be exercised keeping in view the circumstances and contingencies mentioned therein. It is also clear that the power can be exercised on relevant considerations such as scarcity, drought, flood, fire or any other natural calamity or rainy season or election programme, referred to therein, or for such other reasons, as, in the opinion of the State Government, are exceptional and it is not in the public interest to hold election to any of the societies or class of societies. Moreover, reasons have to be recorded in writing by the State Government. Further, such an action can be taken at a time for a period not exceeding six months and the total period cannot exceed one year in the aggregate.
10. Now, in the exercise of the power under Section 73IB, a Notification came to be issued by the State Government on June 26, 2003. In the said Notification, it was stated that the elections of all Co-operative Societies were postponed with effect from the date of the order, i.e., June 26, 2003, till September 30, 2003 and/or further orders of the Government, whichever would occur earlier. It may be stated that the said period came to an end on September 30, 2003.
11. Again, on December 15, 2003, a Notification under Section 73IB was issued by the State Government. It is stated in the Notification that due to Annewari below 50 paise in most of the villages of 71 Talukas out of 11 Districts, which have been mentioned in the Notification, there was 'scarcity'. It was stated that due to such situation, the Government was satisfied that it would not be appropriate and in the public interest to hold elections of the Co-operative Societies in eleven districts.
12. The Notification then proceeds to state;
'AND therefore, in exercise of powers vested in the Govt. of Maharashtra as per Section 73IB of Maharashtra Co-op. Societies Act, 1960, the Maharashtra Govt. hereby makes an order that the elections of all Co-op. Societies, located in the abovementioned 11 Districts are hereby postponed for a period of one year with effect from the date of this order, except the elections of the Co-op. Societies where the stage of nominations has begun and where the Hon'ble Supreme Court, High Court and the Co-op. Court have already passed specific orders for holding of elections and except all Co-op. Housing Societies. In case the election process of the Co-op. Societies has been started, however, till the date of this order, the stage of nomination has not begun, the election process of such societies should be restored from the stage at which it is stopped, after the lapse of the postponement period.'
13. It is, thus, clear that at a time an order has been passed postponing election for a period of one year with effect from the date of the Notification, i.e., December 15, 2003. The said action is challenged as illegal and contrary to law.
14. It is also contended that by a letter dated January 19, 2004 (Exhibit `K'), the Deputy Secretary, Animal Husbandry, Dairy Development and Fishery Sections, informed the Collector of Pune to hold election of the Pune District Milk Producers Sangh, Katraj. In the said letter, it was stated that he had been ordered to issue directions to Collector, Pune, as the Hon'ble the Chief Minister had given directions for holding election immediately of the Pune District Milk Producers Sangh, Katraj, Pune. The Collector was asked to take immediate action for executing the directions.
15. The contention of the petitioner is that the power was required to be exercised by the Competent Authority in accordance with law and such power cannot be exercised by the Competent Authority at the instance or dictation of other authorities or under the order of higher officer. Since the action has been taken at the dictation of the higher authority (Hon'ble the Chief Minister), on an additional ground, the letter / order, dated January 19, 2004 deserves to be quashed and set aside.
16. An affidavit-in-reply is filed by the Deputy District Election Officer, Pune, on February 4, 2004.
17. In paragraph 3, it was stated that it was true that respondent No. 2, Collector, Pune, vide his letter dated May 27, 2003, directed respondent No. 3-Society to prepare a provisional list of voters and to send the same through the Assistant Registrar, Co-operative Societies (Dudh), Pune, to respondent No. 2's office. It was also stated that accordingly, the said voters' list was received by the Office of the Collector, Pune, on October 3, 2003 from the Deputy Registrar, Co-operative Societies, Pune. It as then stated that respondent No. 2, Collector, Pune, on October 3, 2003, after receiving the voters' list, considered the question of holding election, but in view of Notification dated June 26, 2003, the election was postponed.
18. In paragraph 5, it was stated that due to objections by several members, the opinion of the Deputy Registrar of Co-operative Societies, Pune, could not be received, and final publication of voters' list was postponed from November 11, to December 3, 2003. The final voters' list was ultimately published on December 3, 2003.
19. Dealing with the objection of postponing election, in the affidavit-in-reply, the deponent stated;
'I further submit that the Election Commissioner of India is likely to declare the mid-term Elections for the Lok Sabha and as such, keeping in view the Lok Sabha election programme, the election programme for the Respondent No. 3 Society will be declared as early as possible and accordance with the law.'
20. The question for our consideration, therefore, is whether the issuance of Notification dated December 15, 2003 postponing election for one year is or is not in accordance with law.
21. Now, apart from the fact that it is not in consonance with the provisions of Section 73IB of the Act, inasmuch as at a time, a Notification has been issued postponing election for a period of one year, in the affidavit-in-reply, an additional factor has been taken into account of declaration of mid-term election by the Election Commissioner of India. Again, it is not applied to all societies. As stated hereinabove, the letter at Exhibit `K' dated January 19, 2004 states that election of Pune District Milk Producers Sangh is ordered to be held.
22. In our opinion, no decision postponing election for a period of one year at a time can be taken under Section 73IB of the Act. It ought to have been initially for a period of six months for one or more of the eventualities specified in the said section. It must be for a period of one year in the aggregate. In the instant case, that period of one year would also exceed, inasmuch as maximum period of six years would be over on September 30, 2004, whereas the election is ordered to be postponed up to December 15, 2004. Election of third respondent-Sangh, therefore, must be held in accordance with law.
23. So far as letter dated January 19, 2004 is concerned, it is objectionable on an additional ground also. It is clear from the letter that the Deputy Secretary, Animal Husbandry, Dairy Development and Fishery Sections, has not exercised power in accordance with the provisions of Section 73IB of the Act. He has merely ordered holding of election, and has given direction to the Collector, Pune, to take immediate action in view of the directions issued by the Hon'ble the Chief Minister, which is specifically referred to in the said letter. In our opinion, such a direction could not have been issued by the Deputy Secretary at the dictate of superior authority.
24. A similar question came up for consideration before the Supreme Court in Commissioner of Police, Bombay v. Gordhandas Bhanji, : [1952]1SCR135 . In that case, a licence was granted in favour of A in accordance with law. The said licence, however, came to be cancelled at the instance of the direction issued by higher authority. Dealing with the question, and setting aside the order, the Court held that when a power is conferred on an authority, it can be exercised by that authority alone, and he cannot exercise such power at the direction of superior authority. Such an action cannot be said to be the action taken by that authority, and must be held to be bad and illegal.
25. The principal in Gordandas Bhanji was reiterated, and quoted with approval, in Purtabpur Company Ltd. v. Cane Commissioner of Bihar and Ors., : [1969]2SCR807 . In Purtabpur Company Ltd., an order was passed by the Cane Commissioner altering order of reservation of villages from the operation of the Sugar Cane Control Order at the dictation of the Chief Minister.
26. Setting aside the order, the Apex Court said;
'We have earlier seen that the view that the reservation made in favour of the appellant should not be disturbed but the Chief Minister did not agree with that view. It is clear from the documents before us that the Chief Minister directed the Cane Commissioner to divide the reserved area into two portions and allot one portion to the 5th respondent. In pursuance of that direction the Cane Commissioner prepared two lists `Ka' and `Kha'. Under the orders of the Chief Minister, the villages contained in list `Ka' were allotted to the appellant and in list `Kha' to the 5th respondent. The Cane Commissioner merely carried out the orders of the Chief Minister. It is true that the impugned orders were issued in the name of the Cane Commissioner. He merely obeyed the direction issued to him by the Chief Minister. We are unable to agree with the contention of Shri Chagla that though the Cane Commissioner was initially of the view that the reservation made in favour of the appellant should not be disturbed, he changed his opinion after discussion with the Chief Minister. From the material before us, the only conclusion possible is that the Chief Minister imposed his opinion on the Cane Commissioner. The power exercisable by the Cane Commissioner under Clause 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of anyone - not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this case what has happened is that the power of the Cane Commissioner has been exercised by the Chief Minister, an authority not recognised by Clause (6) read with Clause (11) but the responsibility for making those orders was asked to be taken by the Can Commissioner.'
27. Thus, the action of Deputy Secretary also cannot be held legal or valid.
28. For the foregoing reasons, in our opinion, all the petitions deserve to be allowed, and are accordingly allowed. The Notification dated December 15, 2003 is held illegal and unlawful. Likewise, the communication / letter dated January 19, 2004 is also declared illegal and unlawful. The State Government is hereby directed to take appropriate action in accordance with law for holding election of Pune zilla Sahakari Dudh Utpadak Sangh. There shall, however, be no order as to costs.
29. Parties be given copies of this order, duly authenticated by the Sheristedar / Private Secretary.