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PETITIONER: BABAJI KONDAJI GARAD ETC.

       Vs.

RESPONDENT: THE NASIK MERCHANTS CO-OPERATIVE BANK LTD., NASIK & ORS.ETC.

DATE OF JUDGMENT31/10/1983

BENCH: DESAI, D.A. BENCH: DESAI, D.A. REDDY, O. CHINNAPPA (J) VARADARAJAN, A. (J)

CITATION:  1984 AIR  192            1984 SCR  (1) 767  1984 SCC  (2)  50        1983 SCALE  (2)696  CITATOR INFO :  RF         1986 SC1499  (16)  RF         1988 SC 784  (21)

ACT:      Maharashtra Cooperative  Societies Act,  1960-Sec.  73B interpretation of-Reservation  of two  seats  for  Scheduled Casts/Scheduled Tribes  and weaker section on committee of a specified society  mandatory-Reserved seats  to be filled in primarily by  election-Failing election  alone seats  may be filled by  appointment or  co-option. Election held pursuant to  election  notification  not  mentioning  reservation  of seats-Illegal.      Interpretation- ’The  equity of  the statute’-Method of construction of  a statute-Used  in the past-Still in vogue. Legislature  uses   appropriate  language  to  manifest  its intention.      Administrative Law-Bye-law-Status  of-Cannot be held to be law  or have  the force  of law. In case of inconsistency between bye-law  &  statute-Statute  prevails.  Construction placed on  a statutory  provision  by  executive  branch-Not relevant for interpreting the provision by court.

HEADNOTE:      On expiry  of the  term of the committee known as Board of Directors  of a  specified society  under the Maharashtra Cooperative Societies  Act, 1960  the Collector notified the election programme  without specifying that the two seats on the committee  would be  reserved seats; one for the members belonging to  the Scheduled  Castes or  Scheduled Tribes and one for  the weaker  section of  the members of the society. Pursuant to  that election  programme the  poll was held and the result was declared. The said election was challenged by a member  of the society belonging to Scheduled Tribe on the ground that  the whole of the election programme is vitiated on  account   of  its  non  compliance  with  the  mandatory statutory provision  enacted in  sec. 73B  which  prescribed reservation of  seats; one  in favour of Scheduled Castes or Scheduled Tribes  and another  in favour  of weaker  section from the members of the society. The Additional Commissioner who heard the election petition declared the election of the elected members  as void and ineffective. On a writ petition

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filed by  some of  the elected  members the  High Court held that it  was not  imperative that the reserved seats must be filled in only by election and the mandate of sec. 73B would be adequately  complied with if reserved seats are filled in by co-option  and there  was  no  error  in  conducting  the election. In  these appeals  the appellants  submitted  that sec. 73B  proceeded to  make a  statutory reservation of two seats and  declared its  preference in  favour of filling in the reserved seats by 768 election failing  which alone  the reserved seats were to be filled  in  by  appointment  or  co-option.  The  respondent submitted that  the filling of the reserved seats was a sine qua non;  the method of filling reserved seats was directory and therefore any of the three modes could be adopted.      Allowing the appeals, ^      HELD: The  election in  question is  ex facie  illegal, invalid and contrary to law. [781 F]      Section 73  of the  Act requires  the Collector to hold election in  accordance with the Act including sec. 73B. The failure  to   hold  election  in  accordance  with  the  Act including sec.73B would vitiate the whole election programme from commencement  till the end. It would all the more be so because the  failure  to  hold  election  according  to  the provisions of  the Act  which denies  an opportunity  to the persons who  are eligible  to get  elected to  the  reserved seats would  certainly vitiate the whole election programme. Therefore,  the  Collector  must  specify  in  the  election programme inter  alia that  there are  reserved seats  to be filled  in  by  election  and  the  class  in  whose  favour reservation is  made. This  will be  notice to  the  members eligible for  contesting election  to reserved seats so that they may fill in their nomination. In the instant case there is not  even a whisper in the election programme whether any of the  seats were  reserved. The  omission is  glaring  and fatal. Therefore,  it  can  be  safely  concluded  that  the election is held in violation of sec. 73B. [781 D-F]      Any provision  making for reservation must receive such construction as  would advance  the purpose  and  intendment underlying the  provision making  reservation and not thwart it. In  the past a method of construction was used to extend a remedial statute called proceeding upon ’the equity of the statute’. Now a days even though that method of construction has fallen  into disuse,  it is  still in  vogue in somewhat similar from  in that  if it is manifest that the principles of justice  require  something  to  be  done  which  is  not expressly provided  for in  an Act of Parliament, a court of justice will  take into consideration the spirit and meaning of the Act apart from the words. [775 G-H; 776 B]      Hay v.  Lord Provost  of Perth,  [1863]  3  Macq.  H.L. (S.C.) 535  at 544;  Re Bethlem  Hospital [1875] L.R. 19 Eq. 457 and  Craies Statute  Law,  Seventh  Edition  P.  101-103 referred to.      No canon  of construction can be said to be more firmly established than  this that the legislature uses appropriate language to manifest its intention. In the instant case, the use of  the expression  ’shall’ in sec. 73B clearly mandates obligation to  reserve. The section itself clearly manifests legislative intention  when it says that ’if no such persons are elected  or appointed,’ the reserved seats may be filled in by  co-option. The  language and  the chronology  of  the methodology of  filling in  reserved seats  employed in sec. 73B provide  a clue  to its  correct construction  and there should be  no doubt  that opportunity  must be  provided for

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filling in  seats by  election. It  is the  failure  of  the election machinery  to fill  in the  seats by election which would enable  the concerned  authority to  fill in  seats by appointment or co-option. [776 G-H; 777 A-B] 769      The  bye-laws   of  a  cooperative  society  framed  in pursuance of  the provision  of the  relevant Act  cannot be held to be law or to have the force of law. They are neither statutory in character nor they have statutory flavour so as to be  raised to the status of law. If there is any conflict between a  statute  and  the  subordinate  legislation,  the statute prevails  over subordinate  legislation and the bye- law if  not in  conformity with the statute in order to give effect to the statutory provision the rule or bye-law has to be ignored.  The statutory provision has precedence and must be complied with. [780 B-C]      In the  instant case  sec. 73B  provides a  legislative mandate. Rule  61 has  a status of subsidiary legislation or delegated legislation. [779 H]      Co-operative Central  Bank Ltd.  and Ors. v. Additional Industrial Tribunal, Andhra Pradesh and Ors. [1970] 1 S.C.R. 205 referred to.      A view  of law  or a  legal provision  expressed  by  a Government Officer  cannot afford  reliable  basis  or  even guidance in  the matter  of construction  of  a  legislative measure. It  is  the  function  of  the  Court  to  construe legislative measures  and in reaching the correct meaning of a statutory provision, opinion of executive branch is hardly relevant. Nor  can the  Court abdicate  in  favour  of  such opinion. In  the instant  case the  opinion  of  the  Deputy Registrar as  expressed in  his letter  and circular  has no relevance. [780 F-G; D]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11991 of 1983.      From the  Judgment and Order dated the 27th April, 1983 of the High Court of Bombay in Writ Petition No.392 of 1982.                             AND      Civil Appeal No.1810/81.      From the Judgment and Order dated the 8th July, 1981 of the High Court of Bombay in Writ Petition No.1484 of 1981.      V.M. Tarkunde,  Mrs. M. Karanjawala and R. Karanjawala, for the appellant in C.A.No. 11991/83.      M.N. Phadke,  C.K. Ratnaparkhi  and A.N. Sawant for the respondents in C.A.No. 11991/83.      P.R.  Mridul,   P.N.  Parekh  and  P.  Mishra  for  the respondent No. 1      R.P. Bhatt,  K. Rajendra  Choudhary and K.S. Choudhary, for the appellant in C.A. No.1810/81. 770      Dr. N.M.  Ghatate, S.V.  Deshpande, V.B. Joshi and M.N. Shroff for the respondents in C.A. No. 1810/81.      The Judgment of the Court was delivered by      DESAI, J.  Construction of  Sec. 73B of the Maharashtra Cooperative Societies Act, 1960 (’Act’ for short) figures in these two appeals arising from the two decisions rendered by the Bombay  High Court, covering the same point and reaching the same  conclusion, but  the latter one does not take note of the  earlier decision. Re: S.L.P. (Civil) No. 773283: The Nasik  Merchants   Co-operative   Bank   Ltd.,   the   first respondent, is  a co-operative  Bank deemed to be registered under the  Act and is governed by the Act. It was registered

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on June  11, 1959.  It is  a specified  society  within  the meaning of  the expression  in Sec.  73G(1)(vii) of the Act. Accordingly the election of the members of the Committee and the election  of the  office-bearers by the Committee of the first respondent  would be  subject  to  the  provisions  of Chapter  XI-A   and  has  to  be  conducted  in  the  manner prescribed in the Chapter. The Committee in which management of the  first respondent  vests, is  designated as  Board of Directors. The term of the members of the Board of Directors is five  years. The  election to  the Board of Directors for the period  1981-82 to  1985-86 became  due. As  required by Sec. 144-C,  the Collector having jurisdiction in the matter notified the  programme of  election on October 29, 1981. At the relevant  time, the  strength of  the Board of Directors was 15 in number. 14 Directors were to be elected by members and one  was to  be nominated  by the  Central  Co-operative Bank. It  is not  disputed but  in fact  conceded  that  the election programme notified by the Collector did not specify that the  two seats  on the  Board of Directors of the first respondent would  be reserved  seats; one  for  the  members belonging to  the Scheduled  Castes or  Scheduled Tribes and one for  the weaker  section of  the members  who have  been granted loans  from the  society of  an amount not exceeding Rs. 200 during the year immediately preceding as required by Sec. 73B  of the Act. Poll was held on December 14, 1981 and the counting  of votes  took place  on December 14, 1981 and the result  was declared on December 17, 1981. Respondents 3 to  16   were  declared   elected.  Thereupon   the  present petitioner,  a  member  of  the  first  respondent-Bank  and belonging to  the Joshi  community which  is recognised as a Scheduled Tribe  moved an  election petition  under Sec. 144 before  the   Additional  Commissioner,  Nasik,  calling  in question the election of respondents 3 to 16 to the Board of 771 Directors of  the firs  respondent-Bank inter  alia  on  the ground that  the whole of the election programme is vitiated on  account   of  its   non-compliance  with  the  mandatory statutory provision  enacted in  Sec. 73B  which  prescribes reservation of  seats; one  in favour of Scheduled Castes or Scheduled Tribes  and another  in favour  of weaker  section from the  members who  had borrowed  loans not exceeding Rs. 200 in the year preceding the year of election (’reservation for weaker  section’ for short). There were other grounds on which the  election of  respondents 3  to 16  was called  in question but  they are no more relevant and need not clutter the record  here. The  Additional Commissioner  as  per  his judgment and  order dated February 8, 1982 held that despite the failure of the first respondent-Bank to amend bye-law 41 (correct bye-law  appears to  be  40)  even  after  repeated reminders by  the District  Deputy Registrar, the mandate of Sec. 73B  will have precedence overt he unamended bye-law 40 and  as   the  election   process  was   set  in  motion  in contravention of  the mandatory  provision contained in Sec. 73B and  the relevant  rules, the result of the election has been  materially   affected  and  accordingly  declared  the election of respondents Nos. 3 to 16 as void and ineffective and directed  the Collector,  Nasik to  hold the election de novo.      Respondents Nos.  3 to  7 and 9, 10 and 12 and 14 to 16 filed Writ  Petition No.  392 of  1982 in  the High Court of Judicature at  Bombay under Art. 227 of the Constitution for a writ  of certiorari.  A Division  Bench of the Bombay High Court granted  the writ  and made  the rule absolute holding that it  is not  imperative that  the reserved seats must be filled in only by election and the mandate of Sec. 73B would

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be adequately  complied with if reserved seats are filled in by co-option  and therefore, there is no error in conducting the election.  Accordingly,  the  order  of  the  Additional Collector  was  quashed  and  set  aside  and  the  election petition was dismissed.      When the  petition for  special leave to appeal came up before this  Court, a  direction was  given that  the matter will be  disposed of  at the stage of granting special leave as if  it is  an appeal. Hence this appeal by special leave. Re. C.A.  No. 1810/81:  The Parbhani  District  Central  Co- operative bank Ltd., the second respondent is a co-operative bank deemed  to  be  registered  under  the  Act.  It  is  a specified society  within the  meaning of  the expression in Sec. 73G.  The term  of members  of the  Board of  Directors expired. Accordingly,  the Collector  of Parbhani, the first respondent notified  programme of  election commencing  from March 30, 1981 and 772 ending with  the counting of votes and declaration of result on April  24, 1981. The election was held and the result was announced and respondents No. 3 to 12 were declared elected. Thereafter the  meeting of  the elected members of the Board of Directors  is to be convened to elect the office bearers. At that  stage, the  two appellants  filed Writ Petition No. 1484 of  1981 in  the  Bombay  High  Court  questioning  the validity of  the election  of the  respondents 3 to 12 inter alia on  the ground  that the election was held in violation of Sec. 73B of the Act.      A Division  Bench of  the Bombay  High Court  held that there was  some confusion between the procedure for election prescribed in  the  rules  and  the  bye-laws  and  the  one prescribed in  Sec. 73B and therefore, the Collector did not take steps to hold election to the reserved seats. The Court further held  that the  first petitioner  did not  take  any objection until the whole election process was completed and at a later stage approached the Court to ’throttle down’ the election of  the office-bearers and that this might indicate a waiver of the right on the part of the petitioner and also it amounts to acquiescence and therefore, no interference is called for at the instance of the petitioner. The Court also observed that  co-option being an alternative to election to the reserved  seats,  the  mandate  of  Sec.  73B  would  be satisfied if  the Board  of Directors co-opts two members to provide  representation   to   the   two   reserved   seats. Approaching the  matter from  this angle,  the writ petition was dismissed. Hence this appeal by special leave.      The out-come  of these  two appeals  depends  upon  the construction to  be put  on Sec. 73B which must subserve the underlying intendment  of that  provision. Sec. 73B reads as under:           "On the  committee of  such society  or  class  of      societies as  the State  Government may,  by general or      special order, direct, two seats shall be reserved, one      for the  members who  belong to the Scheduled Castes or      Scheduled tribes  and one for the weaker section of the      members who have been granted loans from the society of      an  amount  not  exceeding  Rs.  200  during  the  year      immediately preceding.  If no  such persons are elected      or appointed,  the committee  shall co-opt the required      number of  members on  the committee  from amongst  the      persons entitled to such representation." 773      Section  73  provides  that  the  management  of  every society shall vest in a committee, constituted in accordance with the  Act, the rules and the bye-laws. Sec. 73B mandates

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that two  seats shall  be reserved  on the committee of such society or  class of  societies as the State Government may, by general  or special  order, direct,  (’Specified society’ for short)  one for  the members who belong to the Scheduled Castes or Scheduled Tribes and one for the weaker section of the members  who have been granted loans from the society of an amount  not exceeding Rs. 200 during the year immediately preceding. Sec. 73B further provides that if no such persons are elected  or appointed,  the committee  shall co-opt  the required number of members on the committee from amongst the persons entitled to such representation.      We may  now  note  the  rival  contentions.  Appellants assert that  the reservation  in  favour  of  the  Scheduled Castes and  Scheduled  Tribes  and  weaker  section  of  the members  on   the  committee  of  the  society  manifests  a statutory attempt  giving effect  to the  provisions of  the Constitution especially  the one contained in Arts 43 and 46 and  has   to  be  given  effect  as  if  carrying  out  the constitutional mandate  enshrined in  Arts. 15 and 16 of the Constitution. Proceeding  along this  line, it was submitted that a  democratic polity  swears by  setting up  democratic institutions election, neither by appointment nor co-option. It was  submitted that the Legislature has clearly indicated its preference in favour of election failing which alone the reserved seats may be filled in by appointment or co-option. They have  called in  aid the  chronology of methodology set out in  Sec. 73B.  wherein it  is stated  that ’if  no  such persons are  elected or  appointed,’ the committee shall co- opt the  required number  of members  on the  committee from amongst  the   persons  entitled  to  such  representation.’ Appellants  assert   that  Sec.  73B  proceeded  to  make  a statutory  reservation   of  two   seats  and  declared  its preference in  favour of  filling in  the reserved  seats by election and  that is  indicated by  the expression;  ’if no such persons  are elected  or appointed,’ the committee then in order  not to  defeat  legislative  intention  of  giving representation to  the class  in whose favour reservation is made, shall  co-opt the  required number  of members  on the committee. The  appellants say that co-option can be availed of as  the last  resort  and  cannot  be  used  to  supplant election  to   defeat  the   legislative  mandate  according priority to election or appointment. They say that co-option can  only   be  resorted   to,  to  effectuate  the  purpose underlying Sec.  73B if  and only  if an attempt having been made at first providing an 774 opportunity to  fill in  reserved seats by election, failing which appointment  and thereafter co-option, which cannot be equated with election or appointment so that anyone mode may be adopted  for filling in the reserved seats at the whim or caprice or  sweet will  either of the statutory authority or the committee of members.      The respondents  excluding the  statutory authority  on the other  hand contend  that the object underlying Sec. 73B is to provide for giving an opportunity to persons belonging to the  class in  whose favour  reservation is  made such as members of  the  Scheduled  Casts/Scheduled  Tribes  or  the weaker section  of the  members of  the Society to be on the committee. The  primary importance is of filling in reserved seats and  not the  methodology because  the legislature was aware that a class of persons in whose favour reservation is made may  not  be  available  for  election  and  therefore, provision for  appointment as  also for  co-option has  been simultaneously made in Sec. 73B. The respondents assert that the filling  in of  the reserved  seats is a sine qua non to

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carry out the mandate of Sec. 73B and not the mode or method by which the reserved seats are filled.      The rival  contentions clearly  bring to  the fore  the question of construction of Sec. 73B.      The Act  was enacted in 1960 and it repealed the Bombay Co operative  Societies Act,  1925. Sec. 73 provides for the vesting of the management of every society in a committee to be constituted in accordance with the Act, the rules and the bye-laws. At  the commencement  of the  Act,  there  was  no provision for  reservation of seats in favour of the members of the  Scheduled Castes  and the  Scheduled Tribes  and the weaker section  of the  members. Sec. 73B making reservation obligatory was  introduced in  the Act by Amending Act 27 of 1969. Why  was this specific amendment made ? The working of the Act  must have  disclosed a  sorry state of affairs that even though  the cooperative movement was expanding by leaps and bounds,  the members  of Scheduled  Castes and  Schedule Tribes or  the weaker  section of the members of the society were not represented in the committee and had no opportunity to participate  in the  decision making process, laying down broad policies and management of the society. Art. 43 of the Constitution set  the goal that the State shall endeavour to promote cottage  industries on an individual or co-operative basis in rural areas. In our onward march of economic 775 independence, India  was  destined  to  be  a  co  operative commonwealth.  Since   independence,  co-operative  movement proliferated  in   all  directions,   its  activities   were diversified, more  especially  in  the  rural  areas;  Every activity of  a person  devoted to  agriculture in  the rural area  is   considerably  influenced   by  the   co-operative movement, such  as seed  distribution, credit,  disposal  of agricultural produce  etc.  The  members  of  the  Scheduled Castes and Scheduled Tribes predominantly in rural areas did not remain  unaffected by  the gigantic  stride that the co- operative   movement    took.   They   were   directly   and substantially affected  by it.  In order to avoid that those who are  affected by  the movement in their vital day to day existence enjoy  a second  class status  by being denied the opportunity to be represented in the management council, and decision making  bodies,  a  provision  like  Sec.  73B  was introduced to  ensure representation  of such persons who in the absence  of reservation  may find  it  difficult  to  be elected to  the committee  in  which  the  entire  power  of management vests.  Absence of  representation  coupled  with subjection  to   the  dictates   of  the  society  would  be antithesis of  democratic process  reducing such  persons to serfdom. A  co-operative society  is to  be  governed  by  a committee elected  by democratic  process.  This  democratic process must permeate in filling in reserved seats otherwise the committee  would not  enjoy a  representative character. One can draw light from the provisions contained in Part XVI of the  Constitution and  especially Arts. 330 and 332 which provide for  reservation of seats in the House of People and in the Legislative Assembly of every State for the Scheduled Castes and the Scheduled Tribes. The felt necessities of the time and  the historical perspective of class domination led to the constitutional guarantee of reservation so that India can  truly  be  a  Sovereign  Socialist  Secular  Democratic Republic. A  republic is  made up  of men  and institutions. That is  why democratic  institutions have  to be  set up by providing  for   election  and   to  make   the   democratic institutions truly  representative, reservation of seats for those who  on account,  of their  backwardness, exploitation and unjust  treatment both social and economic cannot obtain

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representation because  of the class domination. This is the genesis of  reservation. Therefore, any provision making for reservation must  receive such construction as would advance the purpose  and intendment  underlying the provision making reservation and  not thwart  it. "In  the past  a method  of construction was  used to  extend a  remedial statute called proceeding upon  the equity  of the  statute. In Hay v. Lord Provost of Perth Lord Westbury observed that the mode of 776 construction known  as the  equity of the statute’ was ’very common  with  regard  to  our  earlier  statutes,  and  very consistent with  the principle and manner according to which Acts of  Parliament were  at that time framed.’ Undoubtedly, now-a-days this mode of construction has fallen into disuse: Even though  the expression  ’the equity of the statute’ has fallen into disuse, it is still in vogue in somewhat similar form in  that if  it is  manifest  that  the  principles  of justice require  something to be done which is not expressly provided for  in an  Act of  Parliament, a  court of justice will take  into consideration  the spirit and meaning of the Act apart  from the  words. In  this context, one can recall the words  of Jessel  M.R. in Re Bethlem Hospital, that ’the equity of  the statute’  may as  well mean,  such a thing as construing an  Act  according  to  its  intent,  though  not according to  its words.  Alternatively, one  can  bring  in Hydon’s test  more often noticed by this Court that in order to arrive  at true intendment of a statute, the Court should pose to  itself the  questions; (1)  what was  the situation prior to the provision under construction, (2) what mischief or defect  was noticed before introducing the provision, (3) whether it  was remedial  and (4) the reason for the remedy. Applying this test, the same result would follow inasmuch as looking to  the position  and the plight of Scheduled Castes and Scheduled  Tribes and  the weaker section of the members of a society, though they would be subject to the dictate of the society they had no voice in the managerial councils and that to  raise the  stature and status of such persons so as to bring them on the footing of equality with other segments of the  society, reservation  was provided in the absence of which those  in whose  favour reservation was made could not get  elected   to  the   decision   making   bodies.   While ascertaining the  true canon  of construction  applicable to Sec. 73B, these aspects must stare into our face.      Before  going   in  search  of  any  external  aids  of construction, let  us look  at the  language employed by the Legislature because  no canon of construction can be said to be more  firmly established  than this  that the Legislature uses appropriate  language to  manifest  its  intention.  No controversy  was   raised  with   regard  to  the  power  of Legislature  to   prescribe  reservation  of  seats  in  the committee in  which the management of the society vests. The use of  the expression  ’shall’ in Sec. 73B clearly mandates obligation to reserve. 777      The next  question is  how the reserved seats are to be filled in ? The section itself clearly manifests legislative intention when  it says that ’if no such persons are elected or appointed,’  the reserved  seats may  be filled in by co- option.  Therefore,  the  pride  of  place  is  accorded  to election of  persons eligible to fill in reserved seats. Let there be  no mistake  that there is no reserved constituency which  may   divide  the  society  or  the  electorate.  The constituency is the general constituency. Only the seats are reserved. This  would imply that the general body of members will elect persons eligible to fill in reserved seats.

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    When statute  requires a  certain thing to be done in a certain manner, it can be done in that manner alone unless a contrary indication  is to  be found  in the statute. If the Legislature uses expression ’if no such persons are elected’ it indubitably  suggests that  primarily the  reserved seats are to  be filled  in by election. Failing the election, one can resort  to appointment  or co-option.  The chronology of the methodology  by which  seats are  to be filled in as set out in Sec. 73B clearly manifests the legislative intention. The first  and the  foremost pride  of place  is accorded to election.  It  ought  to  be  so  because  a  representative institution ordinarily  must be  democratically elected. The section therefore,  speaks ’if  no such persons are elected’ which would mean the authorities charged with a duty to hold election must  proceed to  arrange for holding the election. If election  is held  giving out  information that there are reserved seats  and no  candidate is  forthcoming to contest for the  reserved  seats,  the  Legislature  in  its  wisdom provided that  the seats  shall not remain vacant but can be filled in  by two  subsidiary methods such as appointment or co-option which  cannot  be  put  on  par  or  equated  with election which  is a  universally recognised method by which representative  institutions  are  set  up.  Therefore,  the language and the chronology of the methodology of filling in reserved seats  employed in  Sec. 73B  provide a clue to its correct construction  and there  should  be  no  doubt  that opportunity  must  be  provided  for  filling  in  seats  by election. It  is   the failure  of the election machinery to fill in the seats which would enable the concerned authority to fill  in the  seats  by  appointment  or  co-option.  The condition  precedent   to  filling   in  reserved  seats  by appointment or  co-option is  holding of  the  election  and failure to  elect such  persons would permit resort to other methods of filling in the reserved seats.      It was  submitted that  the object  underlying Sec. 73B can as  well be  fulfilled by co-opting two persons eligible to fill in reserved seats. 778 The more  vociferous submission  was that  such construction should be  put on  a statutory  provision which accords with the main  thrust of  the section  and  not  with  peripheral requirements which  would appear  to be  directory.  It  was urged that  the fundamental  requirement of  Sec. 73B  is to provide  representation   to   specified   classes   therein mentioned and  that must be held to be mandatory and not the method by  which the  representation is  ensured. Further it was said  that there  is illuminating inter evidence in Sec. 73B itself  which shows  that the method of filling in seats is directory  and therefore three alternative modes by which reserved seats  could be  filled in  were  provided  in  the provision itself.  Proceeding along  this line,  it was said that co-option  can equally  ensure  representation  to  the qualified persons  to fill  in the  reserved seats, and that therefore, the  Court should  not upset  the entire election process on  this account. If this approach is ever accepted, it would strike a death-knell of the democratic principle of giving   the   constituency   the   right   to   elect   its representatives and  it would  be usurped  by a  coterie  of certain   elected    persons.   From   enjoying   a   direct representation, the  constituency would  move backwards  and the process  of regress  would be  that  instead  of  direct election by  the constituency  which is  the statutory right granted by Sec. 73B, the right to select would be usurped by the Board  of Directors  who would  decide who should be co- opted to  fill in  the reserved  seats.  Such  a  retrograde

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movement  is   undemocratic.  The  struggle  to  get  direct representation cannot  be  thwarted  in  this  manner.  This becomes manifest  from the fact that the power to co-opt the members to  fill in  reserved  seats  is  conferred  on  the members of  the committee i.e. on the Board of Directors. To tersely put  the issue  in focus,  the method  of  co-option denudes the  power of  the constituency to elect members and is usurped  by a small body like the Board of Directors. The outcome is not difficult to gauge. The committee will co-opt members who  would be  their puppets,  totally ignoring whom the constituency i.e. the general body of members would have elected. If it is the effect of co-option, it could never be equated with  election much  less accorded  precedence  over election by  the general  body of  the members  that is  the constituency.  Therefore   the  submission  that  method  of filling in reserved seats is directory and therefore any one of the  three modes  can  be  adopted  to  comply  with  the mandatory part  of Sec.  73B viz. filling in reserved seats, does not commend to us.      Mr.  Phadke,  learned  counsel  who  appeared  for  the respondents in one of the appeals urged that the emphasis is on filling in reserved 779 seats and  not the  mode or  method by  which the  seats are filled in.  In this connection, he drew our attention to the unamended bye-law  No. 40  of the  bye-laws framed  by Nasik Merchants Co-operative  Bank Ltd.,  the first  respondent in the first matter. After referring to the unamended bye-laws, it was  urged that  there  was  no  provision  for  electing members to the reserved seats. He further urged that Sec. 72 requires that  the election  to the committee has to be held according to  the Act, the rules and the bye-laws. Reference was also  made to  the procedure  for counting for votes set out in  rule 61  of the  Maharashtra Specified  Co-operative Societies Election  to Committees  Rules, 1971  (’Rules’ for short), which provide that the Returning Officer shall after the counting  of votes  declare the  candidate to  whom  the highest number of valid votes has been given, as having been elected. It  was pointed out that bye-law No. 40 was amended as late  as February 13, 1983, which was much later than the date of  the impugned election. The amended bye-law did make provision for election to reserved seats. The High Court has also noticed  amendment of  Rule 61 by Maharashtra Specified Co-operative Societies  Elections to  Committee  (Amendment) Rules, 1979.  He further  drew our attention to the circular dated Ist  February, 1979,  issued by  the  District  Deputy Registrar of  Co-operative Societies  at Nasik  in which  he pointed out that the committee should co-opt required number of  members  on  the  committee  from  amongst  the  persons entitled  to  representation  on  the  reserved  seats.  The specified societies  were also  requested to  amend the bye- laws as  early as  possible. He also drew our attention to a letter dated  June 4,  1979 addressed  to the Nasik Merchant Co-operative  Society  Bank  Ltd,  by  the  District  Deputy Registrar, Nasik pointing out therein that if the bye-law is not amended  the reserved  seats should  be filled in by co- option and  that the  compliance should  be reported  before March 31,  1979. He  again requested  the Bank  to amend the bye-laws to  bring them  in conformity with the requirements of Sec.  73B. Relying  on the unamended bye-law, rule 61 and the aforementioned  two documents, it was submitted that the Government itself  did not  consider election to be the only mode  or  method  of  filling  in  the  reserved  seats  and persistently requested  the Bank  to co-opt necessary number of members  to fill in the reserved seats, and therefore, it

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is not  proper to  invalidate the whole process of election. We remain unconvinced.      Sec. 73B  provides a legislative mandate. Rule 61 has a status of  subsidiary legislation  or delegated legislation. Bye-law of a co- 780 operative society  can at best have the status of an Article of Association  of a  company governed by the Companies Act, 1956 and  as held by this Court in Co-operative Central Bank Ltd. and  others v.  Additional Industrial  Tribunal, Andhra Pradesh and  Others the  bye-laws of  a co-operative society framed in  pursuance of  the provision  of the  relevant Act cannot be  held to  be law or to have the force of law. They are neither  statutory in  character nor they have statutory flavour so  as to  be raised  to the  status of  law. Now if there is  any conflict between a statute and the subordinate legislation, it  does not  require  elaborate  reasoning  to firmly state  that the  statute  prevails  over  subordinate legislation and  the bye-law  if not  in conformity with the statute in  order to  give effect to the statutory provision the rule  or  bye-law  has  to  be  ignored.  The  statutory provision has  precedence and must be complied with. Further the opinion  of the  Deputy Registrar  as expressed  in  his circular dated February 1, 1979 and his letter dated June 4, 1979 has  no relevance  because his  lake  of  knowledge  or misunderstanding of  law as  expressed in his opinion has no relevance. The  High Court  relying upon  the aforementioned two documents observed as under:           "There is no inconsistency between Section 73B and      the bye-laws  because even the Government has construed      Section 73B  in such  manner that  even though the bye-      laws are not amended and reserved seats remain unfilled      by election the same can be filled up by co-option."      With respect, we find it difficult to subscribe to this untenable approach  that a  view of law or a legal provision expressed by  a Government Officer can afford reliable basis or  even  guidance  in  the  matter  of  construction  of  a legislative measure.  It is  the function  of the  Court  to construe legislative  measures and  in reaching  the correct meaning of  a  statutory  provision,  opinion  of  executive branch is  hardly relevant.  Nor can  the Court  abdicate in favour of such opinion.      The provision  contained in  Chapter  XI-A  applies  to election  to   the   committees   of   specified   societies categorised in  Sec. 73B.  Sec. 144-C requires the Collector to draw an election programme and arrange for conducting the election or  under his  control  by  the  Returning  Officer according to the programme. Now the election 781 programme has to be published. The programme therefore, must in order  to comply with legal formality show whether any of the seats to be filled in are reserved and specify the class in whose  favour reservation  has been  made, so  as to give notice  to  persons  eligible  for  contesting  election  to reserved seats.  This becomes manifestly clear from the form prescribed for  filling in  the nomination  paper being Form No. 2 appended to the rules. In the case of reserved seats a further declaration  has to  be made  in the nomination form that the  candidate belongs to Scheduled Castes or Scheduled Tribes or  Vimukta Jati or the weaker section candidate. And this declaration  has to be signed by the candidate himself. Now therefore,  the Collector, a statutory authority charged with a  duty to  hold election  according to  the Act,  must specify in  the election programme inter alia that there are reserved seats  to be filled in by election and the class in

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whose favour reservation is made. This will be notice to the members eligible  for contesting  election to reserved seats so that they may fill in their nomination. There is not even a whisper in the election programme whether any of the seats were reserved. The omission is glaring and fatal. As pointed out earlier,  election has to be held to form the committee. Sec.  73   requires  the   Collector  to  hold  election  in accordance with  the Act  including Sec. 73B. The failure to hold election  in accordance with the Act including Sec. 73B would vitiate the whole election programme from commencement till the  end. It  would all  the more  be  so  because  the failure to  hold election according to the provisions of the Act which  denies an  opportunity to  the  persons  who  are eligible  to   get  elected  to  the  reserved  seats  would certainly vitiate  the whole  election  programme.  One  can safely conclude  that the  election is  held in violation of Sec. 73B.  Therefore, in  our opinion, the High Court was in error in  upholding the election, which is ex facie illegal, invalid and contrary to law.      Accordingly both  these appeals  succeed  Civil  Appeal arising from  S.L.P. No. 7732/83 is allowed and the decision of the  High Court  is quashed  and set  aside and  the  one rendered by the Additional Commissioner is restored.      Civil Appeal  No. 1810/81  is allowed  and the judgment and order  of the High Court are set aside. A writ be issued quashing and  setting aside the election of respondents 3 to 12 to  the Board  of Directors  of the Parbhani District Co- operative Bank Ltd. 782      The concerned  statutory authority  in both  the  cases should proceed  to hold  the election  afresh  as  early  as possible and  should complete the process within a period of 3 months  from today.  In the meantime, the status quo as on today should  continue. There  will be no orders as to costs of hearing in this Court. H.S.K.                                      Appeals allowed. 783