@JUDGMENTTAG-ORDER
A.K. Gohil, J.
This judgment shall govern the disposal of both W.A. No. 195/08 and W.A. No. 221/08. In both the Writ Appeals filed u/s 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, arising out of the common order dated 28-3-2008 passed by the learned Writ Court in W.P. No. 1369/08 common question of law is involved.
The brief facts of the case are that one Kalyan Singh filed Writ Petition under Articles 226/227 of the Constitution of India, being aggrieved by the illegal and arbitrary action of the respondents in conducting elections of the District Cooperative Krishi Evam Gramin Vikas Bank, Shivpuri (for short "the Bank"). The contention of the petitioner in the Writ Petition was that while conducting elections of the Bank, the percentage of reservation of delegates is determined to the extent of 90%, which is more than constitutionally permissible percentage of reservation of 50%.
It was further submitted that the aforesaid Bank is having total 8100 individual members, out of which 1900 members belong to Scheduled Caste category, break up of percentage is 23%, 2400 members of Scheduled Tribe category with 29% reservation, 3000 members of Other Backward Classes category with 37% and 800 members of General Category with 10%. The aforesaid members were divided into 173 groups, therefore it was prayed that a reservation beyond 50% is not permissible under the law, as such the election is illegal and be set aside.
Learned Writ Court upheld the submission made by the petitioners and held that the reservation more than 50% in the smaller body as per Section 48 is contrary to the pronouncement of the decision of the Apex Court in the case of
Shri R.D. Jain, Sr. Advocate with Shri M.P. Raghuvanshi, Advocate appearing for appellant in Writ Appeal no. 195/08 and for respondent No. 1 in Writ Appeal No. 221/08, vehemently submitted that under the bye-laws of the Society as well as under the provisions of M.P. Cooperative Societies Act, 1960 (hereinafter shall be referred to as "Act of 1960") there is no provision for providing any reservation for the constitution of smaller body, i.e., the general body of the society, for which delegates shall be elected and those delegates thereafter shall elect the members of the Board of Directors/Committee. It was argued that there is no provision for constituting a smaller body by following principle of reservation, therefore the learned Writ Court has committed illegality in setting aside the elections of the Bank. Per contra Shri Vivek Jain, learned Counsel appearing for respondent No. 1 W.P. No. 195/08 and respondent No. 2 in W.A. No. 221/08 supported the judgment and his contention is that even if there is no provision for reservation for the constitution of smaller body, even then with the help of Section 48-B, Sub-clause (3) read with Rule 43 of the M.P. Co-operative Societies Act, 1960 (for short "the Act of 1960") and M.P. Co-operative Societies Rules, 1962 (for short "the Rules of 1962"), the provisions of reservation are applicable and he heavily placed reliance on the decision of Division Bench in the case of Anand Manohar Tambe (supra).
Having heard the learned Counsel for the parties, we have perused the provisions of the bye-laws of the Bank, Act and Rules regarding the constitution of the smaller body as well as regarding the reservation of the seats in the committee. The relevant provisions of bye-laws of the Bank, Sections 48, 48-B of the Act of I960 are reproduced below:
Section 48. Final authority in society. (1) The final authority in a society shall vest in the general body of members: Provided that the bye-laws of a society may provide for the constitution of a smaller body consisting of delegates elected in accordance with such bye-laws to exercise powers of the general body or as may be specified in the bye-laws of the society.
(2) Subject to Sub-section (1), the management of every society shall vest in a committee constituted in accordance with this Act or rules made thereunder or bye-laws of the society and it shall exercise such powers and perform such duties as may be conferred or imposed respectively by the Act or rules made thereunder or bye-laws of the society. (3) (a) On the Committee of primary society: (i) in which half or more than half the members belong to Scheduled Castes, Scheduled Tribes and Other Backward Classes, not less than half the total number of seats shall be reserved for the members belonging to such castes, tribes and backward classes in such proportion as may be prescribed.
(ii) in which one fourth or more than one fourth, but less than half the members belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes, three seats shall be reserved for the members belonging to such castes, tribes and backward classes of which one seat each shall be reserved for each class. (iii) in which the number of members belonging to Scheduled Castes, Scheduled Tribes, and Other Backward Classes is less than one fourth of total number of members, one seat shall be reserved for a member belonging to such castes, tribes and other backward classes, which has the larger number of members in the society. (iv) which is operating in a Scheduled Area, the number of seats to be reserved for Scheduled Tribes shall bear as nearly as may be the same proportion as members belonging to Scheduled Tribes bear to the total memberships of the society. Explanation: For the purpose of this Clause the Co-operative Land Development Bank shall be deemed to be a primary society. (b) On the Committee of such Central or Apex Society or class of Central or Apex Societies as the State Government may having regard to the total membership of Scheduled Castes, Scheduled Tribes and Other Backward Classes in the Primary Societies affiliated to such Apex or Central Society, by general or special order, direct, such number of seats as may be specified in the order shall be reserved for the members belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes: Provided that the number of seat so reserved shall not exceed two for each category of members:
Provided further that on the Committee of every Central or Apex Society for the Resource class atleast one seat each shall be reserved for the members of Scheduled Castes, Scheduled Tribes and Other Backward Classes.
(c) In the event of society falling to elect requisite number of members or to elect less than such number of members, as is specified in Clauses (a) and (b), the members of the committee shall co-opt the requisite number of members from amongst members of such society eligible for such representation and in the event of the Committee failing to do so Registrar shall nominate the requisite number of members from amongst members of such society eligible for such representation: (5) There shall be a President/Chairman and two Vice-Presidents/Vice-Chairman in a resource society. Out of the two officers of Vice-Presidents/Vice-Chairman- (i) One shall be held by a woman member, and (ii) One shall be held by,-
(a) in case of a resource society operating in a non-scheduled area, by a member belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes, and
(b) in case of a resource society operating in a scheduled area, by any member: Provided that in case of resource society operating in the scheduled areas the President or Chairman shall be elected from amongst the members belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes. Explanation: For the purpose of this section- (i) "Scheduled Caste" means any caste, race or tribe or part of or group within a caste, race or tribe specified as such in relation to the State of Madhya Pradesh under Article 341 of the Constitution of India, (ii) "Scheduled Tribe" means any Tribe, Tribal community or part of or group within a tribe or tribal community specified as such in relation to the State of Madhya Pradesh under Article 342 of the Constitution of India. (5-A) There shall be a President or Chairman and Vice President or Vice Chairman in consumer society of whom one shall be a woman. (6) No person who is individual member in a Central Co-operative Bank shall hold any specified office in the Central or Apex Society. (7) In a resource society, no person who is a non-borrowing member shall be qualified for election as member of the Committee, delegate or representative nor shall he be entitled to vote in any election of the Committee, delegate or representative of the society. Explanation: A non-borrowing member shall be one who never borrowed from such a Bank or a society in which he is a member: Provided that the provisions of this Sub-section shall apply to the society from the date it commences its lending operations:
Provided further that the provisions of this Sub-section shall not apply to the society in so far as its first provisional committee/nominated committee is concerned.
Section 48-B. Representatives and delegates.- (1) Every Committee of society shall at the time of election of Chairman or Vice-Chairman, also elect representative who shall represent it in other society and the representative so elected shall not be withdrawn by the Committee till the next election of the committee. (2) (a) In a society where not less than half of the members belong to Scheduled Castes and Scheduled Tribes, the representative shall be only from amongst the members belonging to such castes or tribes; and (b) In a society where not less than two-third of the members belong to Other Backward Classes, the representative shall be from amongst the members belonging to such classes.
(3) If the bye-laws of a society provide for the constitution of its general body by the elections of the delegates, the society shall reserve seats in the general body for the members belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes in such a manner that the number of seats so reserved for each category shall as far as possible, be in the same proportion in which members of each category, shall bear to the total membership of the society. Rule 43 (3-A) of the "Rules of 1962" is as under: 43. (3-A) In a primary society falling under Sub-clause (i) of Clause (a) of Sub-section (3) of Section 48, not less than half of the total number of seats on the committee shall be reserved for member for members belonging (Scheduled Castes, Scheduled Tribes and Other Backward Classes) in the proportion which the numbers of the said (Castes, Tribes and Classes) bears to the total membership of such society. From bare reading of aforesaid provision, it is clear that so far as the election of the representative and delegates for the constitution of smaller body consisting of delegates elected in accordance with bye-laws and provisions of Sections 48, 48-B(3) is concerned, there is only provision in Section 48-B(3) that if the bye-laws of a society provide for the constitution of its general body by the elections of the delegates, the society shall reserve seats in the general body for the members belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes in such a manner that the number of seats so reserved for each category shall as far as possible, be in the same proportion in which members of each category, shall bear the total membership of the society. According to this provision, the smaller body consisting of delegates shall be constituted by the delegates and the number of delegates shall be decided as per the proportion of the members of each category of the society. In this case what we have found that there is no reservation so far as the election of representation and delegates in smaller body is are concerned. Therefore, if the society has divided the members into 173 groups on the basis of the proportion of the members, then it is clear that society has not committed any illegality in electing or constituting the smaller body. So far as the representation in the Committee is concerned, that is covered by Section 48(3)(a)(i) read with Explanation appended to Sub-clause (3), according to which in a primary society (Bank) not less than half of the total number of seats on the committee shall be reserved for members belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes in the proportion in which the numbers of the said Castes, Tribes and Classes bears to the total membership of such society. Section 48(3)(a) of the Act of 1960 read with Rule 43(3)(a)(i) of the Rules of 1962 makes it clear that in a primary ''society in the matter of appointment of a committee the number of seats of the committee shall not be less than half, they may be more as per the proportion of the members on the basis of castes, tribes and classes. Therefore, it is clear that under these provisions the reservation has been provided under the Act in the Committee not in the constitution of General Body, which is the smaller body. In this case there is no dispute between the parties that the election of the committee has been held according to which there is no reservation which exceeds more than 50% in the matter of constitution of committee and for election of Directors. It is submitted that out of 14 Directors, six have been elected for the reserved class and remaining six have been elected for the unreserved category and two from the women category. Therefore, there is no violation of the provision of reservation so far as the election of the committee is concerned. In the committee reservation has been provided which shall not be less than half the total number of seats in the committee. In this case, in the constitution of committee, there is no dispute about the reservation. It is governed by provision of law. Therefore, we are of the view that since no reservation has been provided for the constitution of smaller body u/s 48 of the Act of 1960, therefore, it cannot be held that there is reservation is more than 90% in the matter of election of representatives and delegates as required u/s 48-B. The delegates have been elected as per the proportion of the number of the members and on this basis, the members have been divided into the groups. Shri Jain, learned Counsel for the respondents vehemently argued and supported the impugned judgment of the learned Single Judge and submitted that the same has been passed on the basis of the directions issued in the case of Anand Manohar Tambe (supra), decided by the Division Bench of this Court. It is admitted by the parties that in the case of Anand Manohar Tambe (supra), the dispute between the parties was about the reservation in the committee not about the reservation of the representatives or delegates in a smaller body, as required u/s 48-B of the Act of 1960. It is true that in the committee there cannot be reservation more than 50%, but there is no provision under the M.P. Co-operative Societies Act about any kind of percentage of reservation in the election of smaller body. Therefore, in view of the aforesaid submissions, these both Writ Appeals are allowed. The judgment passed by the Writ Court is set aside and it is directed that further process of election be completed by the Returning Officer and further action be taken. It is submitted by the parties that the election of the Directors including the office bearers have already been held. Only formality of its declaration and taking over the charge is left which may now be completed. In the result both these appeals are allowed and the stay order granted by this Court is hereby vacated.*** *** *** ***
Section 48-A. *** *** *** ***
