Smt. Yewantabai Patle and Laxman Khobragade vs The District Deputy Registrar, Cooperative Societies, Election Officer, Vividh Karyakari Sewa Sahakari Sahakari Sanstha Maryadit and Vividh Karyakari Sewa Sahakari Sahakari Sanstha Maryadit

B.P. Dharmadhikari, J.—Short question raised by Shri S.S. Ghate, learned Counsel for petitioners in this petition is - Whether because of proviso to Section 73BBB[2] of the Maharashtra Cooperative Societies Act, 1960 the number of seats reserved for women on Board of Directors of respondent No. 3 Society has to be 2 or then because of requirement of explanation to Sub-section [1] thereof, it can be only 1.

Considering the nature of the controversy and by consent of Shri S.S. Ghate, learned Counsel for Petitioners, Shri Kankale, learned A.G.P. for respondent Nos. 1 and 2 and Shri S.Y. Deopujari, learned Counsel for respondent No. 3, the matter is heard finally at the stage of admission by making Rule returnable forthwith.

Reliance is being placed on the judgment of Division Bench of this Court in the case of Saralabai Arjun Bajaj and Ors. v. State of Maharashtra (1993 Mh.L.J. 1127) to urge that provisions of Section 73BBB are mandatory and not providing reservation accordingly on Board of Directors, vitiates the entire election. Attention is invited to the election program as published on 12.02.2010 to show that though total number of Directors in it is 13 and one post is reserved for women, it is not in accordance with Section 73-BBB and two seats need to be reserved for women Directors. It is pointed out that in Bye law No. 9 of respondent No. 3 Society, there exist a provision for 1 woman representative and hence because of the proviso to Sub-section [2] of Section 73BBB the explanation to Sub-section [1] thereof is not attracted.

Shri S.Y. Deopujari, learned Counsel for respondent No. 3 states that respondent No. 3 Society is not interested in the dispute as it is a pure and simple question of law.

Learned A.G.P. on the other hand with reference to the reply affidavit filed on record points out that necessary reservation u/s 73BBB is already exists and hence election program is not vitiated. He further contends that the issue sought to be raised by Shri Ghate, learned Counsel for petitioner is not considered by the judgment of Division Bench in case of Saralabai [supra].

It is apparent that the issue urged by Shri Ghate, learned Counsel for petitioner did not fall for consideration before the Hon�ble Division Bench in the above judgment. The said judgment shows that provisions of Section 73BBB are mandatory.

The reservation for women members on Board of Director is prescribed by Section 73BBB. Sub-section [1] begins with non obstante clause and its Sub-clause [b], which is relevant here states that if the Board of Director consists of 10 or more members, then the reservation for women has to be on two seats. Sub-section [2] specifies that such reservation and seats for women is in addition to the strength of members of the Committee of the Society. In present matter, it is not in dispute that as per Bye-law of respondent No. 3 Society, there is already reservation of 1 seat for woman representative. The proviso to Sub-section [2] of Section 73BBB on which Shri Ghate, learned Counsel for petitioner has placed reliance state that where bye law of the society provide for reservation of seats for women, the total number of seats to be reserved for women shall be equal to number of seats specified in Sub-section [1]. It is therefore, apparent that if, bye law already provides for reservation because of Sub-section [1], the additional reserved post for women is not created and maximum possible reservation for women on such Board of Directors is on seats as prescribed by Section 73BBB. In Sub-section [1] the number of seats reserved for women is to be ascertained with reference to strength of Board of Directors. The strength is to be calculated by looking at the explanation of Sub-section [1], and explanation specifically provides that seats provided by way of reservation u/s 73B, 73BB and under Sub-section [1] of Section 73BBB are not to be included for the purpose of Section 73BB for determining number of Committee Members or Directors on Board.

The reservation provided on Board of Directors of respondent No. 3 is for economical backward class and for Scheduled Caste, Scheduled Tribe, O.B.C., V.J./N.T. And Special Backward Class. Thus total 4 posts out of 13 are reserved as provided for u/s 73B of the Act. Section 73B specifies that these 4 seats reserved under Sub-section [2] of Section 73B are in addition to the strength of members of the Committee. On same line is Sub-section [2] of Section 73BBB. This clarification in both Sections shows that total number of Committee Members prescribed in Bye laws of Society is not disturbed because of these reserved seats which are expressly recognized as additional seats. When these 4 reserved additional seats are ignored, it is apparent that the total strength of Board of Directors of respondent No. 3 becomes 9. The reservation for women provided for under byelaw is therefore covered u/s 73B[1], and hence there is no question of providing second seat for women as reserved seat. The interpretation sought to be placed on proviso to Sub-section [2] of Section 73BBB of the Act, is misconceived. Both i.e. proviso to Sub-section [2] and explanation to Sub-section [1] do not in any way affect each other and only emphasize the legislative intent of providing ceiling on maximum number of such additional reserved seats. The bye law No. 9 cannot be used to defeat this intention.

I, therefore, find that the provisions of Section 73BBB are fulfilled in the present matter. No interference is thus warranted in exercise of writ jurisdiction. Writ Petition is dismissed. Rule discharged. No cost.