Chandra Shakher Dimole vs State Of Madhya Pradesh & Others

Sanjay Yadav, J

This Appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 19.02.2020 passed in Writ Petition No.27242/2019.

Appellant-Petitioner, Assistant Society Manager in Primary Agriculture Credit Co-operative Society, Rasena, District Sagar was subjected to registration of Criminal Case No.195/2019 under Section 13(1)(b) read with 13(2) of the Prevention of Corruption Act, 1988 (as amended in 2018), by Lokayukta for having disproportionate property. The registration of Criminal case led the Board of Directors in its meeting held on 06.12.2019 resolve his removal. Consequent whereof, vide order dated 07.12.2019, he was removed from the post of Assistant Society Manager. Petitioner challenged the resolution in the subject Writ Petition primarily on the ground that there was no proper quorum, as out of 13 members constituting a Board of Directors as per Clause 30(1) of the Bye-laws of the Society, the resolution was passed in presence of 5 Directors, contrary to the stipulation contained under sub-Rule (6) of Rule 43 of the Madhya Pradesh Co-operative Societies Rules, 1962 (for short 'Rules of 1962').

Learned Single Judge adverting to Clause 30(1) of the Bye-laws found that it only provides for the constitution of Board of Directors and further found that "no documents has been filed which may show the quorum prescribed for holding a meeting as per the bye laws." Even before us no cogent material is commended at to establish as to what shall be the quorum for holding the meeting. Be that as it may. Thereafter, on a finding that the Board of Directors at the given point of time consisted 10 persons, out of whom, two persons, viz. Anandi Adivasi and Seetaram Patel died on 13.12.2017 and 31.12.2017, interpreted the expression "total number of members" as it appears in sub-rule (6) of Rule 43 of the Rules of 1962 to mean "total number, who are entitled to sit and vote at a given point of time." Learned Single Judge relied upon the decision in Ashok Maniklal Harkut vs. The Collector of Amravati AIR 1988 Bom 207 (FB) and the judgment in Sukendra Singh vs. State of M.P. 2008 RN 353 by Division Bench of our Court that the "quorum is to be considered on the basis of the persons already elected and not on the basis of the total strength to be elected.

The petitioner challenges the interpretation given by learned Single Judge to the expression "total number of members" as it appears in sub-rule (6) of Rule 43 of the Rules of 1962. Reliance is placed on the decision in Writ Petition 1306/2004 (Shri Manohar Singh Bundela and others vs. Registrar Cooperative Societies, Madhya Pradesh, Bhopal & others) decided on 12.07.2004.

Sub-Rule (6) of Rule 43 of Rules of 1962 stipulates:

"(6) The quorum for the meeting of the committee shall be, as provided in the bye-laws, but in any case it shall be more than 50% of the total number of the members."

The first part of sub-rule (6) of Rule 43 mandates that the quorum for the meeting of the Committee shall be, as provided in the bye laws. Evidently, we are not commended to any bye law providing quorum. The second part of this sub-rule which has the relevance stipulates that in any case, i.e. irrespective of whether there exists stipulation as to quorum of meeting in the bye laws or not, the quorum shall be more than 50% of the total number of the members. Thus, mandatory it is to have not less than 50% of total number of members for a valid meeting. The question is what "total number of members" would mean. Will it mean the total number of the members constituting the Committee, for example if the total number of members constituting the Committee, as in the present case, is 13, as per Clause 30(1) of the bye laws, will it mean that the total number of members present in the meeting shall be 7 or it will be a floating number i.e. the "total number of members" to be construed as of existing members. Admittedly, we have no bye laws for our guidance. And the framers of sub-rule (6) of Rule 43 have not given the fixed number but has fixed it to not less than 50%.

Similar issue of interpretation as to what shall be the actual number of members for the meeting wherein a bye-law specifically provided for 2/5th of the members of the Board of Directors to form a quorum came up for consideration before Division Bench of this High Court, in Satna Central Cooperative & Land Mortgage Bank Ltd. vs. Puranlal Agrawal 1969 JLJ 888. The facts in Satna Central Cooperative & Land Mortgage Bank Ltd. (supra) as narrated in paragraph 3 of the judgment were :

"3. The operative part of the impugned order of the Board of Revenue proceeds on these lines. According to Bye-law No. 30 of the byelaws, there has to be constituted a Board of Directors consisting of 18 persons. Of these, the Registrar, Co-operative Societies or his nominee not below the rank of the Assistant Registrar is one. It appears that at the time when the meeting of the Board was held on 13-7-1965, the Board consisted only of 11 members and was not fully constituted for some reason or the other, as prescribed in byelaw No. 30. Bye-law No. 35 prescribes that 2/5ths of members of the Board of Directors shall form a quorum. If the total strength of the Board of Directors is taken as the basis, then 7 members will constitute the quorum. On behalf of the Bank it was urged that number of members required for the quorum should be determined with reference to the actual number of Directors and not with reference to the prescribed strength of 18. Thus, as against the strength of 11 members, the number of members required to be present for the quorum, was 5. According to the Board of Revenue, the number of persons required to be present to form a proper quorum had to be determined "with reference to the total number, of members of the Board", as, prescribed under byelaw No. 30, and not the number of the Directors actually working in the Board. The Board of Revenue further held that any other view will lead to impossible situation as according to its view, a quartet for proper functioning of any representative body was prescribed to ensure thrift' some minimum number of persons take part in deliberations and take decisions on behalf, of the Board they represent. Thereafter, the Board proceeded to deal with the question, whether Bank Inspector P. M. Gore who was in-current-charge of the duties of the Assistant Registrar, and held that he was not: entitled to participate in the meeting as a nominee of the Registrar under Bye-law No. 30 (vi). Eventually, the Board of Revenue came to the conclusion that Resolution No. 8 of the Board of Directors', accepting the resignation of the respondent No. 1 was not legally and Validly passed and that in the absence of a proper quorum the resolution was a nullity and not binding."

In these given facts, in the main decision rendered by Shri Justice A.P. Sen, (as he then was), it was held :

"9. As already stated, Byelaw No. 35 makes provision as to the number of Directors which constitutes a quorum for a meeting of the Board of Directors. The parties are not agreed as regards the real meaning of the words '2/5ths of the members of the Board' appearing therein. According to the petitioner- Bank, these words should be interpreted as 2/5ths of the Directors constituting the Board 'for the time being'. The words 'for the time being' are, of course, not there in the bye-law. On the other hand, the respondent No. 1 contends that the provision should be literally construed as meaning 2/5ths of the total number of the members of the Board of Directors, as constituted under Bye-law No. 30. Admittedly, in the year 1965, the Board of Directors consisted of 11 members and, therefore, if the quorum was to be reckoned at 2/5ttis of eighteen, i.e., if the basic figure to be taken is the total number of Directors constituting the Board under Byelaw No. 30, then the necessary quorum would be of eight (and not seven as wrongly stated by the Board of Revenue) and the meeting of 13th July 1965 at which the impugned resolution was passed would per se invalid, because only seven members were present in that meeting. That would be so irrespective of the fact whether Co-operative Inspector P. M. Gore in-current-charge of duties of Assistant Registrar, had any right of vote or not. However if the word 'members' in the byelaw could be read as members "for the time being", as suggested by the petitioner-Bank, then in that event, the validity of the meeting or the resolution would be unassailable. We shall now see which construction should be preferred.

The decision of Bose J., in Model Industries, Dayalbag v. Rambhau and another (1) is worth mentioning, although the rule which the learned Judge, was interpreting was somewhat differently worded, namely-

The quorum necessary to form an ordinary meeting of the Municipal Committee shall be 1 /3rd of the members on the Committee.

It was argued that the words 'on the Committee' meant only those actually serving on the Committee at the time of the meeting and not those who would happen to constitute the Committee if and when all vacancies were filed, Bose J., while dealing with the rule as worded, stated :

"The rule says one-third of the members 'on the Committee'. Does this mean one-third of those actually on the Committee at the time of the meeting, or does it mean one-third of those who ought to be on it when the Committee is fully constituted? In my opinion, it means those actually serving on the Committee at the time of the meeting. A person not in existence cannot be said to be a member, still less can he be said to be on a Committee or on anything else. Only those actually in existence can be said to be members of a body who are on that body.

Had the word 'of' been used instead of 'on' that would have been another matter though ordinarily I would have construed even 'of in the same sense. But the context can 1946 N L J 227 : A I R 1946 Nag. 152 : I L R 1946 Nag. 73 of course change the meaning and seeing that sub-section (2) of section 32 speaks of 'members of the Committee actually serving at the time' while sub-section (1) only uses the words 'of the Committee' I think the Act does draw a distinction between the two phrases."

The learned Judge then goes on to state :

"At best it can be said that the words 'on' and 'of' are ambiguous and that they can be used in two senses. They can mean either members actually on or of the Committee at the time, or they can be construed to mean members who would be on the Committee, or who would be of the Committee, if and when it is fully constituted. If the words can mean either, and whether or not, standing by themselves, they can mean the latter, (have no doubt that the former is the more ordinary sense in which they are used J, then either construction would be permissible, and therefore a byelaw which uses the words in their normal sense would not be ultra vires.

In that view, Bose J. held that whereas the word 'of can be construed to mean two things, it, or rather the companion preposition 'on', cannot be so construed, and taking the primary meaning of the words 'on the Committee', held that it meant that the quorum ought to be reckoned at two-thirds of the members actually serving on the Committee at the time of the meeting, i. e., from amongst the continuing members. It is true, there must have been some object in using the word 'on' in that rule instead of the word 'of when the Act also uses the word 'of elsewhere. Bose J., however, observed that even if the word 'of had been used instead of 'on', he would still have construed the word 'of in the same sense.

I would respectfully adopt the same construction of the words '2/5ths of the members of the Board appearing in Byelaw No. 35 as meaning '2/5ths of the Directors constituting the Board for the time being.'

This construction of mine of Byelaw No. 35 is clearly borne out if we compare its language with that of Rule 37 of the Madhya Pradesh Co-operative Societies Rules, which provides for a quorum for the general meeting of share-holders. That provision reads-

"37 (1). Unless otherwise provided in the byelaws of a society, the quorum for general meeting shall be one-fifth of the total number of members on the date of notice of the meeting."

(Italics is mine).

Both Byelaw No. 35 and Rule 37 are provisions dealing with the same object, viz., the quorum for a meeting. It would appear that there is a marked difference in language of the byelaw from that employed in the rule which uses the words "total number of members", meaning that the quorum for a general meeting must be 1 /5th of the whole body of share-holders. The addition of these words "total number of" in Rule 37 and their omission from Byelaw No. 35 are somewhat significant. In framing the byelaw, the petitioner-Bank appears to have deliberately departed from the words used in the rule, and this "variation of language" raises an inference of a change of intention on their part that the requirements for a quorum at a Board Meeting were intended and meant to be different. I am of the view that the alteration in the language used was intentional.

It is a cardinal rule in the construction of statutes that assistance in Ascertaining the meaning of an enactment may be obtained by comparing its language with that used in earlier statutes relating to the same subject [See Crates' on Statute Law, 6th Ed., pp. 140-3]. There is no reason why a construction which would render words in the statute otiose must be accepted. The Legislature is deemed not to waste its words or to say anything in vain [See, Quebec Railway, Light, Heat and Power Co. v. Vandry I L R (1920) App. Cas. 662, 667 and Cargo Ex. 'Argos' Gaudel v. Brown (1872-73) L R 5 P. C. 134, 14-50. In my view, the same rule of interpretation should be adopted in construing rules and byelaws framed under an enactment.

I have reason to think that the framers of Byelaw No. 35 had before them, or, were aware of the provision contained in Rule 37, and with this knowledge, altered the language of the byelaw they framed, by deleting the words 'the total number of;. There is clearly a distinction between the two expressions used in Rule 37 and Byelaw No. 35. Now, the normal canon of construction of a statute or a rule or byelaw is, that when different expressions are Used, they are intended by the draftsman to connote different things or ideas. In Dickenson v. Fletcher (1873) L R 9C. P. 1. at p. 8, Brett J., stated the rule thus:

"Where two statutes dealing with the same subject-matter use different language it is generally a fair presumption that the alteration in the language used in the subsequent statute was intentional."

[See, Craies on Statute Law, 6th Ed., pp. 141-2]. The underlying principle upon which this rule is based is, that no part of a statutory provision should be deemed as redundant or unnecessary. I am inclined to think that the addition of the words "the total number of" in Rule 37 which are not there in Byelaw No. 35 was not a superfluity or mere surplusage nor had they been added to make clear a meaning which was already implied. The alteration in the language used in Byelaw No. 35 was intentional, and it bears the meaning that I have indicated.

The law appears to be that the continuing Directors may act though there are vacancies provided the articles incorporate a clause to that effect. ...

Concurring with the view that the quorum has reference to existing members, Shri Justice G.P.Singh (as he then was) observed :

"24. The total strength of the Board of Directors if all vacancies are full is of 18 members as prescribed by Byelaw No.

The quorum is prescribed by Byelaw No. 35, which reads as follows :

"Two fifth of the members of the Board of Directors shall form a quorum. For adjourned meeting, no quorum shall be necessary but the notice prescribed for a meeting of the Board shall be necessary."

On 13th July, 1965 when the meeting of the Board was held only seven members were present in the meeting. At that time, the Board consisted of eleven members and there were seven vacancies. If the words "twofifth of the members of the Board of Directors" in Byelaw No. 35 refer to twofifth of the total strength of the Board including the vacancies then (after rounding off any fraction contained in that twofifth) eight members will constitute a quorum, whereas if these words refer to two fifth of the members for the time being thus excluding the vacancies, five members will constitute a quorum. According to the Board of Revenue the Byelaw in fixing the quorum referred to two fifth of the total strength including the vacancies and there was inadequate quorum in the meeting and the resolution accepting the resignation was invalid. On the other hand, if the Byelaw in fixing the quorum referred to two fifth of the existing members, as is contended by the petitioner, it will have to be held that there was requisite quorum in the meeting and the resolution was validly passed. The main question in this petition, therefore, is as to the meaning of the words "two fifth of the members of the Board of Directors" as they occur in Byelaw No. 35.

It must be noticed that we are dealing with a Byelaw which is applicable to the petitioner-Bank alone. The total strength of the Board of Directors of the Bank including the vacancies is a fixed figure of eighteen. If the Byelaw prescribes the quorum with reference to twofifth of the total strength of the Board including the vacancies, the quorum will always be a fixed number of eight whatever may be the number of vacancies. If that was the idea, it could have been very easily conveyed by saying that eight members shall constitute a quorum. The very fact that the Byelaw does not state that the quorum shall be a fixed numerical figure and instead prescribes the same with reference to "two-fifth of the members" is a strong indication that the prescribed quorum is a fluctuating figure. The inference, therefore, is that "twofifth of the members" refer to twofifth of the members for the time being thereby excluding the vacancies. This inference is supported by another consideration. When it is desired to convey the idea of total strength of the members of a body including the vacancies, the expressions normally used are "Full number of members", "Whole number of members", or Total number of members. If a provision uses these expressions, prima facie it will mean a reference to the total strength of members including the vacancies; even these expressions may be accompanied by appropriate words suggesting that the reference is to the members for the time being. Now the words used in the Byelaw are simply "members of the Board" unaccompanied by any qualifying word such as "Full", "Whole" or "Total" and there are no other words showing that the vacancies are to be included. It, therefore, follows that the idea is to refer to the members for the time being and to exclude the vacancies. It is true that this meaning could have been made clear by using expressions such as "existing members", "members serving at the time" or "members for the time being", but even in the absence of such expressions the meaning is the same for the word "members" in itself, unless there is a contrary context, signifies existing members and not past members or members who may be elected in future. It is also true that on this interpretation, as no minimum is fixed by the byelaw, the quorum will be reduced to one if the membership falls below three and no steps are taken to fill in the vacancies. This objection, however, proceeds on hypothetical considerations; moreover there is nothing illegal in a quorum consisting of a single member. These considerations, therefore, do not militate against the view that the byelaw fixes the quorum with reference to the existing members."

The ratio of the judgment in Satna Central Co-op. (supra) thus is that, the quorum relates to the Directors constituting the Board for the time being and that the quorum has a reference to existing members. And cannot be a fixed number but is a floating number. Contrary view expressed in Shri Manohar Singh Bundela (supra), reliance whereon is placed by learned counsel for the appellant that the "total number has to be seen on the basis of total strength fixed in the bye laws/rules" and that "total number of members" has co-relation with the words "total strength fixed" and that "there is no escape from the conclusion that 'total number of strength' has to be seen as fixed not the subsisting members for the time being constituting the Board", deserves to be and is set-aside.

In view whereof, when the impugned order is tested on the anvil of above analysis cannot be faulted with.

Consequently, appeal fails and is dismissed. No costs.