JUDGMENT
S.B. Mhase, J.
1. All these petitions have been clubbed together because a common question as to interpretation of Sub-section (3) and (3A) of Section 27 of the Maharashtra Co-operative Societies Act, 1960, as amended by Maharashtra Amendment Act No. XLI 2000 is involved, and therefore, all these petitions are being disposed of by this common judgment.
2. Writ Petition No. 4627 of 2000 sets out following facts which are relevant for interpretation of the said amending section.
3. On 26th June, 1998 the respondent No. 5 was registered under the Maharashtra Co-operative Societies Act, 1960 and the first provisional managing committee was appointed with 224 promoter members. Thereafter in the first meeting held on 30-6-1999, a resolution was passed admitting 253 persons who were eligible and who have complied the requirements of the bye-laws to the membership of the respondent No. 5 society. The said resolution was forwarded to the Assistant Registrar, the respondent No. 2, for approval and the approval was granted. On 21st January, 2000, the respondent No. 2 superseded the managing committee of the respondent No. 5 and appointed the Administrator on the said society. In Writ Petition No. 1983 of 2000 and 2140 of 2000, preferred by the Managing Committee members, apart from passing certain orders, this Court also directed that the election of the respondent No. 5 society shall be held within a period of six months from the date of order i.e. 12-7-2000. In the meanwhile, the above referred amendment was introduced in the Act on 17-10-2000. The respondent No. 3 was appointed as Returning Officer and the election programme was published in the newspaper “Parshwabhoomi” on 19-10-2000 and the provisional list of voters as on 30-6-2000 was published. All the members enrolled by the said society as on that date were included in the voters list. On 23-10-2000 the objections to the said voters list were raised and by an order dated 1-11-2000, the Returning Officer directed to delete the names of the voters from Sr. No. 225 to 477 of the voters list in view of the provisions of Section 27(3A) of the Act, and therefore, the present petition has been filed.
4. In the aforesaid writ petition, this Court has granted Rule on 7-11-2000, however, no interim relief was granted. However, during pendency of this petition, the elections to the Managing Committee of the respondent No. 5 are completed.
5. Facts in Writ Petition No. 86 of 2001 are that the petitioners are the members of the respondent No. 4 society. On 22nd December, 2000 the provisional voters list was published. The last date for raising objection to the provisional voters list was 26th December, 2000 and on the same date, the objections were raised by the petitioners in respect of 250 to 300 members who were enrolled during the period of last two years i.e. prior to the date of publication of voters list. The petitioners have raised objection that in view of the amended provisions of Section 27(3) and 27(3A) of the Act, the members who have been enrolled within a period of two years prior to the date of publication of voters list should not have been included in the voters list and their names should have been deleted. As the names were not deleted as per the objection raised by the petitioners, in view of the amended provisions of Section 27(3) and 27(3A) of the Act, the present petition has been filed. Apart from this main grievance, there are other objections of the petitioners to the said voters list, such as members who are residing outside the area of operation of the society have been included in the voters list, minor members have been included in the voters list etc. However, this Court is not concerned with the said objections except the objection raised in view of the amended provisions of Section 27(3) and 27(3A) of the Act. In this petition, rule was issued by this Court on 10-1-2001, however, during pendency of this petition, the elections of the respondent No. 4 society have been completed.
6. Facts of Writ Petition No. 5139 of 2000 and Writ Petition No. 68 of 2001 are that both these petitions pertain to Bhusawal Peoples Co-operative Bank Limited. Writ Petition No. 5139 of 2000 has been filed by the members of the Board of Directors of the said Bank; whereas Writ Petition No. 68 of 2001 has been filed by some of the members of the said bank, rather in representative capacity of similarly situated persons and especially representing those members whose names have been deleted from the voters list in view of the provisions of Section 27(3) and 27(3A) of the Act. The elections of the managing committee members of the said bank were due and as the said bank is a notified society within the meaning of Section 73IC of the said Act, the bank requested the District Deputy Registrar to inform the cutoff date to prepare the provisional voters list so as to submit it to the District Deputy Registrar. By the letter dated 26-6-2000 the District Deputy Registrar informed the cutoff date as 19-8-2000 as per the provisions of Rule 56B of the Maharashtra Co-operative Societies Rules, 1961. On 17-10-2000 the Bank prepared the provisional voters list showing the names of members of the said bank as on cutoff date 19-8-2000 and submitted the same to the District Deputy Registrar, informing that there are 35,947 members. The said provisional voters list was published on 11-12-2000. The last date for raising objections was 20-12-2000 and 26th December, 2000 was the date for publication of final voters list. Thereafter the election programme was to be published for further stages of election. While this process was going on, on 2-12-2000 the District Deputy Registrar pointed out that there is an amendment to Section 27(3) and 27(3A) of the Maharashtra Co-operative Societies Act, and therefore, the Board of Directors filed Writ Petition challenging the vires of the said amendment effected to said Section 27(3) and 27(3A) of the Act, as well as challenged the letter dated 2-12-2000 issued by the District Deputy Registrar.
7. On 20th December, 2000 this Court granted Rule, however, interim relief was not granted, as a result of which District Deputy Registrar proceeded to decide the objections to the voters list and by his order dated 29-12-2000 directed that as per the amendment to Section 27(3) and 27(3A), the names of the members be deleted from the provisional voters list and the final voters list shall be prepared. Therefore, the petitioners have approached this Court by filing the Civil Application No. 2 of 2001 seeking to quash and set aside those orders and pending the hearing of the said Civil Application, interim stay to the said order passed by the District Deputy Registrar was also sought. The learned Single Judge of this Court on 1-1-2001, during vacation, directed that in view of the fact that the matter is being fixed for considering the challenge to the impugned order on 9-1-2001, it is directed that the society shall prepare the list in accordance with the directions contained in Clause (a) of the impugned order and keep sufficient copies of the same available for reference by the Court as well as the respondents. The finalisation of the voters list shall be subject to the orders those may be passed by this Court. The submission of modified lists by the society on 9-1-2001 to this Court shall be treated as a compliance of Clause (a) of the impugned order. In compliance with this direction, the Returning Officer has submitted three lists to this Court. All these three lists contain the names of the persons who are members of the bank, who have not completed the period of two years prior to 15-2-2001. The list of Bhusawal City Constituency consists of 2589 members; list of Bhusawal, Bodhwad and Muktainagar Taluka Constituency consists of 242 members and the list of other Taluka constituency consists of 281 members. Thus the names of in all total 3112 members of the bank were deleted by the District Deputy Registrar, acting as Returning Officer in view of the provisions of Section 27(3) and 27(3A) of the Act. However, as stated hereinabove, as a result of the order passed by the learned Single Judge, referred to above, finalisation of the voters list is subject to the orders those may be passed by this Court, the list is not finalised.
Writ Petition No. 68 of 2001 has been filed by the members in the representative capacity challenging the order passed by the District Deputy Registrar on 29-12-2000 directing to prepare the voters list after deleting the names of the members from the provisional voters list, in view of the amending provisions of Section 27(3) and 27(3A) of the Act.
8. Writ Petition No. 4765 of 2000 has been filed by the Chairman of Barashiv Hanuman Sahakari Sakhar Karkhana Limited which is a specified Cooperative society under the said Act and the elections of the said society are governed by Chapter XI-A of the Act, and the Maharashtra Specified Cooperative Societies (Election to Committees) Rules, 1971. The first Board of Directors of the said sugar factory was appointed on 31-12-1997. In Writ Petition No. 5038 of 1999 and Writ Petition No. 124 of 2000, this Court directed the Collector, Hingoli, to take appropriate steps to hold the elections before 21-12-2000, as the term of the appointed Board of Directors was coming to an end. As per these directions, the Sugar factory, the Commissioner and the Government requested the Collector, to initiate the election process. By the letter dated 9-3-2000 the District Deputy Registrar directed the sugar factory to submit the provisional voters list taking the cutoff date as 31-12-1999. However, the Collector by letter dated 22-8-2000 informed that the cutoff date as 31-3-2000. On 22-5-2000 six copies of the provisional voters list were submitted. On 30-5-2000, the Assistant Registrar instructed the Co-operative Officer to verify and scrutinise the voters list. On 14-10-2000 the sugar factory was instructed to submit a fresh provisional voters list in tabular form pursuant to the ordinance issued by the letter dated 24-10-2000 and 25-10-2000. The sugar factory made a representation against the directions issued by the authorities to submit the voters list as per the recent amendment to the Maharashtra Co-operative Societies Act, treating the cutoff date as 31-3-1998. The said date 31-3-1998 was taken as a cut off date in view of the amended provisions of Section 27(3) and 27(3A) of the Act. As the authorities were not ready to accept the representations, the present petition has been filed.
9. From the above referred sets of facts in different petitions, it would be evident that the specified societies, notified societies and other ordinary societies are involved and all those possible kinds of societies classified on the basis of the election process have been involved. It is further pertinent to note that the elections to the specified societies are governed by Chapter XI-A of the Act, and the Maharashtra Specified societies (Election to Committees) Rules, 1971. While the elections of the notified societies are governed under Section 73IC of the Act, and Rule 56A to 56A-35 i.e. Chapter V-A of the Maharashtra Co-operative Societies Rules, 1961 and the elections to the rest of the societies i.e. societies which are not classified as specified societies, notified societies are governed under the bye-laws of the said societies. Therefore, it would be evident that the interpretation of Section 27(3) and 27(3A) of the Act, which is applicable to all the societies, irrespective of category or classification, is necessary, not only to regulate the elections but also to regulate the affairs of those societies.
10. The main controversy centers around the question, as to whether the provisions of Section 27(3) and 27(3A) as amended by the Maharashtra Amending Act No. 41 of 2000 on 23-8-2000 are prospective in its application or not? If the said provisions are to be applied prospective, then whether it is retroactive on the date of its enforcement or on the date of its coming into force i.e. on 23-8-2000?
11. Before we proceed to consider the main question, it is necessary to make reference to the relevant provisions of the Act. Section 27 regulates the voting powers of the members. Section 27 of the Act, so far as it is relevant for our purpose, is reproduced hereunder:
27. Voting powers of members.–(1) Save as otherwise provided in Sub-section (2) to (7), both inclusive, no member of any society shall have more than one vote in its affairs; and every right to vote shall be exercised personally and not by proxy :
Provided that, in the case of an equality of votes the Chairman shall have a casting vote;
(2) Where a share of a society is held jointly by more than one person, the person whose name stands first in the share certificate, shall have the right to vote. But in his absence the person whose name stands second and in the absence of both, the person whose name stands next, and likewise, in the absence of the preceding persons the person whose name is next on the share certificate, who is present and who is not, a minor, shall have the right to vote.
(3) A society which has invested any part of its funds in the shares of any federal society, may appoint one of its members to vote on its behalf in the affairs of that federal society, and accordingly, such member shall have the right to vote on behalf of the society :
Provided that, any new member society of a federal society shall be eligible to vote in the affairs of that federal society only after the completion of the period of three years from the date of its investing any part of its fund in the shares of such federal society;
Provided further that, where the election is to a reserved seat under Section 73-B, no person shall have more than one vote. (3A) An individual member of a society shall not be eligible for voting in the affairs of that society for a period of two years from the date of his enrollment as a member of such society.
[Rest of the clauses of said section are not relevant.]
Section 72. Final authority of society. –Subject to the provisions in this Act and the rules, the final authority of every society shall vest in the general body of members in general meeting, summoned in such a manner as may be specified in the bye-laws.
Where the bye-laws of a society so provide, the general meeting shall be attended by delegates appointed by the members, and such meeting shall be deemed to be the meeting of the general body for the purpose of exercising all the powers of the general body. Section 73. Committee, its powers and functions.–(1) The management of every society shall vest in a committee, constituted in accordance with this Act, the rules and bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed respectively by this Act, the rules and the bye-laws.
(1AB) *** *** *** (1A) Notwithstanding anything contained in this Act, the rules made thereunder or in the bye-laws of any society or class of societies,-- (a) the first general meeting of a society shall be convened within three months from the date of its registration to appoint a, provisional committee and to transact other business as may be prescribed. The term of the members of such provisional committee shall be for a period of one year from the date on which it has been first appointed or till the date on which a regular committee is duly constituted in accordance with the provisions of the rules or bye-laws made under this Act, whichever is earlier; and all the members of such provisional committee shall vacate office on the date of expiry of such period or such constitution of the committee. [Rest of clauses of said section are not relevant for our purpose]
12. On plain reading of aforesaid Section 27 of the Act, it is crystal clear that Section 27 regulates the voting powers of the members in the affairs of the society. The election is one of the affair of the society, and therefore, voting rights of the members to elect the managing committee is one of the right, which is included in the voting powers of the members in the affairs of the society. A member may be required to vote apart from the election of the managing committee, in several other affairs of the society such as on the subjects stated in Rule 59 and 60 of the Rules of 1961. Ultimately, whenever there is general meeting either first, regular or special, in all those meetings on the subjects which are on agenda, those subjects being the affairs of the society, the members have a power to vote as per the provisions of Section 27 of the Act. This is being analysed in order to demonstrate that apart from the elections to the managing committee of the society, there are several other occasions where a member is supposed to cast his vote in the affairs of the said society and the said voting power of the member is regulated by Section 27 of the Act. Therefore, it will not be appropriate to consider that Section 27 only regulates the voting powers of the member qua the election of a society. It is a general section dealing with the general voting power of a member of a society in the affairs of the society.
13. Sub-section (3) of Section 27 of the Act, speaks about the voting power of a member society in the affairs of the federal society. It contemplates that a society which has invested any part of its funds in the shares of any federal society, can exercise voting power by appointing one of its members to vote on its behalf in the affairs of that federal society. Thus where a society is a member of the federal society, voting right on behalf of such society in the affairs of a federal society can be exercised through a nominated or appointed member of such society. However, the Maharashtra Amending Act No. 41 of 2000 inserted a proviso thereby regulating the said rights of member society in the affairs of a federal society, which is to the following effect:–
Provided that, any new member society of a federal society shall be eligible to vote in the affairs of that federal society only after the completion of the period of three years from the date of its investing any part of its fund in the shares of such federal society;
Thus, member societies voting power is kept under suspension for a period of three years from the date of investment of its funds in the shares of the federal society. In short, from the date of its enrollment as a member of the federal society, for a period of three years, a member society shall not have voting right in the affairs of the federal society. Similarly, a restriction has also been imposed on the individual member of a society by inserting clause No. (3A) by the said amending Act. Said clause is to the following effect:
(3A) An individual member of a society shall not be eligible for voting in the affairs of that society for a period of two years from the date of his enrollment as a member of such society.
Thus, the only difference between member society of the federal society and the individual member of a society is that the voting right of member society of a federal society is suspended for a period of three years; whereas the voting right of an individual member of a society is suspended for a period of two years from the date of enrollment as a member. The main controversy, as stated hereinabove, centers around about the curtailment and/or suspension of voting right, as is evident from Sub-section (3) and (3A) of Section 27 of the Act, and the said controversy is to the following effect:
(i) What happens to the voting rights of the members who were enrolled in between two years prior to coming into force of the Maharashtra Amending Act No. 41 of 2000 dated 23-8-2000 i.e. the members who were enrolled on or before 22-8-2000?
Because, the members who were enrolled on 23-8-2000 i.e. on the day when the said Amending Act came into force and thereafter, will be governed by the Amending Act. As the facts of various petitions stated above point out that the controversy involved is only in respect of the members who were enrolled on 22-8-2000 or two years prior to the coming into force of the said Amending Act on 23-8-2000. Except petitioner in Writ Petition No. 86 of 2001, all the petitioners have contended that all those members who were enrolled in between two years on or before 22-8-2000 are eligible and entitled to take part in the affairs of the society and more particularly in the elections of the managing committee of the society irrespective of the amended provisions of Section 27 of the Act. Not only that, but it appears that the Officers of the Department are giving different interpretations to the said amended provisions. Some of them are stating that the members who were enrolled on or before 22-8-2000 upto the period of two years are not entitled to get voting right and/or some of the officers are interpreting the said provision to mean that those members are entitled to get the voting right. Therefore, in order to overcome such anomalous situation, all these Writ petitions have been heard expeditiously. In all these petitions, Government filed its return stating that this Amending Act is prospective in application. However, it is being interpreted by them that all those society members who were enrolled within the period of three years prior to coming into force of the Act and in case of individual members two years prior to coming into force of the said Act are not entitled to vote in the election to the managing Committee of a society in view of the proviso to Section (3) and Sub-section (3A) of Section 27 of the Act respectively. Thus, the respondent State accepted that the Act is prospective in application, however, it will be retroactive to the extent of the period covered by the said Amending Act. As against this, the learned Counsel for the respective petitioners in the writ petitions contend and submit that the Act is prospective in its application and unless and until Legislature specifically directs that it is retrospective it shall not be made applicable retrospectively. They further submitted that the said amendments are not enabling provisions and/or procedural one, and therefore, the same cannot be made applicable retrospectively. They further submitted that the amendment curtails the substantive right of a member of a society or member society of a federal society, and therefore, the Legislation which curtails a substantive right of a person and/or member shall not be interpreted to mean that it is applicable retrospectively or retroactive, unless the Legislature specifically makes it applicable retrospectively. The learned counsel for the petitioners submitted that it will be inappropriate not to allow the members to participate in the elections by applying the amended provisions retroactively as desired by the Government because all those members who were enrolled two years prior to the coming into force of the said Amending Act i.e. on 22-8-2000 or before that, must have taken part in the affairs of the society by attending the first meeting, general meetings, regular or special meetings of the concerned society and thus the substantive right which has already been accrued and exercised for a period of two years, part of the said right cannot allowed to be taken away by making the said amendment applicable retroactive.
14. Thus, from the submissions made by the petitioners counsel and the Government Pleader, it is an admitted fact that Maharashtra Amending Act No. 41 of 2000 amending Section 27 of the Maharashtra Co-operative Societies Act is prospective in application, and therefore, it will govern the rights of the individual members and/or society members from its date of coming into force i.e. 23rd August, 2000. The only question, therefore ultimately remains for consideration is as to whether the members who were enrolled during the period of two years prior to coming into force of the Amending Act No. 41 of 2000 are entitled to take part in the affairs of the said society and more specifically in the elections of the Managing Committee, and therefore, the question is whether Amending Act has affected or taken away the voting rights of the members who were enrolled two years prior to coming into force of the said Amending Act. In short, even though admittedly the Act is not retrospective in application, whether it is retroactive to the extent of the period of two years in case of individual members and three years in case of society member of a federal society, prior to coming into force of the Maharashtra Amending Act No. 41 of 2000. It requires to be stated that before coming into force of the said Maharashtra Amending Act, member society and the individual members were entitled to vote in the affairs of the society immediately after their enrolment as a member of the concerned society. Therefore, all those members who were enrolled prior to coming into force of the said Amending Act, some of them may have attended two general body meetings, some of them might have attended one General Body meeting, and if there had been any special general body meeting, they must have attended and participated in the said meeting also. Therefore, all those members who were enrolled prior to coming into force of the said amending Act, were not simpliciler members enrolled but they have taken part in the affairs of the said society. It further requires to be stated that in those societies if election is on yearly basis or in those societies where the elections have taken as per the directions issued by this Court, those members must have participated in such elections by exercising their right of vote. If only because of some reasons, the managing committee could not remain in office and now the elections have become due, it cannot be said that the amendment has taken away the rights of the members to vote and/or participate in the affairs of the said society. It may also happen that person who was earlier elected as a member of the managing committee may because of the above referred circumstance, will not be allowed to contest the election now in view of the Amending Act, and therefore, several complications arise if the said amendment is made applicable retroactive. One more aspect requires to be emphasized that the proviso to Section 27(3) and Sub-section (3A) of Section 27 lay down the eligibility for voting in the affairs of the society. The proviso states that a member society of a federal society shall be eligible to vote in the affairs of the federal society only after completion of a period of three years from its enrolment as a member whereas Sub-section (3A) of Section 27 of the Act states that an individual member of a society shall not be eligible for voting in the affairs of a society for a period of two years from the date of his enrolment as a member. Therefore, earlier to the coming into force of the Amending Act, member society of a federal society on its enrolment and the individual member of a society on his enrolment as a member of the society was held to be eligible to exercise voting power. However, by the Amending Act, the conferment of the membership to the member society or individual member does not confer voting power in the affairs of the said society, but it prescribes the period after which such member society or an individual member will be eligible to vote in the affairs of a society. Thus in short, in order to exercise voting power when a member society or an individual member of a society becomes eligible to vote in the affairs of a society has been provided by the Amending Act No. 41 of 2000. Thus, it is evident that this eligibility condition was not in the Statute Book prior to coming into force of the said Amending Act, and therefore, those persons who have accepted the membership, they have obtained membership of respective societies as per law prevailing at that time and as demonstrated earlier, as per the prevailing law at the relevant time the voting right of a member in the affairs of the society was co-existent with the enrolment as a member of the concerned society and/or it was as a consequence of enrolment as a member of the concerned society, the voting right was vested in the individual member and/or society member in view of the then existing provisions of Section 27 of the Act and that the concerned member has accepted the membership knowing fully well that on enrolment as a member the concerned member gets that right to vote in the affairs of a society as provided in Section 27 of the Act before amendment. Because, had the concerned member and/or society known at that time itself that there is no right to participate in the affairs of the concerned society for a period of two years or three years as the case may be, as provided in the amendment, probably some of them may not have accepted the membership also, in short, the right which was then vested in those members cannot be taken away by subsequent amendment which lays down the eligibility for the purpose of getting the said voting right in the affairs of the society. The condition of eligibility cannot be made applicable retroactive. The member who opts for membership after coining into force of the said Amending Act is fully aware that unless he completes the period as provided in the amendment, he will not be eligible to get the voting right in the affairs of the society, and therefore, the member who is enrolled after coming into force of the said Act cannot be equated with the member who was enrolled prior to coming into force of the said Amending Act.
15. It is pertinent to note that as a consequence of amending Act all those members who were or are enrolled after coming into force of the said Act, may probably, being the members of the said society, attend the general body meeting or special general body meeting of the society but they are not eligible to vote in the affairs of a society till they become eligible as provided in proviso to Sub-section (3) or (3A) of Section 27 of the Act. If these provisions are made applicable retroactive, then those members who have already participated in the affairs of the said society will be treated equal to the members enrolled after coming into force of the said Amending Act, till they complete the eligibility condition as per the Amending Act and this result is unwarranted. It is settled provisions that the right which has already been vested and exercised cannot be taken away by the provisions which is prospective in its application.
16. An individual member of a society who was once eligible to exercise voting power in the affairs of the said society cannot be said to be ineligible because of subsequent amendment. Our attention was invited to the statement of Objects for amendment of Section 27 of the Act, which states as follows :
It has been noticed that when the election to the federal societies are due, number of new societies are registered with a view to get voting right on that federal society. It is also noticed that majority of the newly registered societies thereafter become defunct and do not fulfil their objective. The Commissioner of Co-operation has conducted survey of the defunct societies in the year 1995 and number of such defunct societies was 11,548. It is found that majority of such (defunct) societies are formed only to be able to take part in the election of the federal societies. The participation of such societies in the elections of federal societies hampers the interaction and representation of good and working societies in the federal societies. Therefore, the Government considers it necessary to stop this unhealthy trend for such societies, by suitably amending Section 27 of the Act. To ensure its effectiveness, care is also taken to curb enrolment of individual members on the eve of election to get the undue advantage in election by vested interest, by putting a qualifying period of two years before such member gets the right to vote for the elections of the board of the society.
Thus, it is submitted that taking past experience of registration of defunct societies on the eve of election and/or enrolment of individual members on the eve of election, the amendment has been proposed. What we find from the Statement of Object is that the past experience has been considered and in future same thing should not be repeated and for that purpose the amendment has been introduced and brought into force. However, the statement of object never contemplated that the said amendment is to be applicable retrospectively and/or retroactive. What is further pertinent to note is that the Legislature only considered the voting power of a member in the light of election to the managing committee, and therefore, in order to stop the unhealthy trend of registration of societies and/or enrolment of individual members on the eve of election, the said amendment has been brought into force. Thus, it was never desired that those member societies or individual members who were enrolled prior to coming into force the said Amending Act, would also be covered by the said amendment, because in that eventuality the Statement of Objects should have made it very clear that the said amendment has been proposed retrospectively and/or retro active. However, the statement of object points out that the mischief which are noticed in the past, should not be repeated and/or the same should be stopped. What we find is that voting in the elections to elect the managing committee is itself not the only voting power in the affairs of the society, but it may be a part of it, and therefore, the object of this amendment is not to take away the total voting powers of the members in the affairs of a society but to regulate the part of the said power which is related to the elections to the managing Committee of a society. However, even though this is the object, the provision in the Amending Act is of general nature totally affecting the voting powers of the members in the affairs of the society. When the Statement of Object only contemplate to regulate part of such voting power in the affairs of a society, it will be inappropriate to take away the said power of a member on the basis of the general language used in the said Amending Act. Thus, what we find is that the Statement of Object of amendment even though considered the past experience qua the voting rights in the election to the managing committee of a society, it does not explain the as to why the total voting power is regulated, it is well settled principle that when we look to the Statement of Object when we find that there is some ambiguity in interpreting the concerned provision. However, the general language used in the Amending Act No. 41 of 2000, cannot be interpreted to so as to restrict it to the object which is evident from the statement of object. We have gone through the Statement of Object of the Amending Act No. 41 of 2000 only in order to scrutinise whether the Legislature desired to have the effect of the said amendment retrospectively or retroactive. We find from the Statement of Object the said amendment is to be made applicable prospectively and the Legislature never desired to make the same applicable retroactive as submitted by the learned Counsel for the respondent-Stale. Therefore, we find that all those members who were enrolled on or before 22-8-2000 either as a member of a federal society or an individual members of a society, are entitled and eligible to take part in the affairs of the concerned society and the amendment does not affect the voting power of the members who were enrolled on or before 22-8-2000 or two years prior thereto. The said amendment only regulates the voting powers of the member societies and/or individual members who are enrolled on or after 23-8-2000 i.e. the day on which the said amendment has brought into force.
17. The net result of the aforesaid discussion is that all those member societies or individual members who were enrolled prior to coming into force of the said Amending Act, are eligible and entitled to take part in the affairs of the society including the elections to the managing committee. We may point out at this stage that Rule 56B of the Maharashtra Co-operative Societies Act, 1960 and Rule 4 of the Maharashtra Specified Societies (Election to Committee) Rules, 1971 may not remain on the statute book after the period of two years after coming into force of the said Amending Act No. 41 of 2000 and the necessary amendment in both the Rules will have to be effected.
18. Mr. Dhorde-Patil, learned counsel for the petitioner tried to submit making reference to Sections 72 and 73(1A) of the Act, which is quoted hereinabove, read with the provisions of Rule 59 of the Rules of 1961, pertaining to first general body meeting, that a member who has been enrolled as a member of the society will not be entitled to take part in the affairs of the society when in law the final authority of the society vests in the general body of the members of the said society. He, therefore, submitted that the amendment effected by Maharashtra Amending Act No. 41 of 2000 is inconsistent with the existing provisions of the Act and the Rules. What we find is that the final authority of the society as stated in Section 72 is subject to the provisions of the Act and the Rules, and therefore, Section 72 is naturally subject to the provisions of Section 27 of the Act, which regulates the voting powers of the members in the general body meetings. Therefore, there is no inconsistency as contended by Mr. Dhorde-Patil, learned Counsel for the petitioner.
19. The learned counsel for the petitioners further urged a contention that the first general body meeting of a society after its constitution has to be convened within a period of three months in order to appoint a provisional committee and to transact the business of the said society, as prescribed under Rule 59 of the Rules of 1961. He further pointed out that the term of the provisional committee is for a period of one year from the date of its appointment, and therefore, regular committee is required to be constituted by election. However, he pointed out that in view of the provisions of Section 27 of the Act, those members will not be allowed to participate for a period of three years in case of member societies of a federal society, and for a period of two yeas in case of individual members of a society, and therefore, it is impossible to operate the provisions of Section 73(1A)(a) of the Act. What we find is that Section 73(1A)(a) operates in the field when society is registered and its managing committee to be constituted and therefore, legislature specifically provided as to how the provisional committee and the first managing committee of the society shall be constituted. This is in the backdrop of the circumstances, that the Legislature is aware of the amended provisions of Section 27 of the Act. What we find is that both the provisions though ex-facie appear to be conflicting with each other, are not conflicting with each other. Section 73(1A)(a) is a special provision which regulates the constitution of provisional committee on registration of a society. It starts with non obstante clause to the effect that “Notwithstanding anything contained in this Act…..” Therefore, it has to be read as notwithstanding anything contained in Section 27 of the Act, and therefore, what we find is that while implementing the provisions of Section 73(1A)(a) there is no conflict with Section 27 of the Act and the Committees can be constituted and elected as provided in Sub-section (1A)(a) of Section 73 of the Act irrespective of the fact that the voting power of the member society or individual member regulated under Sub-section (3) proviso and Sub-section (3A) of Section 27 of the Act. Therefore, we find that there is no substance in the contentions raised by the learned Counsel for the petitioners that the said amendment is inconsistent with the existing provisions of the Act and the Rules.
20. In view of the fact that we have noticed that there is no conflict and/or inconsistency between the provisions of Section 73(1A)(a) and 27 of the Act, when the society is registered for first time, it is evident that all those promoter members will be entitled to be appointed as nominated managing committee members and also to be elected as Managing Committee members if the election is conducted as per the provisions of Section 73(1A) of the Act and thereafter if for whatever reasons, the body could not continue for the period for which it is elected on account of supersession under Section 78 of the Act or no confidence motion etc. and if the elections became due and/or directed to be held within a period of two years, it will be inappropriate and unjustifiable to say that those members are not now entitled to take part in the election because of the amended provisions of Section 27 of the Act and such deadlock cannot be created.
21. Mr. Pradip Deshmukh, learned Counsel for the respondents in W.P. No. 5139 of 2000 while supporting the contention that this amendment is retrospective and/or retroactive, relied upon the judgment in the case of K.S. Paripoornan v. State of Kerala, particularly para No. 44 to 46. We have gone through the said judgment. It pertains to the provisions of Section 23(1A) of the Land Acquisition Act, inserted by Amendment Act No. 68 of 1984 and its application to the pending cases under the Land Acquisition Act. Para No. 44 of the said judgment is about the general principles of interpretation of the Statutes. Para No. 45 speaks about some principles applied while effecting the amendment to the Statutes and para No. 46 states about the position of law and as to how the amendment is to be made applicable to the pending proceedings. What we find is that in the present matter, we are not considering the scope of Section 27 of the Maharashtra Amending Act No. 41 of 2000 in relation to the pending proceedings. In the case cited (supra) the Apex Court has held that Section 23(1A) which provides for obligation to pay additional amount by way of compensation is prospective in its application and that if the provision is applied to the acquisition proceedings which commenced prior to its enactment, the additional obligation in the matter of payment of compensation is imposed for such acquisition, the effect would be that the said provision would be operating retrospectively in respect of the transactions already passed. Ultimately, the Apex Court has held that the provisions is applicable prospective and will not have retrospective application. Here in the present cases, we are not considering the application of Section 27 of the Maharashtra Co-operative Societies Act as amended by Maharashtra Amendment Act No. 41 of 2000 to the pending proceedings, and therefore, the ratio laid down in the case cited (supra) is not applicable. On proper reading of the said case it points out that the statutes which deal with the substantive rights of the parties shall be interpreted as prospective in its application unless the Legislature specifically intends to apply it retrospectively.
22. Mr. Pradip Deshmukh, learned Counsel further relied on a decision of the Supreme Court in the case of Darshan Singh v. Ram Pal Singh, . While interpreting the provisions of Punjab Customs (Power to Contest) Act (2 of 1920) as amended in 1973, the Apex Court has held that the Bar to contest placed by Section 7 applies to the pending proceedings. This case also deals with the application of said amendment to the pending cases. From para No. 32 onwards of the said judgment, it is revealed that the point of retrospective application was considered. The Apex Court has noted that after the amendment there has been series of decisions of the Punjab and Haryana High Court holding that the Amendment Act applies to the pending cases also. In para No. 33, the Apex Court has followed the ratio laid down in Ujaggar Singh and Udham Singh’s cases following the principle of Stare decisis et non quieta movere. To adhere to precedent, and not to unsettle things which are established. Thereafter, in para No. 37 it is observed that:
“We are inclined to take the view that in the instant case. Legislature looked back to 23rd January, 1973 and not beyond to put an end to the custom and merely because on that cut off date some contests were brought to abrupt end would not make the Amendment Act retrospective. In other words, it would not be retrospective merely because a part of the requisites for its action was drawn from a time antecedent to the Amendment Act coming into force.”
Ultimately, the Apex Court has observed that applying Amendment Act of 1973 to alienations prior to 23-1-1973 does not necessarily mean its retrospective operation.
23. As analysed earlier, here in the case cited (supra) question which was dealt was the application of amendment to pending cases. We find that the ratio laid down in the aforesaid case, is not applicable to the facts and circumstances of the present case.
24. The learned Counsel Mr. Pradip Deshmukh, further relied on the judgment in the case of Bishun Narain Misra v. The State of U. P. wherein the age of retirement was reduced from 58 years to 55 years. While considering the question whether it retrospective or not, it is observed that the new rule reducing the age of retirement from 58 years to 55 years could not be said to be retrospective. The proviso to the new rule and second notification were only methods to tide over the difficult situation which would arise in the public service if the new rule was applied at once and also to meet any financial objection arising out of the enforcement of the new rule. The new rule, therefore, could not be struck down on the ground that it was retrospective in operation. In the result, the Apex Court has held that new rule is not retrospective.
25. Mr. Deshmukh, learned Counsel further relied on a case reported in 1994(2) SCC 726 in the case of Sri Ranga Match Industries v. Union of India. This case also deals with retrospective effect of validating Act and the power of Legislature giving retrospective effect to validating enactment to remove the defect/lacuna or change the basis on which any statutory provisions /rules/ regulation/notifications declared invalid by Court. However, the ratio laid down in the case cited supra is not applicable to the facts and circumstances of the present case, because we are not considering the applicability of validating Act. Mr. Deshmukh, learned Counsel further relied on the judgment in the case of T.K. Lakshmana v. State of Madras, and in the case of Union of India v. Zora Singh. We have gone through the cases cited supra and we find that these cases are not applicable to the facts and circumstances of the present case.
26. We have pointed out as to how the cases relied upon by Mr. Pradip Deshmukh, learned Counsel, are not applicable in the facts and circumstances of the case. We may make a reference to Section 4 of the Benami Transactions (Prohibition) Act, 1988, which provides that no suit, claim or action to enforce any right in respect of any property held benami will lie in any Court. While interpreting this section, the Apex Court in the matter of Mithilesh Kumari v. Prem Behari Khare has observed that Section 4 of the Benami Transactions (Prohibition) Act, 1988 applies even to the pending suits, appeals etc. from the date of its coming into force of the said Act and the Act is retroactive. However, this case has been overruled by the Apex Court in a subsequent judgment in the case of Duvuru Jaya Mohana Reddy and Anr. v. Alluru Nagi Reddy and Ors. and has held that said section is prospective in its application and has overruled the judgment in case of Mithilesh Kumari v. Prem Behari, . Thus, what we find is that while considering the scope of application of Section 4 of the Act to the pending cases on the date coming into force of the said Act. The Apex Court has held that Section 4 is not retrospective in application and that it is prospective in its application. It is further held that the rights involved in the suits and appeals which were pending on the date of commencement of Section 4 are not affected by Section 4 of the said Act. In short, the said statute was held to be prospective in application. Therefore, it is common trend of the Apex Court that unless and until the Legislature specifically provides and/or lays down that the Act is retrospective or retroactive, it has refused to apply the Act retrospectively. Thus, what we find is that there is no substance in the contentions raised by Mr. Pradip Deshmukh, learned Counsel for the respondent.
27. While opposing the tenability of the petition filed by Bhusawal People Co-operative Bank, the learned Counsel submitted that the ratio laid down in the case of Karbhari Agawan v. State of Maharashtra and Ors., the present case is not tenable. He further submitted that whether the bank can come before this Court for the reliefs claimed especially stalling the election process. It is pertinent to note that the ratio laid down in Karbhari Agwan’s case in the facts and circumstances of the present case, would not be applicable. In the said case, this court considered the scope of this Court to decide the controversy between the parties while the election process is on and it has been considered that after finalisation of the voters list and before declaration of election programme under Rule 16 of 1971 Rules, the Court can entertain petition under Section 226 and if possible can grant appropriate relief. The bank being a notified society on reading of Rule 56D with Rule 56J such argument was possible. However, in the present matter this Court by order dated 1-1-2001 passed in Civil Application No. 2 of 2001 has already passed an order that finalisation of voters list shall be subject to the orders those may be passed by this Court and to fix the matter on 9-2-2001 and in the result as a result of intervention of this Court, the voters list is not yet finalized, and therefore, the ratio laid down in Karbhari Agwan’s case is not applicable. Mr. Pradip Deshmukh, learned Counsel made a reference to Writ Petition No. 90 of 2001 which was rejected in limine, and submitted that such ratio has been made applicable while rejecting that petition. However, we find that the said writ petition was rejected in limine and secondly out of number of reasons which are given for rejecting the said writ petition in limine, the ratio laid down in, Karbhari Agwan’s case is one of the reason. On merits, this Court has noticed that prima facie the grievance made by the petitioner is not covered by Section 11 of the Maharashtra Co-operative Societies Act, because there is no grievance in respect of the members whose names were objected on the ground that they are not residing within the area of operation of the society. However, the grievance was only in respect of change of constituency by changing the address and that has been rightly rejected even keeping the remedy of election petition open. What we find is that the rejection of that writ petition cannot be treated as a ground to reject the present writ petition. In view of the peculiar facts and circumstances of the case we negative the said contention.
28. So far as stalling of election process by the bank is concerned, the bank has approached after making representation to the concerned officers challenging the validity of Section 27(3) and 27(3A) of the Act. No doubt that was later on given up, however, that does not mean that the bank has no authority to correct the voters list. The voters list being the basic document, it is obligatory on the part of the bank to prepare it properly as ultimately it is the bank which submits the provisional voters list to the Returning Officer for publication etc. and if that is incorrectly prepared, the whole election process would be affected and when it was noticed that the stand taken by the bank interpreting the provision of Section 27(3) and (3A) is not being accepted by the concerned officers of the respondent the Bank has approached this Court to correct the voters list. What we find is that as a result of incorrect interpretation made by the officers of the respondent near about 3112 members were deleted from the voters list which will materially affect the voting powers of the members and therefore, we reject the contention raised by the learned Counsel Mr. Deshmukh that the bank cannot come before this Court stalling the election process.
29. Thus, we summarise our conclusions as follows:
(i) The Maharashtra Amendment Act 41 of 2000 as brought into force on 23-8-2000 amending the provisions of Section 27 of the Maharashtra Co-operative Societies Act, is prospective in its application. (ii) The members societies of a federal society or individual member of a society who were enrolled in between the period of two years i.e. on or before 22-8-2000 are eligible and entitled to exercise voting power in the affairs of the society and they are not affected by the amended provisions of Section 27 of the Maharashtra Cooperative Societies Act and the said Amendment Act is not retro active and/or retrospective in its application for a period of two years in case of individual members and three years in case of society members, from the date of coming into force of the said Act. (iii) Since we find that in W.P. No. 4627 of 2000 and 86 of 2001 the election have been held and therefore, the remedy of election petition is open for the petitioners in the said writ petition, therefore, we refuse to entertain the said writ petitions. 30. As the point of Constitutional validity is not being pressed, Writ Petition No. 5139 of 2000 and Writ Petition No. 4627 of 2000, which contain such challenge, are hereby disposed of without any orders on that point.
31. So far as Writ Petition No. 68 of 2001 and W.P. No. 5139 of 2000 are concerned, the order dated 29-12-2000 is hereby quashed and set aside and the respondents are hereby directed to include the names of the members in the voters list, the lists of which are submitted to the Court with title (i) List of persons enrolled as members by Bank but not completing two years upto 15-2-2001, Constituency Bhusawal City; (2) List of persons enrolled as members by Bank but not completing two years upto 15-2-2001, Constituency Bhusawal City; (2) List of persons enrolled as members by Bank but not completing two years upto 15-2-2001 – Constituency Bhusawal, Bodwad and Muktai Nagar Taluka and (3) List of persons enrolled as members by Bank but not completing two years upto 15-2-2001 – Constituency Other Taluka.
32. So far as Writ Petition No. 4675 of 2000 is concerned, the letter dated 14-10-2000 at Exh. “N” is quashed and set aside and it is hereby directed that the list of members of the Karkhana as on the date of the coming into force the amendment to Section 27(3) and (3-A) of the Maharashtra Co-operative Societies Act, 1960 i.e. 23-8-2000, be prepared and submitted to the respondents so as to proceed with the election. The respondents are directed to commence the election process as early as possible.
33. As the elections are over, Writ Petition No. 86 of 2001 and Writ Petition No. 4627 of 2000 have become infructuous. They are disposed of accordingly. Parties are entitled and are at liberty to go into the Election Petition.
34. In view above directions, Rule accordingly in all the petitions.
35. At this stage, Mr. P.G. Deshmukh, learned Counsel submitted that so far as the order pertains to the Bhusawal Bank i.e. Writ Petition No. 5139 of 2000, it may be stayed for a period of six weeks. The finalisation of the voters list was stayed by this Court. Under these circumstances, we heard Mr. Hon, learned Counsel. He strenuously opposed the request and tried to submit that as the term of the managing committee is coming to an end by 15th February, 2001, there is every likelihood that an Administrator may be appointed. The grievance made by Mr. Hon, learned Counsel is a subject matter of a separate writ petition, and therefore, we need not go into that, at this stage. What we have noticed is that this Court has stayed the publication of voters list till today by order dated 1-1-2001, and therefore, we are inclined to extend the same stay for a period of three weeks from today. Therefore, the order passed on C.A. St. No. 1 of 2001 in Writ Petition No. 5139 of 2000, on 1-1-2001, shall continue to operate for a period of three weeks from today. In respect of the grievance of Administrator being appointed, liberty to file separate petition.