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Judgment
B.P. Dharmadhikari, J.
Looking to the nature of controversy, we issue Rule and make it returnable forthwith. Heard finally Shri M.V. Samarth, learned counsel for the
petitioners, Ms. N.P. Mehta. learned AGP for respondent Nos. 1 to 5 & 8. Nobody appears for respondent Nos. 6 & 7.
The proposed intervenor has taken out Civil Application No. 1372 of 2017 for intervention. Accordingly, we have heard Shri I.N. Choudhari,
learned counsel also in support of defence raised by the State Government.
Shri Samarth, learned counsel for the petitioner seeks a direction to hold elections of respondent Nos. 6, 7 & 8 â€" Adiwasi Jungle Kamgar
Sahakari Society, as per provisions contained in Section 73ÂB of the Maharashtra CoÂoperative Societies Act, 1960 (hereinafter referred to as the
Act). He points out that respondent Nos. 1 to 5 are not permitting any NonÂtribal into the Managing Committee because of communication dated
05.01.1979. He, therefore, seeks an order of this Court for quashing of communication and for directing the respondents to proceed as per law.
The learned AGP and Shri Choudhari, learned counsel have invited our attention to explanation (a) at the end of Section 73ÂB of the Act.Â
According to them, a general or special order issued by the State Government under old provisions of Section 73B continues to hold the field and
hence challenge in petition is without any merit. Our attention is also drawn to Section 73ÂB of the Act prevailing when it was added to statute
book and after 1984 Amendment. The learned AGP has for convenience, read out relevant paragraphs from the Division Bench judgment in the
case of Deepak Shriram Tirke vs. State of Maharashtra & Ors., reported at 2004 (1) Mh. L.J. 444.
The only question before this Court is whether the communication dated 05.01.1979 which is relied upon by the respondents to justify 100%
reservation of seats of Managing Committees of Respondent Nos. 5 to 7 â€" Societies, is saved by Section 73ÂB as amended in 1984 or thereafter.
Before proceeding further, it is at this stage not in dispute that tenure of elected body of respondent No. 8 is already over and presently it is under
Administrator, who is the Assistant Registrar, an officer of the State Government.
The provisions of Section 73ÂB when added, allowed the State Government the power to select society or class of societies and to subject them to
operation of Section 73ÂB. Â For that, the State Government has been empowered to issue a general or special order. When in 1983 Amendment,
Section 73ÂB came to be amended, though the mode and manner of providing reservation underwent change, the power with the State Government
continued. Even existing Section 73ÂB gives State Government that power. Thus, societies to be subjected to Section 73ÂB of the Act can be
specified by the State Government by issuing a general or special order.
A general order will apply on uniform basis and, therefore, in case of more than one society. A Special order may also apply accordingly but it
can, in a given case, be issued for a single case also. But then the power is to be exercised by the State Government and the order issued must be
known to all. In other words, it must be published and hence in Official Gazette.
Here, the communication at Annexure (I) which is impugned before this Court shows that it is dated 05.01.1979. It is signed by the Desk Officer
for Commissioner for Cooperation and the Registrar of the Cooperative Societies. Its copies are given to various authorities functioning under the
Maharashtra Cooperative Societies Act. It is addressed to the District Deputy Registrar, Cooperative Societies (ALL). It is obvious that this is
not a general or special order which can be coÂrelated with the exercise of powers under Section 73ÂB(1) supra. It is a communication of some
decision by an officer of the Cooperative Department to the officers working at District level.
It is, therefore, obvious that it is not saved by explanation (1) at the end of Section 73ÂB at all. This communication cannot emanate under
Section 73ÂB(1) of the Act. The respondents, therefore, can support reservation in terms of Section 73ÂB of the Act when it is in consonance with
General or Special order issued under that provision by the State Government. The respondents have not pointed out any general or special order
which permits only Scheduled Tribe office bearers in Managing Committee of respondent Nos. 5 to 7. The reliance upon communication dated
05.01.1979 for this purpose is, therefore, misconceived.
The provisions of Section 73ÂB(1) of the Act, therefore, have to prevail and the respondents have to arrange for holding elections of Respondent
Nos. 5 to 7 whenever the same are due, in accordance with the said provisions. There cannot be 100% reservation on Managing Committees of
these Societies for Scheduled Tribes, in the absence of a General of Special order.
Accordingly, we quash and set aside the communication at Annexure (I) and direct Respondent Nos. 1 to 4 to proceed further to hold elections of
Respondent Nos. 5 to 7 as observed above, whenever those elections are scheduled. It is open to the Societies to consider the need of amendment
to their Byelaws to bring it in consonance with the provisions of Section 73ÂB of the Cooperative Societies Act.
Writ Petition is accordingly allowed and disposed of.
However, there shall be no order as to costs.