Apex Marketing Federation Employees Union vs State of Maharashtra and another

S.M. Daud, J.—This petition under Article 226 of the Constitution is directed at securing an order u/s 73 BB of the Maharashtra Co-operative Societies Act, 1960, (MCS Act) and a further direction to appoint nominees of the petitioner Union as members of the Board of Directors of respondent No. 2.

The second respondent took over from a body, hereinafter to be known as ''the old federation'', as an organisation to attend to the purchase and sale of raw cotton procured by the State of Maharashtra under the Maharashtra Raw Cotton (Procurement, Processing and Marketing) Act, 1971. The petitioner was also a representative Union of the employees of the old federation. The substitution of the old federation by respondent No. 2 came about in August 1984. Consequent to the substitution, certain directions were issued by the State Government, and one such, was that given on August 10, 1984. This, in so far as it related to the regular staff of the old federation, placed the services of the said staff on "as is where is" basis at the disposal of respondent No. 2. The second respondent started functioning and apart from the MCS Act and the Rules framed thereunder, is required, to comply with the Bye-laws. These bye-laws are at Ex. A to the petition. Bye-law 39(9) provides for including on the Board of Directors, persons chosen as Directors as per section 73 BB of the MCS Act. Bye-law 42, however, lays it down that the first Board of Directors of respondent No. 2 shall be nominated by the Government, that the Board shall hold the office for three years, that this period is extendable up to a maximum period of two years, and that the Government may remove all or any of the Directors so nominated and fill in the vacancy so caused or otherwise at any time during the tenure of the nominated Board.

The Government nominated the Board on 9th October 1984. The petitioner union made a request to the second respondent for taking on Board as Directors, the three persons nominated by it. This request, made on 28th May 1986, was accompanied by a certificate of recognition under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971. The application of the petitioner was forwarded to the Government by the second respondent on June 7, 1986. On 31st July 1986, the Government vide Ex. F(1), being the English translation of the Marathi decision, replied as follows : -

"......The Board of Directors of the Federation is nominated by the Government .Hence, the provisions of section 73 BB of the MCS Act do not apply to the Federation, which may please be noted.,.."

It is this decision of the Government which has given rise to the instant petition. Initially, the petitioner had not taken exception to the non-issuing of an order u/s 73BB of the MCS Act to cover respondent No. 2. At one stage the matter was before Jahagirdar, J. and on 4th October 1986, the learned Judge passed a direction reading thus : -

".....Perused the notification.....dated19th March 1975. It does not cover the 2nd respondent Society. Now that the 2nd respondent has taken over all the functions of the Society at Sr. No. 3 in the notification, there is no reason why the Government should not issue a fresh notification to cover the second respondent. The Government Pleader to inform the Government accordingly...."

Apparently, no such information, as was required by the Court, was sent by the Government Pleader to the Government. It is petitioner''s case that having regard to the provisions of section 73BB and the non-raising of any objection to the proposed nomination of its three representatives to the Board of Directors, the Government was bound to include the said three representatives in the nominated Board of Directors. It was bound to do so in view of the fact that several other societies similarly placed as respondent No. 2 had a Board of Directors with representatives of the employees thereon. Respondent No. 2 could not be singled out for the non-inclusion of employees'' representatives on the Board of Directors. If that was allowed, it would amount to depriving the petitioners of a valuable right of representation conferred upon them by the Statute; as also the Bye-laws. No doubt, Section 73BB of the MCS Act gives the impression of the privilege conferred thereby, being dependent upon the issue of a general or special order by the Government. However, this power had to be exercised

JUDGMENT

The petitioner, who was a defendant before the Court of Small Causes, Nagpur in Civil Suit No. 590 of 1983, has challenged the decree of eviction passed by that Court on 2-10-1985. The facts giving rise to this litigation may be briefly stated as follows. The opponent-plaintiff (a landlord) instituted a suit for eviction against the defendant- applicant. It was an admitted position that the plaintiff was a landlord and the defendant was a tenant in respect of these tenements. During the pendency of the suit, there was a compromise arrived at between the contesting parties and according to the terms of the compromise the defendant undertook to vacate the suit tenements by 31st of March 1986.

The defendant was admittedly occupying these tenements for non-residential purposes. Under a Notification issued by the State Government in pursuance of section 30 of the Rent Control Order, 1949 the non-residential premises were excluded from the operation of the Rent Control Order. However, this exclusion was applicable only to those premises which came to be constructed on or after 1-1-1967. This was the law prevailing in this region for more than a decade and the parties went to the Court with the law prevailing then.

This exemption granted by the Government under clause 30 of the Rent Control Order came to be challenged before this very Court in Writ Petitions Nos. 1670 and 1695 of 1985. This Court in its judgment delivered on 29-8-1986 declared this notification as ultra vires. The result of this declaration was that there was no exemption available to any tenements irrespective of the fact whether they were constructed before or after 1-1-1967. The general provisions of the Rent Control Order prevailed and a landlord seeking redress against a tenant for a relief including the eviction was under obligation to comply with certain conditions before he could approach the Court. There was a specific prohibition on the landlord coming to the Court for relief of eviction unless he obtained a previous permission of the Rent Controller. This prohibition can be found in clause 13(1) of the said Order.

With this background, it will be proper at this stage to probe into the controversy. It was admittedly a suit for eviction by a landlord against a tenant. Apparently under the Notification issued by the State Government, these premises (which were non-residential premises) were exempted from the operation of the provisions of the Rent Control Order. It means that the provisions of the Rent Control Order were not applicable. There was thus no statutory protection available to any of the tenants as was available to others in other regions of the State. The landlord, therefore, went before the common law court with the relief of eviction and that relief was granted by the Court of Small Causes at Nagpur and decree of eviction has been passed against the tenant.

This decree came to be passed on the assumption that the premises in dispute were excluded from the operation of the Rent Control Order. There is no dispute regarding this proposition. The only point regarding which there was a controversy was whether in spite of the decision of this Court in Vidarbha Bhadekaru Sangh vs. State of Maharashtra, 1986 Mh.LJ. 882, the decree passed by the Court of Small Causes remains a good decree or whether it becomes a decree passed by the Court without any jurisdiction. Obviously in view of the Notification it was only the common law Court which was to decide such subject-matters and under common law there was neither any restriction nor any prohibition on the landlord to come before the Court for the relief of eviction. It was only under clause 13( 1) of the Rent Control Order that the landlord was required to obtain previous permission from the Rent Controller before moving the Ordinary Court for the relief of eviction. The point of jurisdiction would arise in this

ORDER

Respondent No. 1 do issue a special order as required by section 73BB of MCS Act and make the same applicable to the Board of Directors of respondent No. 2 inclusive of the existing nominated Board and further do accept the proposal of petitioner conveyed through respondent No. 1 to appoint three of its nominees on the Board of Directors.

Rule in the above terms made absolute, with parties being left to bear their own costs.