HINDURAO BALWANT PATIL Vs. KRISHNARAO PARSHURAM PATIL

JUDGEMENT

(1.) As, in both these petitions, common questions of law and fact are involved, they were heard together and are being disposed of by this common judgment. Shri Dudhganga Vedganga Sahakari Sakhar Karkhana Limited (hereinafter referred to as the Society) is a registered co-operative society registered under the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the Act). In the Year 1973 the said Society was declared as the specified society under section 73-G of the Act. On 5-11-1976 the bye-laws of the Society were amended.

(2.) In April 1979 the present Board of Directors was elected and petitioners Nos. 1 and 2 in Writ Petition No. 1791 of 1981, i.e. Hindurao and Shankarrao, was elected as Chairman and Vice Chairman respectively. These elections were held as per the procedure prescribed under Chapter XI-A of the Act. On 19th of May, 1981 a notice was issued by the Managing Director of the Society to convene a meeting of the Board of Directors on 27th of May, 1981 for passing a vote of no-confidence against the Chairman and Vice Chairman. It appears from the record that on 21st of May, 1981 petitioner Shankarrao filed a dispute under section 91 of the Act with the Regional Deputy Director of Sugar Kolhapur, challenging the notice, dated 19-5-1981 issued for convening the meeting for passing a vote of no-confidence. In the said dispute the authority concerned did not pass any interim orders. Hence on 27th of May, 1981 a resolution expressing a vote of no-confidence was passed by the majority of the members of the Board against the Chairman as well as the Vice Chairman. On 28th of May, 1981 the petitioners moved the Regional Deputy Director of Sugar for interim relief. But the said application was rejected and, thereafter the dispute itself was withdrawn as it had become infractous. Thereafter a notice was issued by the Managing Director of the Society for convening a meeting on 6th of June, 1981. Petitioner No. 2 Shankarrao, filed a second dispute with the Regional Director of Sugar, Pune, obviously under section 91 of the Act praying inter alia for an order of prohibition restraining the Board of Directors from electing a new Chairman and Vice Chairman. The said dispute was referred to the Co-Operative Court No. 2, by the Director of Sugar vide order dated 3rd of June, 1981. On 4th of June, 1981 an ad interim injunction was granted by the Co-operative Court and it further directed that a notice should be issued to the opponents who had filed caveat, returnable on 5th of June, 1981. Thereafter the case was adjourned for 6th of June, 1981. In the meantime petitioner, Shankarrao approached the Co-operative Appellate Court and obtained an ex parte injunction restraining the respondents from holding the meeting. In view of this appellate order, earlier order passed by the Co-operative Court refusing the injunction was kept in suspension. Thereafter the respondents filed a writ petition before this Court bearing Writ Petition No. 1574 of 1981 and obtained an ex parte stay order on 8th of June, 1981. On 12th of June, 1981 petitioner Shankarrao applied for vacating the interim relief. On the statement made by the learned Counsel for the other side that the elections of the Chairman and the Vice Chairman will not be held, till 16th June, the matter was adjourned. Ultimately when the matter came up before us on 17th June, 1981 we admitted the petition and issued rule returnable on 3-7-1981. During the course of the hearing at the admission stage itself both the parties have put in writing the question of law, which is involved in this petition, namely :

(3.) The parties also agreed that during the pendency of this petition fresh elections will not be held. Therefore, the only question which requires consideration in these writ petitions is to find out whether in the absence of any provision in the Act, Rules or the Bye-laws of the co-operative society, the Managing Committee can pass a resolution of no confidence against the Chairman or Vice Chairman. This is the only question which is argued before us. It is not disputed before us that so far as the present society is concerned, there is no provision even in the bye-laws which confers a right upon the members of the Managing Committee to pass a no confidence motion against the Chairman and the Vice Chairman. Dr. Naik, learned Counsel appearing for the Chairman and the Vice Chairman has contended before us that the Managing Committee is to be elected under section 73-G of the Act and under sub-section (2) of the said section, the members of the Managing Committee have a right to held the office for a period of five years from the date on which the first meeting is held. The term of the Chairman and the Vice Chairman is co-extensive with the term of the members of the committee. Since in this case the elections to the Managing Committee were held in the year 1976, in the absence of any provision to the contrary, the petitioners viz. Chairman and the Vice Chairman of the society have a right to continue in office till expiry of the said term of five years. According to Dr. Naik, the bye-laws of the society provide for Constitution of the Managing Committee, including as to how the election of the Chairman and the Vice Chairman is to be held. Though in the model bye-laws framed by the Co-operative Department, a provision is made for passing a vote of no confidence against the Chairman and the Vice Chairman under bye-law No. 34 (d), the said bye-law was not approved by the registrar of the Co-operative Societies as far as the present society is concerned. Therefore, apart from the fact that there is no provision in the bye-laws or the Act or the Rules to enable the members of the board to pass a resolution of no confidence against the Chairman or Vice Chairman in fact as far as the present society is concerned, though the society initially had framed such a bye-law and had submitted it to the Registrar under section 12 of the Act, the said amendment was not approved by the Registrar. The order passed by the Registrar rejecting the said part of the bye-law is final as the said order was not challenged by any member of the society. Shri Naik further contended that in view of the provisions of section 73 of the Act, the bye-laws framed by the society in this behalf have the force of law or in any case are binding upon its members. Therefore, the said bye-laws are also binding upon the respondents. As in the bye-laws no provision is made for passing a resolution of no confidence against the Chairman and the Vice chairman the resolution passed on 27th of May, 1981 is illegal and ultra vires of the powers of the members of the Board and therefore, cannot result in removal of the Chairman or Vice Chairman. As the said resolution passed in the meeting dated 27th May, 1981 is ab inito void there is no vacancy so far as the offices of the Chairman and the Vice-chairman are concerned, which would be filled in by holding fresh election. In support of his contention, Shri Naik has relied upon the decisions of various High Courts, in (lambha Mandali v. Distt. Registrar) 14 Gujarat Law Reporter 786, (Kanti Devi and another v. State of Rajasthan) A.I.R. 1957 Rajasthan 134, (Jahagir Bhikaij v. Corporation of City) 1960 Nagpur Law Journal 99. In substance it is the contention of Shri. Naik that in the absence of such a specific provision the members of the Board of Directors have no inherent or implied powers to remove the Chairman and the Vice Chairman by passing a resolution of vote of no-confidence.