{"id":178059,"date":"1997-01-17T00:00:00","date_gmt":"1997-01-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-anr-etc-vs-c-o-d-chheoki-employees-on-17-january-1997"},"modified":"2017-12-07T14:15:55","modified_gmt":"2017-12-07T08:45:55","slug":"state-of-u-p-anr-etc-vs-c-o-d-chheoki-employees-on-17-january-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-anr-etc-vs-c-o-d-chheoki-employees-on-17-january-1997","title":{"rendered":"State Of U.P.. & Anr. Etc vs C.O.D. Chheoki Employees’ … on 17 January, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P.. & Anr. Etc vs C.O.D. Chheoki Employees’ … on 17 January, 1997<\/div>\n
Bench: K. Ramaswamy, S. Saghir Ahmad<\/div>\n
           PETITIONER:\nSTATE OF U.P.. & ANR. ETC.\n\n\tVs.\n\nRESPONDENT:\nC.O.D. CHHEOKI EMPLOYEES' CO-OP.SOCIETY LTD. & ORS. ETC.\n\nDATE OF JUDGMENT:\t17\/01\/1997\n\nBENCH:\nK. RAMASWAMY, S. SAGHIR AHMAD\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t\t    WITH
\n\t\tCIVIL APPEAL NO. 605 OF 1997
\n\t (Arising out of SLP (C) No.12379 of 1995)
\n\t\t\t O R D E R
\n     Impleadment and Intervention allowed.
\n     Leave granted.\n<\/p>\n
     We have heard learned counsel for the parties.
\n     These appeals  raise an  interesting questions  of\t law
\nrelating to  the validity of the Act and the Rules providing
\nreservation for\t or nomination\tof weaker  sections into the
\nCo-operative  Societies\t  registered  under   the  U.P.\t Co-
\noperative Societies Act, 1965 (for short, the `Act’) and the
\nU.P. Co-operative  Societies Rules,  1968  (for\t short,\t the
\nRules `Rules’), as amended from time to time.\n<\/p>\n
     The question is: whether the U.P. Legislature has power
\nto make\t the law  to so\t amend the  Act and  the Rules as to
\nprovide for  reservation to  the weaker\t sections? The\tHigh
\nCourt declared\tSection\t 130(2)(xii)  and  (xii-A)  and\t the
\nprovisos and  the explanation to sub-rule 393-A, Rule 393-B,
\nclause (d)  of sub-rule (4) and part of sub-rules (6) to (8)
\nof Rules 440, so far as relating to reservation of seats for
\nweaker-sections, sub-rule  (3) of  Rule 444-A and clause (i)
\nof sub-rule  (5) of Rule 453 as ultra vires the Constitution
\nand accordingly\t quashed  them.\t Calling  in  question\tthis
\njudgment of the High Court of Allahabad dated March 10, 1995
\nin CMWP\t Nos.40006 and 40121 of 1994, these appeal have come
\nto be filed.\n<\/p>\n
     Due  to   absence\tof   representation  of\t  democratic
\ncharacter in the management of the co-operative societies on
\nthe basis  of election\tby the\tgeneral body of the society,
\nthe members of the weaker sections, namely, Scheduled Castes
\nand Scheduled Tribes women and other backward classes do not
\nfind  place.   Consequently,   the   Government\t  introduced
\namendment to  the Act.\tBy adoption  of\t the  definition  of
\n“Other Backward\t Classes” contained  in U.P. Public Services
\nReservation for\t Scheduled Castes  and Scheduled  Tribes and
\nOther backward\tClasses Act,  1994, brought  Other  Backward
\nClasses within\tthe ambit of weaker sections and made all of
\nthem members  of the  Committee of the Management of the Co-
\noperative Society  registered under. The Act so as to enable
\nthem to be elected or nominated as members. Section 4 of the
\nAct prescribes\tthe guidelines in the matter of formation of
\nthe Co-operative Societies and reads as under:\n<\/p>\n
     “4.  Societies   which    may    be
\n     registered\t  –   Subject\tto   the
\n     provisions of  this Act,  a society
\n     which  has\t  as  its   object   the
\n     promotion of  the economic interest
\n     of its  members in\t accordance with
\n     co-operative   principles\t  or   a
\n     society established with the object
\n     of facilitating  the operations  of
\n     such a  society, may  be registered
\n     under this Act.\n<\/p>\n
     EXPLANATION     -\t    Co-operative\n     principles shall\n     (a)  advancement\t of\teconomic\n     interest\tof    the   members   in\n     accordance\t with\tpublic\t morals,\n<\/pre>\n
     decency and  the relevant directive
\n     principles\t   of\t State\t  Policy
\n     enunciated in  the Constitution  of
\n     India;\n<\/p>\n
     (b)  regulation and  restriction of
\n     profit notice;\n<\/p>\n
     (c)  promotion  of\t thrift,  mutual
\n     aid and self-help;\n<\/p>\n
     (d)  voluntary membership; and\n<\/p>\n
     (e)  democratic constitution of the
\n     society.”\n<\/p>\n
     Section 29\t of the\t Act envisages\tthe constitution  of
\nCommittee of Management. Sub-section (1) reads as under:\n<\/p>\n
     ’29(1)    The Management  of every,
\n     co-operative society  shall vest in
\n     a\t  Committee\tof    Management
\n     constituted in accordance with this
\n     Act, the  rules and  the  bye-laws,
\n     which shall  exercise  such  powers
\n     and perform  such duties  as may be
\n     conferred or  imposed by  this Act,
\n     the rules and the bye-laws.”\n<\/p>\n
\t  (emphasis supplied)
\n     Other sub-sections\t are not  relevant;  hence  omitted.
\nSection 30(1)  to (4) deal with election of the Chairman and
\nVice-Chairman of  the Society.\tSection 130(1) provides that
\nthe  State   Government\t may  make  Rules.  Sub-section\t (2)
\npostulates that, in particular, and without prejudice to the
\ngenerality of  the power under sub-section (1), the rules to
\nbe made under this section may provide for all or any of the
\nmatters enumerated therein. In pursuance thereof, Rules came
\nto be amended. Clauses (xii) and (xii-A) read as under:\n<\/p>\n
     “(xii)    the   election\tof   the
\n     members  and   Chairman  and  Vice-\n<\/p>\n
     Chairman  of   the\t  Committee   of
\n     Management\t  of\ta   co-operative
\n     society, including\t delimitation of
\n     constituencies,   reservation    of
\n     seats   for   women   and\t members
\n     belonging\t to    weaker\tsections
\n     settlement\t of  election  disputes,
\n     and levy  of fees in respect of any
\n     such matter;\n<\/p>\n
     (xii-A) the nomination of women and
\n     members   belonging    to\t  weaker
\n     sections  in   the\t  committee   of
\n     management\t  of\ta   co-operative
\n     society.”\n<\/p>\n
     These amendments  were brought  on statue\tby Amendment
\nAct 17 of 1977. Rule 393 (1) provides as under:\n<\/p>\n
     “Section 393(1)  :\t A  co-operative
\n     society may have as many persons on
\n     its committee  of Management as may
\n     e provided\t in its bye-laws subject
\n     to a  maximum of  fifteen\tpersons.
\n     Any   other   committee   or   sub-
\n     committee of  the society\tshall be
\n     smaller  than   its  Committee   of
\n     Management\t and  in  no  case  such
\n     committee\tor  sub-committee  shall
\n     consist of more than seven members;
\n     Provided that  in the  Committee of
\n     Management\t of  every  co-operative
\n     society  three   seats   shall   be
\n     reserved  of  which  one  shall  be
\n     reserved for  Scheduled  Castes  or
\n     Scheduled Tribes,\tone for Backward
\n     Classes of\t citizens  and\tone  for
\n     women:\n<\/p><\/blockquote>\n
     Provided further  that in\tcase  of
\n     Uttar Pradesh Co-operative Consumer
\n     Federation,  Central   and\t Primary
\n     Consumer\tCo-operative   Societies
\n     there seats  shall be  reserved for
\n     women and one for persons belonging
\n     to Scheduled  Castes  or  Scheduled
\n     Tribes  or\t  Backward  Classes   of
\n     citizens.\n<\/p><\/blockquote>\n
     EXPLANATION  –  In\t this  rule  the
\n     expression\t “backward   classes  of
\n     citizens” shall  have  the\t meaning
\n     assigned to  it in\t clause\t (b)  of
\n     Section  2\t of  the  Uttar\t Pradesh
\n     Public  Service   (Reservation   of
\n     Scheduled Castes,\tTribes and other
\n     Backward Classes) Act, 1994.
\n     (2)  Where a  co-operative\t society
\n     referred to in sub-rule (1)   for
\n     any reasons  whatsoever,  fails  to
\n     elect   on\t   the\t Committee    of
\n     Management such  number of\t persons
\n     for whom  seats are reserved or the
\n     vacancy occurs the deficiency shall
\n     be made  good or filed, as the case
\n     may be,  by the State Government by
\n     nominating\t persons   belonging  to
\n     such  class  on  the  Committee  of
\n     Management\t  of\tsuch\tsociety.\n<\/p><\/blockquote>\n
     Expression\t    “weaker\tsection”<\/p>\n
     referred to  in these  rules  shall
\n     mean   a\t person\t  belonging   to
\n     Scheduled Castes, Scheduled Tribes,
\n     women  and\t  Backward  Classes   of
\n     citizens referred to
\nin the explanation of sub-rule (1).”\n<\/p>\n
     The Preamble  of the  Constitution provides  for socio-
\neconomic and  political justice\t to all citizens and dignity
\nof person,  with equality  of  status  and  of\topportunity.
\nArticle 46 of the Constitution enjoins that “the State shall
\npromote with  special care,  the economic  interest  of\t the
\nweaker sections\t of the\t people”. The object of Section 4 of
\nthe Act\t paves way  to promote\tthe  economic  interest\t and
\nstatus of  the members of the society in accordance with the
\nco-operative principles to facilitate opportunity to augment
\nthe economic  improvement of  the members  of the society by
\nco-operative  principles   by\tproviding   facilities\t and
\nopportunities. The  advancement of  economic improvement  is
\none of\tthe rights enshrined under the constitution. Section
\n4,  therefore,\tintends\t to  effectuate\t the  constitutional
\nobjective  in\taccordance  with   co-operative\t principles,
\nmorality, decency  and the relevant directive principles and
\nthe State  Policy enunciated  in the  Preamble,\t Fundamental
\nRights and  Directive Principles  of the  State\t Policy,  by
\noperation of  clause (a) of Explanation of Section 4, clause\n<\/p>\n
(c) envisages  representation of all sections of the society
\nin a  democratic set up so that they all get the opportunity
\nto avail promotion of their economic interests in accordance
\nwith co-operative principles by being members of the society
\nestablished and\t registered under the Act, rules or bye-laws
\nor  by\t being\telected\t  to  the  management  thereof\twhen
\nrepresentation\tin   the  management  of  the  Committee  by
\nelectoral process  of the weaker sections is not achieved on
\naccount of  short fall in their nomination to the Committee.
\nIs one\tof the principal programmes and the policy under the
\nAct. Clause  24 and  (25) of  Article 366  define “Scheduled
\nCastes” and  “Scheduled Tribes”\t and Articles  341  and\t 342
\nenvisage issue\tof presidential\t notification specifying for
\neach State the list of Scheduled Castes and Scheduled Tribes
\nrespectively. As  far as  women are  concerned, there  is no
\nneed for  specification.  The  Other  Backward\tClasses\t are
\nidentified  as\t those\tspecified  in  the  Public  Services
\nReservation Act,  1994. The  application of this Act is only
\nfor the\t purpose of identification of other Backward Classes
\nand no\tmore. Under  the Act,  all of them constitute weaker
\nsections for  the  purpose  of\tthe  representation  in\t the
\nmanagement of  the  Committee  of  the\tSociety.  The  rules
\nprovide for the principles for election or nomination.\n<\/p>\n
     Rules 393-A and 393-B of the Rules read as under:
\n     “Notwithstanding anything contained
\n     in these  rules or\t the bye-laws of
\n     the society  but  subject\tto  Rule
\n     453, if the Committee of Management
\n     of a  co-operative society referred
\n     to in  the proviso\t to sub-rule (1)
\n     of\t Rule\t393,  on   the\tdate  of
\n     commencement of  this rule does not
\n     have  as\tmany  persons\tas   are
\n     referred in  the above  sub-rule of
\n     weaker sections  or women,\t as  the
\n     case may  be, the State Government
\n     shall nominate  on the Committee of
\n     Management\t of  such  societies  as
\n     many persons as may be necessary to
\n     provide   representation\tto   the
\n     extent  specified\t in   the   said
\n     proviso to\t sub-rule  (1)\tof  Rule
\n     393, and  upon  the  nomination  so
\n     made, the\tCommittee of  Management
\n     of\t the   society\tconcerned  shall
\n     retire  the   required  number   of
\n     persons by\t draw  of  lots\t by  the
\n     authority of  the Registrar,  so as
\n     to accommodate such nominees on the
\n     Committee of Management.\n<\/p>\n
     393-B.  Where   the  term\t of  the
\n     elected members of the Committee of
\n     Management of such society does not
\n     have  such\t number\t of  persons  as
\n     provided in the aforesaid rules the
\n     State\t Government\t  shall,
\n     notwithstanding anything  contained
\n     in the  bye-laws of  such\tsociety,
\n     nominate  on   the\t  Committee   of
\n     Management thereof\t such number  of
\n     persons as\t may  be  necessary  for
\n     providing\trepresentation\tto  such
\n     person to\tthe extend  specified in
\n     the above\treferred rule and on the
\n     nomination\t being\t so  made,   the
\n     Committee\tof   Management\t of  the
\n     concerned society\tshall retire the
\n     required number  of persons by draw
\n     of lots,  so as to accommodate such
\n     nominees.”\n<\/p>\n
Rule 440 sub-rule (1)(4)(d) reads as under:\n<\/p>\n
     “(4) For  purpose\tof  election  of
\n     members of\t Committee of Management
\n     of\t a   co-operative  society,  the
\n     Registrar\tshall,\t notwithstanding
\n     anything contained\t in the bye-laws
\n     of the Society, before the issue of
\n     notice under  sub-rule (2)\t of Rule
\n     441 for  election of a co-operative
\n     society or,  as the case may be, of
\n     a class  of co-operative  societies
\n     determine provisionally –\n<\/p><\/blockquote>\n
     (a) …\n<\/p><\/blockquote>\n
     (b) …\n<\/p><\/blockquote>\n
     (c) …\n<\/p><\/blockquote>\n
     (d) the  number of\t seats\treserved
\n     for weaker section.”\n<\/p><\/blockquote>\n
Rule 444-A(3) reads as under:\n<\/p>\n
     “The Registrar  or\t the  authorised
\n     officer shall,  under provisions of
\n     sub-rule (6)  of Rule  440, reserve
\n     constituencies\/areas   for\t  weaker
\n     section and  such reservation shall
\n     be made  to the extent of the seats
\n     reserved  by   rotation  in   Hindi
\n     alphabetical order\t of the names of
\n     constituencies\/areas   from   which
\n     members   of   the\t  Committee   of
\n     Management area to be elected.”<\/p><\/blockquote>\n
     Rule  453(1)(h)   provides\t that  no  person  shall  be
\neligible to  be or  to continue as a member of the Committee
\nof Management  of any  co-operative society,  if he is not a
\nmember of the General Body thereof.\n<\/p>\n
     These rules  demarcate the\t constituencies and  provide
\nfor their  rotation,  notwithstanding  the  absence  of\t the
\nprovisions  for\t  election  of\tweaker\tsections  so  as  to
\neffectuate the\tobject of  Section 29(1)  read with  Section
\n130(2)(xii) and\t (xii-a). A  conjoint and harmonious reading
\nof these  provisions would,  thus, clearly indicate that the
\nManagement of  every co-operative Society whose object is in
\nconformity with\t Section 4  of the Act, shall be vested in a
\nCommittee of  management constituted in accordance with this
\nAct, the  Rules and  the bye-laws  with\t elective  component
\ninclusive of  weaker sections. In its absence, by nomination
\nof them. Section 130(2) (xii) and (xiii-A) states that rules
\nto be  made may\t provide for  election of  the members,\t the
\nChairman and Vice-Chairman of the Committee of management of
\na co-operative\tSociety including  reservation for women and
\nOther Backward\tClasses. Therefore, the Rules have been made
\nto effectuate  the purpose  of\tthe  Act,  namely,  for\t the
\nelection of  the Committee  of the  Management and under the
\ndemocratic process  of election\t as envisages  under the Act
\nand the\t Rules, they get elected. In case the members of the
\nweaker sections, namely, Scheduled Castes, Scheduled Tribes,
\nother Backward\tClasses\t and  women  are  not  elected,\t the
\nGovernment have\t been given  power to  nominate the  members
\nbelonging to  weaker sections  and the women to an extent of
\nthree seats  as envisages  thereunder, namely, one Scheduled
\nCaste, one  Backward Class  and one  women in  each  of\t the
\nCommittee  of  the  Management\tof  the\t every\tco-operative
\nsociety..pa
\n     The question  is: whether\tsuch a power is violative of
\nArticle\t  19(1)(c)    of   the\t Constitution?\t Shri\tRaju
\nRamachandran, learned  senior counsel  for the\trespondents,
\ncontends that  the Constitution has conferred right on every
\ncitizen to  form a society or to be its member. Formation of
\nthe Society  includes therein  inviolability of\t incorporate
\ncharacter or enrolment of any member who fulfils the objects
\nof the\tsociety as  per the  bye-laws. No  outsider would be
\ninterposed or  thrust against  his\/her wishes.\tNo outsider,
\ntherefore, could  be brought  or nominated  as member of the
\nmanagement Committee  without being  a member of the General
\nBody. In  Daman Singh  & Ors.  vs. State  of Punjab  &\tOrs.<\/a>
\n[(1985) 2  SCC 670  at 681], the Constitution Bench had held
\nthat the  creation, the\t constitution and  the management of
\nthe  Society   is  a  creature\tof  the\t statute.  They\t are
\ncontrolled by  the statute and so, there can be no objection
\nto statutory  interference with\t their\tcomposition  on\t the
\nground of  contravention of  the individual right to freedom
\nto form association. In para 11, this Court held that once a
\nperson becomes\ta member of a Co-operative Society, he loses
\nhis individuality  qua the Society and he has no independent
\nrights except those given to him by the statute and the bye-
\nlaws. He  must act  and speak through the Society or rather,
\nthe Society  alone can\tact and\t speak for him qua rights or
\nduties of  the Society\tas a  body. The question whether the
\nLegislature  has  power\t to  enact  the\t law  providing\t for
\nnomination of the members of the Scheduled Castes, Scheduled
\nTribes and  women in the matter of election to the Committee
\nof to  the Co-operative\t Societies, was\t considered by\tthis
\nCourt in  Babaji Kondaji  Garad etc.  vs. Nasik Merchants C-
\noperative Bank\tLtd., Nasik  & Ors.  [(1984) 2\tSCC 50].  In
\nparagraphs 9 and 12, this Court stated as under:\n<\/p>\n
     “The Act was enacted in 1960 and it
\n     repealed  the  Bombay  Co-operative
\n     Societies\tAct,  1925.  Section  73
\n     provides for  the\tvesting\t of  the
\n     management of  every society  in  a
\n     committee\tto   be\t constituted  in
\n     accordance with  the Act, the rules
\n     and   the\t  bye-laws.    At    the
\n     commencement of  the Act, there was
\n     no\t provision  for\t reservation  of
\n     seats in  favour of  the members of
\n     the  Scheduled   Castes   and   the
\n     Scheduled\tTribes\tand  the  weaker
\n     section of the members. Section 73-
\n     B making observation obligatory was
\n     introduced in   the Act by Amending
\n     Act  27   of  1969.  Why  was  this
\n     specific\tamendment    made?   The
\n     working  of   the\tAct   must  have
\n     disclosed a  sorry state of affairs
\n     that even\tthough the  co-operative
\n     movement was expanding by leaps and
\n     bounds,   the    members\tof   the
\n     Scheduled\tCastes\t and   Scheduled
\n     Tribes or the weaker section of the
\n     members  of  the  society\twas  not
\n     represented in  the  committee  and
\n     had no  opportunity to  participate
\n     in\t the  decision\tmaking\tprocess,
\n     laying  down   broad  policies  and
\n     management of  the society. Article
\n     43 of the Constitution set the goal
\n     that the  State shall  endeavour to
\n     promote cottage  industries  on  an
\n     individual or co-operative basis in
\n     rural areas. In our onward march of
\n     economic  independence,  India  was
\n     destined  to   be\ta   co-operative
\n     commonwealth. Since activities were
\n     diversified, more especially in the
\n     rural areas.  Every activity  of  a
\n     person devoted  to agricultural  in
\n     the  rural\t  area\tis  considerably
\n     influenced\t by   the   co-operative
\n     movement,\t   such\t     as\t    seed
\n     distribution, credit,  disposal  of
\n     agricultural   produce   etc.   The
\n     member of\tthe Scheduled Castes and
\n     Scheduled Tribes  predominantly  in
\n     rural   areas    did   not\t  remain
\n     unaffected by  the gigantic  stride
\n     that  the\t co-operative\tmovement
\n     took.  They   were\t  directly   and
\n     substantially affected  by\t it.  In
\n     order to  avoid that  those who are
\n     affected by  the movement\tin their
\n     vital day\tto day existence enjoy a
\n     second class status by being denied
\n     the opportunity  to be  represented
\n     in\t the   management  council   and
\n     decision making bodies, a provision
\n     like Section 73-B was introduced to
\n     ensure   representation   of   such
\n     persons  who   in\tthe  absence  of
\n     reservation may  find it  difficult
\n     to be  elected to\tthe Committee in
\n     which   the    entire   power    of
\n     management\t  vests.    Absence   of
\n     representation\tcoupled\t    with
\n     subjection to  the dictates  of the
\n     society  would   be  antithesis  of
\n     democratic\t process  reducing  such
\n     persons to\t serfdom. A co-operative
\n     society is\t to  be\t governed  by  a
\n     committee\telected\t  by  democratic
\n     process.  This  democratic\t process
\n     must   permeate   in   filling   in
\n     reserved\tseats\t otherwise   the
\n     committee\t would\t not   enjoy   a
\n     representative character.\tOne  can
\n     draw  light   from\t the   provision
\n     contained\tin   Part  XVI\t of  the
\n     Constitution     and     especially
\n     Articles 330  and 332 which provide
\n     for reservation  of  seats\t in  the
\n     House  of\t People\t  and\tin   the
\n     Legislative Assembly of every State
\n     for the  Scheduled Castes\tand  the
\n     Scheduled\t  Tribes.    The    felt
\n     necessities of  the  time\tand  the
\n     historical\t perspective   of  class
\n     domination\t    led\t     to\t     the
\n     constitutional\tguarantee     of
\n     reservation so that India can truly
\n     be a  sovereign  socialist\t secular
\n     democratic republic.  A republic is
\n     made up  of men  and  institutions.
\n     That is why democratic institutions
\n     have to  be set up by providing for
\n     election and to make the democratic
\n     institutions truly\t representative,
\n     reservation of  seats for those who
\n     on account\t of their  backwardness,
\n     exploitation and  unjust  treatment
\n     both  social  and\teconomic  cannot
\n     obtain  representation  because  of
\n     the class\tdomination. This  is the
\n     genesis of\t reservation. Therefore,
\n     any    provision\t  making     for
\n     reservation   must\t  receive   such
\n     construction as  would advance  the
\n     purpose and  intendment  underlying
\n     the  provision  making  reservation
\n     and not  thwart it.  In the  part a
\n     method of\tconstruction was used to
\n     extend a  remedial\t statute  called
\n     proceeding upon  `the equity of the
\n     statute’. In Hay v. Lord provost of
\n     Perth [(1863)  4 Macq. HL (SC) 535,
\n     544] Lord\tWestbury  observed  that
\n     the mode  of construction\tknown as
\n     `the equity  of  the  statute’  was
\n     “very common  with\t regard\t to  our
\n     earlier\tstatutes,    and    very
\n     consistent with  the principle  and
\n     manner according  to which\t Acts of
\n     parliament\t were\tat   that   time
\n     framed”. Undoubtedly, nowadays this
\n     mode  of  construction  has  fallen
\n     into  disuse.   Even   though   the
\n     expression\t `the\tequity\tof   the
\n     statute’ has fallen into disuse, it
\n     is\t still\t in  vogue  in\tsomewhat
\n     similar  form  in\tthat  if  it  is
\n     manifest  that  the  principles  of
\n     justice  require  something  to  be
\n     done   which   is\t not   expressly
\n     provided\tfor   in   an\tAct   of
\n     Parliament, a court of justice will
\n     take into\tconsideration the spirit
\n     and meaning  of the  Act apart from
\n     the words. In this context, one can
\n     recall the\t words of Jessel M.R. in
\n     Re Bethlem\t Hospital [(1875)  LR 19
\n     Eq. 457],\tthat `the  equity of the
\n     statute’ may  as well as mean “such
\n     a\tthing\tas  construing\t an  Act
\n     according to  its\tintent,\t thought
\n     not  according   to   its\t words”.
\n     Alternatively,  one  can  bring  in
\n     Heydon’s test more often noticed by
\n     this Court\t that in order to arrive
\n     at true  intendment of  a\tstatute,
\n     the court should pose to itself the
\n     questions\t:   (1)\t what\twas  the
\n     situation prior  to  the  provision
\n     under   construction,    (2)   what
\n     mischief  or   defect  was\t noticed
\n     before introducing\t the  provision,
\n     (3) whether it was remedial and (4)
\n     the reason for the remedy. Applying
\n     this test,\t the same  result  would
\n     follow inasmuch  as looking  to the
\n     position\tand    the   plight   of
\n     Scheduled\tCastes\t and   Scheduled
\n     Tribes and\t the weaker  section  of
\n     the members  of the society, though
\n     they  would   be  subject\t to  the
\n     dictate of\t the society they had no
\n     voice in  the  managerial\tcouncils
\n     and that  to raise\t the stature and
\n     status of\tsuch persons  so  as  to
\n     bring  them   on  the   footing  of
\n     equality with other segments of the
\n     society, reservation  was\tprovided
\n     in the  absence of\t which those  in
\n     whose favour  reservation was  made
\n     could  not\t  get  elected\t to  the
\n     decision\tmaking\t bodies.   While
\n     ascertaining  the\t true  canon  of
\n     construction applicable  to Section
\n     73-B, these aspects must start into
\n     our face.\n<\/p><\/blockquote>\n
     When  statute  requires  a\t certain
\n     thing  to\tbe  done  in  a\t certain
\n     manner, it\t can  be  done\tin  that
\n     manner  alone   unless  a\tcontrary
\n     indication is  to be  found in  the
\n     statute. If  the  Legislature  uses
\n     the expression  `if no such persons
\n     are   elected’    it    indubitably
\n     suggests\tthat\tprimarily    the
\n     reserved seats  are to be filled in
\n     by election.  Failing the election,
\n     one can  resort to\t appointment  or
\n     co-option. The  chronology\t of  the
\n     methodology by  which seats  are to
\n     be filled\tin as set out in Section
\n     73-B    clearly\tmanifests    the
\n     legislative  intention.  The  first
\n     and the  foremost pride of place is
\n     accorded to  election, it\tought to
\n     be\t so   because  a  representative
\n     institution  ordinarily   must   be
\n     democratically\telected.     The
\n     section, therefore,  speaks `if  no
\n     such  persons  are\t elected’  which
\n     would  mean  that\tthe  authorities
\n     charged  with   a\tduty   to   hold
\n     election must  proceed  to\t arrange
\n     for  holding   the\t  election.   If
\n     election\tis   held   giving   out
\n     information   that\t  there\t     are
\n     reserved seats  and no candidate is
\n     forthcoming  to   contest\tfor  the
\n     reserved seats,  the Legislature in
\n     its wisdom\t provided that the seats
\n     shall to  remain vacant  but can be
\n     filled in by two subsidiary methods
\n     such as  appointment  or  co-option
\n     which  cannot  be\tput  on\t par  or
\n     equated with  election which  is  a
\n     universally  recognised  method  by
\n     which  representative  institutions
\n     are set up. Therefore, the language
\n     and   the\t  chronology   of    the
\n     methodology of  filling in reserved
\n     seats  employed   in  Section  73-B
\n     provide  a\t  clue\tto  its\t correct
\n     construction and there should be no
\n     doubt  that   opportunity\tmust  be
\n     provided for  filing  in  seats  by
\n     election, it  is the failure of the
\n     election machinery\t to fill  in the
\n     seats  which   would   enable   the
\n     concerned authority  to fill in the
\n     seats by  appointment or co-option.
\n     The condition  precedent to filling
\n     in reserved seats by appointment or
\n     co-option\t is   holding\tof   the
\n     election and  failure to elect such
\n     person  should   permit  resort  to
\n     other methods  of\tfilling\t in  the
\n     reserved seats.”<\/p><\/blockquote>\n
     In the  case  of  Toguru  Sudhakar\t Reddy\t&  Anr.\t vs.
\nGovernment of  A.P. &  Ors. [1993  Supp. (4)  SCC 439], this
\nCourt considered  the power  of the  Government to  nominate
\nwomen to  the Co-operative Societies under Section 31 of the
\nA.P. Co-operative  Societies Act and the validity of the Act
\nand the\t power of  the Government for nomination of them was
\nupheld.\n<\/p>\n
     Thus,  it\tis  settled  law  that\tno  citizen  has  an
\nfundamental right  under Article 19(1)(c) to become a member
\nof a  Co-operative Society.  His right\tis governed  by\t the
\nprovisions of  the statute.  So, the  right to\tbecome or to
\ncontinue being a member of the society is a statutory right.
\nOn fulfilment  of the  qualifications prescribed to become a
\nmember and  for\t being\ta  member  of  the  society  and  on
\nadmission, he  becomes a  member. His  being a member of the
\nsociety is  subject to\tthe operation  of the Act, rules and
\nbye-laws applicable  from time\tto time.  A  member  of\t the
\nSociety has  no independent  right qua the Society and it is
\nthe society  that is  entitled to represent as the corporate
\naggregate. No  individual member  is entitled  to assail the
\nconstitutionality of  the provisions  of the  Act, rules and
\nthe bye-laws  as he  has his  right under the Act, rules and
\nbye-laws and  is subject to its operation. The stream cannot
\nrise higher than the source.\n<\/p>\n
     So, the  society having  been formed is governed by the
\nprovisions of  the Act.\t The individual\t members do not have
\nany fundamental\t right to  the management  of the  Committee
\nexcept in  accordance with  the provisions of the Act, rules
\nand bye-laws.  The management  of the Committee is regulated
\nby Section  29 of  the Act.  The composition thereof is also
\nregulated by  the Act  and has\tto be in accordance with the
\nRules and the bye-laws. The Rules referred to here in before
\nhave to\t be in\tfurtherance of\tand in\tconformity with\t the
\nprovisions contained  in Section 130(2)(xii) and (xii-A) and
\nthe Rules  providing for  reservation in the election of the
\ncommittee or  for nomination  to the Management Committee of
\nthe members  belonging to  the\tweaker\tsections  and  women
\nshould be to effectuate socio-economic and political justice
\nassured\t by   the  Preamble,  Articles\t38  and\t 46  of\t the
\nConstitution.\n<\/p>\n
     Shri Raju\tRamachandran, relying  upon the\t judgment of
\nthis Court in Damyanti Naranga vs. The Union of India & Ors.<\/a>
\n[(1971 3  SCR 840], has contended that in view of the ration
\nlaid down  by this  Court, the Government is devoid of power
\nto make\t law unless any of the restrictions as controlled by
\nclause (4)  of Article\t19 of  the Constitution of India are
\ninfringed. The\tGovernment has\tno  power  to  enact  a\t law
\nincorporating the  reservation\tto  the\t members  of  weaker
\nsections  and  women  thereof.\tWe  find  no  force  in\t the
\ncontention. It\tcould be  seen that  therein, the Government
\nhad enacted  the Sahitya  Sammelan Act\texercising the power
\nunder Entry  63, List  I of  the  Seventh  Schedule  to\t the
\nConstitution. This  Court pointed  out that  the Act did not
\nenvisage  that\t the  Samiti   is  of  national\t importance.
\nTherefor, it  was held\tthat the Parliament had lacked power
\nto enact  the law  incorporating the  society and  inducting
\noutside members against the wishes of the founder members of
\nthe Society registered under the Societies Registration Act.
\nThis Court  also held  that the\t properties belonging to the
\noriginal Society  stood vested\tin the\tSociety incorporated
\nunder  Section\t4  of  the  Act\t without  any  compensation.
\nTherefore,  it\t was  violative\t  of  Article\t31  of\t the
\nConstitution of\t India, as  it stood then. The ratio therein
\nhas no\tapplication to\tthe facts  in  this  case.  He\tthen
\ncontended that\t“Other Backward\t Classes” defined  under the
\nState Public  Services Reservation  Act\t applicable  to\t and
\ncovering the  public services,\tthey are  being inducted  as
\nmembers of the society which are otherwise not eligible and,
\ntherefore, the\tinduction of them by amendment of Rules made
\non 15.7.1994  is unconstitutional.  In support\tthereof,  he
\ncontends that  though Article 15(4) of the Act provides that
\nit  is\t subject  to   Articles\t 15(2)\t and  29(2)  of\t the
\nConstitution, it  does not  envisage that it is also subject
\nto Article  19(1)(c) of\t the  Constitution.  Therefore,\t the
\nreservation   provided\t  to   the    weaker   sections\t  is
\nunconstitutional. We  find no  force in\t the contention. The
\nobject of  Article 15(4)  is  to  lift\tthe  prohibition  of
\ngeneral equality  guaranteed in\t Article 15(2)\tand 29(2) of
\nthe Constitution dealing with the right to admission into an
\neducational institution maintained by the State or receiving
\naid from  the State. Therefore, their object is distinct and
\ndifferent from\tArticle 19(1)(c).  Though  Article  19(1)(c)
\ngives freedom  to form\tassociation, it is controlled by the
\nprovisions of the Act. As held by this Court, once a society
\nhas been  registered under  the Act,  the management  of the
\nsociety through Section 29 and the Rules made thereunder, is
\nregulated by duly elected members. In the democratic set up,
\nall eligible  persons are  entitled to contest the election,
\nas held,  according to\tthe provisions of the Act and Rules.
\nIn the\tabsence of  elected members  belonging to the weaker
\nsections and  women  elected,  nomination  of  them  by\t the
\nGovernment is  the alternative dispensation envisaged as one
\nof the\tpolicies of  the Act.  Therefore, the  Court  cannot
\ninterfere with the policy and declare it is unconstitutional
\nviolating Article 19(1)(c) of the Constitution.\n<\/p>\n
     It is  then contended  that nomination  of the  members
\nbelonging to the waker sections is arbitrary and uncanalised
\nand it is violative of Article 14 of the Constitution. It is
\nseen that  the provisions  of the Act and the relevant Rules
\nprovide necessary  guidelines. The  persons are\t identified.
\nThe bye-laws  prescribe the  eligibility of  the members who
\nwould be  eligible to be nominated as members of the society
\nand the\t disqualifications have been provided under Rule 393
\nof the Rules. Under those circumstances, these provisions do
\nindicate the  guidelines  under\t the  Act,  If\tany  one  is
\nnominated in derogation of the guidelines provided under the
\nAct and\t rules, that  would be\tan  individual\tcase  to  be
\nconsidered separately  but on  that count alone, the Act and
\nthe Rules cannot be declared to be ultra vires.\n<\/p>\n
     Shri Raju Ramachandran relied upon the judgment of this
\nCourt in  Lalit Narayan\t Mishra of  Economic Development and
\nSocial Change,\tPatna etc.  vs. State  of Bihar\t & Ors. [AIR
\n1988 SC\t 1136] in  support of  his contention.\tBut far from
\nhelping him,  the ratio\t therein also is consistent with the
\nlaw laid down by this Court.\n<\/p>\n
     It is  then contended  by Mr.  S.\tMarkandeya,  learned
\ncounsel for  some  of  the  respondents,  that\tthe  Workers
\nOrdinance Co-operative\tSociety consists  of weaker sections
\nand further  induction of  weaker sections  by nomination or
\nwomen  who   do\t not   become  members\tof  the\t society  is
\nunconstitutional. The  election of  nomination of the weaker
\nsections to  the Committee  of\tManagement  is\tas  per\t the
\nprovisions of  the Act,\t the Rules  and the bye-laws. If any
\nsociety\t consists  solely  of  those  segments\tand  elected
\nCommittee of  Management consists  of them,  the question of
\nnomination to represent them as that segment again would not
\narise. In  the absence of elected members being there in the
\nCommittee, necessarily,\t the Government\t have the  power  to
\nnominate the unfilled membership of the Committee.\n<\/p>\n
     Thus considered, we are of the view that the provisions
\nof the\tAct and\t rules are  consistent with  the policy\t and
\nobject of  the Constitution  and, therefore,  the High Court
\nwas wholly incorrect in declaring the aforesaid provision to
\nbe ultra vires the Constitution.\n<\/p>\n
     The appeals  are accordingly allowed. The writ petition
\nstands dismissed. No costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P.. & Anr. Etc vs C.O.D. Chheoki Employees’ … on 17 January, 1997 Bench: K. Ramaswamy, S. Saghir Ahmad PETITIONER: STATE OF U.P.. & ANR. ETC. Vs. RESPONDENT: C.O.D. CHHEOKI EMPLOYEES’ CO-OP.SOCIETY LTD. & ORS. ETC. DATE OF JUDGMENT: 17\/01\/1997 BENCH: K. RAMASWAMY, S. SAGHIR AHMAD ACT: HEADNOTE: JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-178059","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P.. & Anr. Etc vs C.O.D. 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