Judgment:
H.W. Dhabe, J.
1. This is a writ petition arising out of the dispute proceedings under section 91 of the Maharashtra Co-operative Societies Act, 1960 (for short 'Act').
2. Briefly, the facts are that the petitioners 1 to 9 were duly elected as office bearers of the managing committee of the respondent No. 3 Society during the period when the Administrator appointed under the Act was in-charge of the affairs of the society. They were declared elected on the same date i.e. 24-6-1984 by the Returning Officer appointed by the Administrator for conducting the election. They were also handed over charge of the society by the Administrator on the same day i.e. 24-6-1984. The respondents 1 and 2 who contested the aforesaid elections but failed filed a dispute under section 91 of the Act on 20-8-1984. The only challenge to the elections of the petitioners 1 to 9 was in respect of their declaration as the elected candidates. According to the respondents 1 and 2, the declaration of the results could be only in the General Body Meeting of the society as provided in Rule 60(7) of the Maharashtra Co-operative Societies Rules, 1961 (for short 'Rules'). The Co-operative Court before whom the dispute was tried upheld the contentions of the respondents 1 and 2. He, however, declined to grant relief to the respondents 1 and 2 on the ground that the petitioners 1 to 9 had already taken the charge from the Administrator, who had, therefore, become functus officio and there was no power to him to direct the petitioners 1 to 9 now to hand over back the charge to the Administrator. He further held that the respondents 1 and 2 allowed the irregularities to continue till the declaration of the election results and, therefore, they cannot take advantage of the said irregularities.
3. Being aggrieved, the respondents 1 and 2 filed an appeal before the Maharashtra State Co-operative Appellate Court, Bombay, which set aside the order of the learned Co-operative Court and declared that the petitioners 1 to 9 were not legally declared as elected members of the Managing Committee of the society. It further directed that the District Deputy Registrar should ask the Administrator of the society to take charge of the affairs of the society from the petitioners 1 to 9 and the said Administrator thereafter should call the General Body Meeting of the society for declaration of the election results. The petitioners 1 to 9 have, have therefore, the challenged the above order of the learned Appellate Court in the instant writ petition.
4. A short question which arises for consideration in the instant writ petition is about the construction and the effect of Rule 60(7) of the Rules. Before referring to the provisions of Rule 60 of the Rules, I may refer to the bye-laws of the respondent No. 3 society which govern the election of the office bearers of its Managing Committee. Bye-law No. G-2.12 provides that the election of the Managing Committee shall be in accordance with the election regulations contained in Appendix VI unless modified by the Managing Committee with the approval of the registering authority under the law. A perusal of Appendix VI would show that under Regulation 1 all ordinary members of the society as at the end of the co-operative year, who are not disqualified to vote according to the provisions of the Act. Rules and bye-laws, would be eligible to vote and/or stand for election to the Managing Committee. Regulation 2 casts an obligation upon the Managing Committee to prepare the list of voters as on the last date of the co-operative year for an election to the Managing Committee for a period of three years and publish the same on its Notice Board on or before 14th July each year. It also provides that any member affected by the voters' list can take suitable objection.
5. Regulation 3 of the Election Regulations provides that the Managing Committee shall appoint a Returning Officer for holding the election of the Managing Committee. It also empower the Returning Officer to fix the election programme, which includes the stage of filing of the nomination papers and also the last stage of declaration of election results. It is material to see in this regulation that the counting of votes and the declaration of results has to be done immediately after the poll is over. Resolution 4 provides that voting has to take place on the date and the hours fixed by the Returning Officer and it has to be by secret ballot. Regulation 6, which is material for our purpose in the instant writ petition, provides that after the counting of votes is over, the Returning Officer shall declare the result of the candidate who gets largest number of valid votes in the election. Regulation 7 may also be noticed which is applicable in the case of a society which is managed by the Administrator. The said Regulation shows that the Administrator has also to follow the same procedure as laid down in this Appendix VI for electing the Managing Committee of the society. It is not in dispute that the election in the instant case is held by the Administrator in accordance with the provisions of the aforesaid bye-laws which are applicable to the respondent No. 3 society.
6. I may now turn to Rule 60 of the Rules framed under the Act. Rule 60 is a general rule dealing with the procedure to be followed in the general meetings of the society to transact the business before it. Sub-rules (4), (5), (6) and (7) deal with the manner of voting at the meeting of the General Body. Sub-rule (4) states that when the members are divided on any resolution, any member may demand a poll and when a poll is demanded, the President shall put the resolution to vote. Sub-rule (5) then provides that voting may be by show of hands or by ballot as may be decided by the members present in the meeting unless otherwise specified in the bye-laws. However, notwithstanding anything contained in the bye-laws, voting in the election of office bearers of a society having members' share capital in excess of Rs. 10,000/- including Government share capital, if any, has to be by ballot. Sub-rule (6) provides that when voting is by ballot, the President should take necessary steps for the issue of ballot papers and counting of votes. Sub-rule (7) which is relied upon by the Courts below provides that the result of voting shall be announced by the President.
7. It is clear from the aforesaid sub-rules of Rule 60 that Rule 60 provides for a general procedure for transacting any business in the General Meeting of the society. If, therefore, as per its agenda the election is held of the office bearers of the Managing Committee of any society in its general meeting the procedure laid down in Rule 60 would be applicable to such election. However, as in the instant case, when the election is not held in the general meeting of the Society but is held in accordance with the bye-laws sanctioned under the Act, the question is whether the provision of sub-rule (7) of Rule 60 would still apply merely for declaration of the election results. There is no provision either under the Act or under the Rules that the election of the office bearers of the managing committee of the society must be held in its general meeting. If there is no such provision, it is open to any society to adopt a suitable procedure for election of the office bearers of its managing committee. Accordingly, such a procedure is laid down by the respondent No. 3 society in its bye-laws and the regulations which are duly sanctioned under the Act.
8. The learned Counsel for the contesting respondents has relied upon section 75 of the Act, which deals with the Annual General Meeting of the society, in support of his contention that Rule 60(7) must be complied with for declaration of election results. A perusal of section 75 of the Act would show that it is obligatory thereunder to place the statement of accounts every year before the Annual General Meeting of the society which has to be held within a period of three months next after the date fixed for making up of the accounts for the year. Section 75 does not provide that the elections to the managing committee must be held in the Annual General Meeting of the society. It is not, therefore, of any assistance to the contesting respondents to support their contention that the election results must be declared in the General Meeting of the society as per Rule 60(7).
9. If there is no specific provision in the Act and the Rules framed thereunder that the election of the members of the managing committee of the society must be held in the General Meeting of the society and if it is open to the society to adopt a suitable procedure for electing the members of the managing committee, in my view the special provisions enacted in the bye-laws of the Society for the purpose of holding elections and for declaration of its result would prevail over the general provisions in Rule 60 which are applicable for transacting the business before the General Body of the society. When the election Regulation No. 6 in the instant case specifically provides that the results of the election should be declared by the Returning Officer, in my view, the general provision in sub-rule (7) of Rule 60 would not be applicable in the instant case.
10. It must be seen that election regulations framed under Bye-Law No. G. 2.12 of the society provides a complete Code for selecting the office bearers of its managing committee. Regulation 3 in particular, requires that the counting of votes and the declaration of results has to be undertaken immediately after the poll is over. It is, therefore, obligatory upon the Returning Officer to declare the election results immediately after the counting of votes. This view taken by the learned Courts below in this regard which does not take into consideration the effect of the bye laws in this regard is, therefore, clearly erroneous. The previous decision of the Appellate Tribunal relied upon by the Appellate Court does not take into consideration the effect of the bye-laws, if any, which govern the elections of the members of the managing committee of the society. The said decision is, therefore, not in point in the facts and circumstances of the instant case.
11. In this view of the matter, since Rule 60(7) is not attracted in the instant case, the declaration of the result by the Returning Officer as per election Regulation No. 6 of the respondent No. 3---society was legal and proper. The petitioners 1 to 9 were, therefore, duly declared as elected members of the managing committee of the respondent No. 3-society.
12. It is however, urged on behalf of the contesting respondents that Regulation 7 required the Administrator to declare the results of the election. In my view, the above submission is not correct. What Regulation 7 provides is that if the society is superseded, then the Administrator should follow the same procedure provided under the regulations for electing the members of the managing committee of the society. It is by following the procedure of the regulations contained in Appendix VI that the Administrator has performed his duty of electing the members of the managing committee of the society in the instant case. The above contention also, therefore, deserves to be rejected.
13. In the result, the instant writ petition is allowed. The impugned order of the learned Appellate Court is set aside. However, in the circumstances, there would be no order as to costs in this writ petition.