ORDER
1. This petition raises a question whether a woman from the non-borrowers category can contest a seat reserved
for woman in the elections to the Managing Committee of a Co-operative Society. Elections to Shivana Vishal Vividh Karyakari Seva Sahakari Sanstha Maryadit, Shivana (Taluka : Sillod, District : Aurangabad), a Co-operative Society governed by the Maharashtra Co-operative Societies Act 1960 are in process. The Managing Committee of this Society consists of 13 members. Out of which, one seat is reserved for economically backward classes, one for Scheduled Caste and Scheduled Tribes and one for non-borrowing members. Two seats are also reserved for women. Petitioner, Mrs. Tarabai Bhimrao Kale, who is a non-borrowing member of the said Society, filed her nomination for one of the seats reserved for woman and her nomination paper came to be rejected by the Returning Officer on the ground that a non-borrowing member can contest only the seat reserved for non-borrowing members and in no other constituency such a member can contest the election. Rejection of the nomination paper was challenged by the petitioner before the Assistant Registrar, Co-operative Societies, Sillod, by filing an appeal under Section 152A of the Maharashtra Co-operative Societies Act, 1960. The Assistant Registrar was pleased to dismiss the appeal holding that the non-borrowing woman member is not qualified to contest the election from the constituency reserved for women. This order dated 1st February 1993 has been challenged in this writ petiton.
2. Shri V. J. Dixit, learned counsel for petitioner, submitted that section 73BBB(3) of the Maharashtra Co-operative Societies Act 1960 gives right to all individual women members of the society to contest the election to a seat reserved for woman and does not restrict this right to borrower women members only. Shri P. F. Patni, learned counsel appearing for respondent No. 1; and Shri S. V. Gangapurwala, learned counsel appearing for respondents 5 and 6, replying the above contention, submitted that the provisions of section 73BBB will have to be read along with section 73-C(3). Sub-section (3) of section 73-C lays down a restriction that in an Agricultural Credit Society, there shall not be more than one representative of the non-
borrowing members. This mandate is in the interest of the borrower members for whose benefit the Society is established. Section 73-C restricts the representation of some classes which in the opinion of the legislature do not deserve more than the specified representation. Therefore, the right given by sub-section (3) of section 73BBB is qualified by the provisions of sub-section (3) of section 73-C and non-borrower members do not have a right to contest the seat reserved for women. They also relied on the bye-law number 38(A) of the bye-laws of this Society. The relevant provision of the bye-law is quoted below:–
^^lferh 13 rsjk lnL;kph
jkghy] rs lnL; xqIr ernku i/nrhus fuoMhysys vlrhy] laLFksP;k iapdesVh o nqcZy ?kVd]
ekxkloxhZ; o foxj dtZnkjkpk izR;sdh 1 ,d lnL; jkfgy] iapdesVhpk dkyko/kh 5
o”kkZi;Zr jkfgy] laLFksP;k iapdesVhoj gjhtu vxj vuqlwfpr tekrh vxj jkT;
ljdkjus tkghj dsysY;k foeqDr tkrh iSdh 1 ,d vkfFkZd n`”V;k nqcZy ?kVdkiSdh
1 ,d vkfFkZd n`”V;k nqcZy ?kVdkiSdh 1 ,d fcxj dtZnkj lnL;kiSdh
1 ,d o brj ngk 10] lnL; vlrhy iSdh 2 nksu eghuk lnL; jkgrhy**
According to Shri Gangapurwala, the wording bye-law clearly lays down that the other reserved seats can be filled in either by borrower or a non-borrower, whereas the reserved seats for women will have to be filled in by borrowers only because the bye-law lays down that ‘from the rest of the 10 members, 2 shall be women’. Both Shri Patni and Shri Gangapurwala, further submitted that neither the statute nor Ihe judicial pronouncements have taken away the rights of the society to lay down the manner in which the reserved seats are to be filled in. This seats will have to be filled in as per provisions of the bye-law.
3. Categorization of the members of the Society on the basis of their relations with the Society is done as borrowers and non-borrowers. The rest of the categorization has nothing to do with the relation of the Member with the Society. The reservation in favour of Scheduled Caste or Scheduled Tribes, economically weaker sections or the women is on the basis of the fact that there classes are not adequately represented in the co-operative
movement and deserves special representation by way of reservation so as to bring them in the co-operastive movement. If this is the object of making the reservation for Scheduled Caste or Scheduled Tribes, economically weaker sections or women, then to interpret any provision to restrict their participation would be against the very purpose for which the reservation is made. Subsection (3) of section 73BBB provides thus :–
“Any individual woman member of the society, or any woman member of the committee of a member society, where elected, co-opted or appointed, shall be eligible to contest the election to a reserved seat on a committee of a society.”
Similarly, sub-section (3) of section 73-B provides that any individual member of the Society belonging to the Scheduled Caste or Scheduled Tribes, or as the case may be, weaker section, shall be eligible to contest the election to a seal reserved for that category. The legislative intent is expressed in unambigious and clear words. If a person belongs to Scheduled Caste and Scheduled Tribe or economically weaker section or is a woman, he or she, as the same may be, is entitled to contest the seat reserved for that category.
4. Sub-section (3) of section 73-C was pressed in service by the respondents to contend that the non-borrower woman has no right to contest from the seat reserved for women. Sub-section (3) of section 73-C is quoted below:–
“In the case of an Agricultural Credit Society which gives loans to individuals for the raising of crops, there shall not be more than one representative on the committee of such society, of members who have not taken any loans from the society; and that representative shall be elected only from amongst members, who have not taken loans. Such representative shall not be eligible for being elected as a designated officer.”
Relying on this provision, learned Counsel representing the respondents, wish to submit that (in) no circumstances more than one non-borrower member shall be the member of the managing committee of a Co-operative
Society. I am afraid, that such a meaning cannot be attached to sub-section (3) of Section 73-C. What is prohibited by this provision is that there shall not be more than one representative of such members. Therefore, a member representing the non-borrowers shall be only one on the Managing Committee. But it does not mean that a non-borrower cannot represent the interest of women, Scheduled Caste and Scheduled Tribe or economically weaker sections of the Society. Such a restriction has not been imposed by the statute. Distinction made between borrowers and non-borrowers and separate reservation for non-borrowers was considered by the Divisions Bench of this
Court in the case of Shri Dinkar Pandurang Patil v. Chikali Vividh Karyakari Society
Ltd., 1984 CTJ l37. Interpreting sub-section (3) of Section 73-C, the Division Bench was pleased to observe thus:–
“There is, no doubt, that on its plain wording, the section contemplates representation of borrowing members on the Committee by an elected representative. This does indicate the legislative recognition of the distinction, if not conflict, between the interest of borrowing and non-borrowing members and anxiety to prevent domination of the former by the latter. This is so notwithstanding there being nothing in the Act to prevent, a non-borrowing member in one year being a borrowing member the next year and vice versa. This representation by an elected representative from amongst them, still does not justify any inference of legislative intent to constitute any constituency of such non-borrowing members.”
The justification for restricting the representation of the non-borrowers was recognized by the Division Bench in this case. But it rejected the contention that the non-borrowers have separate constituency. This case was referred and relied by the learned single Judge of this Court in the case of Utrane Vividh Karyakari Seva Shahakari (V) Society Ltd. v. Laxman Dalpat Patil, 1989 Mh LJ 1125. The words, “the representative shall be elected only from amongst members who have not taken loans”, were interpreted by
this Court not to mean that the non-borrowers’ representative should be elected by non-borrower members alone. The learned Judge was pleased to observe thus:–
“The provision for election of a representative from amongst non-borrowing members under Section 73-C(3) does not mean that election of a representative of non-borrowers should be by the non-borrower members alone. It held that in the absence of any provision for election of such a representative by non-borrowing members alone, the right of borrowing members to exercise their vote in this election cannot be denied ….. The
Division Bench held that by virtue of the provisions of Section 73-C(3) there is no restriction on the right of borrowing members to vote for the candidates of all categories; nor is there a restriction on the right of non-borrowing members to vote for the candidates of all categories.”
5. In Babaji Kondaji Garad v. Nasik Merchants Co-operative Bank Ltd., Nasik, ; Supreme Court categorically pointed out thus (at p. 197):–
“Let there be no mistake that there is no reserved constituency which may divide the society or the electorate. The constituency is the general constituency. Only the seats are reserved. This would imply that the general body of members will elect persons eligible to fill in reserved seats.”
Therefore, if the elections to a Co-operative Society governed under the Maharashtra Cooperative Societies Act 1960, the seats are reserved for different categories, but the constitutency is one and the same. Constituency is the body of voters to elect representative. The New Webster’s Dictionary gives the meaning of the word “Constituency” as ‘A body of constituents; the body of voters, or, loosely, or residents, in a district represented by an elective officer. Therefore, the scheme of the elections to the Committee under Section 73 as explained by other provisions of the Act is that all the members of the Society have right to vote to all the candidates contesting all the seats including all reserved seats. The qualification to contest
a particular reserved seat is that the candidate must belong to that category. If the interpretation which the learned Counsel for respondents suggest is accepted, then a woman member may not be able to contest the reserved scat for Scheduled Caste and Scheduled Tribe or seat reserved for the non-borrowers. This would put a restriction for which there is no basis in the statute. A woman candidate or a candidate belonging to Scheduled Caste who is a non-borrower contesting a seat reserved for woman or for the Scheduled Caste would be representing the interest of the women and the Scheduled Caste, as the case may be, and not representing the non-borrower class. A non-borrower can be a woman and can also be the Scheduled Caste or Scheduled Tribe and may also belong to weaker sections of the Society. There is nothing in the Maharashtra Cooperative Societies Act I960 to prevent such member from contesling the seat reserved for any of these category.
6. This takes me to the submission made by Shri Gangapurwala, that assuming that there is no such restriction in the statute, the bye-laws of the Society have put this restriction.
The words
^^iSdh 2 nksu efgyk lnL; jkgrhy**
is a clause not merely attached to the previous words “10 members” but it will have to be read along with the whole provision which starts from the words
^^lfrrh 13 rsjk lnL;kaph jkfgy**
Every clause will have to be read as having a qualification to the general provision contained in the first sentence that the committee will be of 13 members and even assuming that such a bye-law is there in a given Society which provides that the only borrower member shall be entitled to contest the election scats reserved for women, such a bye-law would be contrary to the legislative mandate of Section 73BBB(3) and thus would not be operative to that extent. In the instant case, I find that the bye-law does not put such restriction.
7. While interpreting the provisions of
Section 73-B, Division Bench of this. Court in
the case of Vishwanath Jairam Chopde v.
Collector, Wardha. was pleased to summarize the major changes brought about by the said provision and was pleased to hold thus (at p. 113 of AIR):
“(b) Any member belonging to reserved category irrespective of his constituency may contest the election and every voter irrespective of his constituency and category — is entitled to cast his vote at the election of a reserved seat.”
Though the Division Bench in this case was interpreting the provisions of sub-section (3) of Section 73-B, same interpretation is available by sub-section (3) of section 73BBB also.
8. This being the position, the Returning Officer and the Assistant Registrar, Co-operative Societies, Sillod, have both erred in rejecting the nomination paper filed by the petitioner, Mrs. Tarabai Bhimrao Kale, from the seat reserved for woman in the election to Shivana Vishal Vividh Karyakari Seva Sahakari Sanstha Maryadit, Shivana, Taluka Sillod, District Aurangabad, and, therefore, these decisions will have to be quashed. The nomination paper filed by the petitioner is accepted and held valid. Her name should be included in the ballot paper. I direct respondents 1, 2 and 3 to prepare ballot paper in accordance with this order and hold the elections on the scheduled date i.e. 28th of February 1993. Rule is made absolute in the above terms. However, in the circumstances of the case, there shall be no order as to costs of this petition.
9. Order accordingly.