WP.1011, 1012-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 1011 OF 2011 Rajaram Annappa Balgar & Ors. ...Petitioners Vs. The Dy. Registrar, Cooperative Societies and Ors. ...Respondents AND WRIT PETITION No. 1012 OF 2011 Suresh Ganpati Hanbar & Ors. ...Petitioners Vs. The Dy. Registrar, Cooperative Societies and Ors. ...Respondents *** Mr. A. A. Kumbhkoni, Sr. Counsel i/b Amit Borkar, for the Petitioners. Mr. A. V. Anturkar, Sr. Counsel i/b V. A. Talkute, for the Respondent No.2. *** CORAM: V. M. KANADE J. DATE : FEBRUARY 3, 2011 P.C. . Heard the learned senior counsel appearing on behalf of the petitioners as well as respondent No.2. By both these petitions, filed under Art. 226 and 227 of the Constitution of India, the petitioners are seeking the writ of certiorari or an appropriate writ for quashing and WP.1011, 1012-11 - 2 - setting aside the orders dated 13-1-2011 and 16-1-2011 and direct the Dy. Registrar, Cooperative Societies to include the names of 130 persons, mentioned in the complaint dated 13-1-2011, and also further direction to appoint any person from the office of respondent No.1 as the Election Officer of respondent No. 2 Society, for the purpose of holding elections of the Society. 2. The brief facts are as under- . The petitioners are members of respondent No.2 Society. Respondent No.2 is a Society, registered under the provisions of the Maharashtra Cooperative Societies Act, 1960 and has admittedly neither a specified Society nor a notified Society. Respondent No.2 Society is, therefore, governed by the bye-laws of the said Society and not by the statutory provisions of the Act and Rules thereunder. The grievance of the petitioners is that respondent No.2 Society has illegally enrolled 180 members, who are not qualified to be the members of the Society and secondly, has illegally expelled about 130 members, without following any procedure of expulsion. According to the petitioners, the inclusion of members has been done with a mala fide intention of enrolling the members who support the existing Managing Committee and at the same time removal/expulsion of members is done since they are likely to WP.1011, 1012-11 - 3 - support the petitioners herein. 3. Mr. Anturkar, learned Senior counsel appearing for respondent No.2 raised the preliminary objection regarding maintainability of the writ petitions. He submitted that respondent No.2 being an ordinary cooperative Society was not a “State” within the meaning of Art. 12 of the Constitution of India and therefore, the writ petitions, under Art. 226 and 227 are not maintainable. 4. On the other hand, Mr. Kumbhkoni, learned Senior Counsel appearing on behalf of the petitioners submitted that the petitioners were impugning the order passed by the Assistant Registrar, who was pleased to direct the Chairman and Secretary of the Society to decide the objection which was raised by the petitioners herein. It is submitted that the Registrar had power to issue directions to the Society under section 79(2) of the said Act if he fails to exercise the statutory obligation which was cast under the said Section. It was submitted that under the bye-law 26 for the purpose of including members of the Society, certain procedure had been followed. 5. It is submitted that the Registrar also, therefore, ought to have given directions under Section 79(2) to include names of these persons who are illegally expelled. The reliance is also placed on Section WP.1011, 1012-11 - 4 - 11 of the Maharashtra Cooperative Societies Act, regarding the powers of the Assistant Registrar. It was therefore, submitted that since the Assistant Registrar had failed to exercise the statutory obligation which was cast on him, the petitioners were entitled to seek appropriate orders from this Court. In support of this submission, a reliance is placed on the decision of the Division Bench of this Court in the case of – Dalsing s/o. Shamsing Rajput, Petitioner vs. State of Maharashtra & Ors. Respondents [2006(3) Mh.L.J. 592] and also another decision of the Division Bench of this Court in the case of – Karbhari Maruti Agawan & Ors., Petitioners vs. State of Maharashtra & Ors., Respondents [1994 Mh.L.J. 1527]. 6. On the other hand, the learned senior counsel appearing on behalf of respondent No.2 submitted that the Full Bench of this Court in the case of – Shamrao Vithal Co-operative Bank Ltd. & Anr., Appellants vs. Padubidri Pattabhiram Bhat & Anr, Respondents [1993(1) Mh.L.J.1] had, after taking into consideration various judgments of the Supreme Court and other High Courts, held that a Cooperative Society, registered under the provisions of the Maharashtra Cooperative Societies Act, does not fall within the expression “State” under Art. 12 of the Constitution of India, and therefore, writ cannot be maintained against the Appellant WP.1011, 1012-11 - 5 - bank, therein. 7. So far as merits of the case are concerned, it is submitted that taking advantage of the fact that no cut-off date has been mentioned in the Act or the Rules. So far as the ordinary Cooperative Society is concerned, with a mala fide intention of influencing result of the election, respondent No.2 had acted illegally and the Assistant Registrar had failed to correct the said mistake by exercising his statutory powers. It is submitted that this Court may give direction to the Returning Officer that the voters may vote in three different ballot boxes and the ballot boxes in respect of the expelled members and the newly enrolled members may be sealed. It is submitted that this was not done, then even if the election dispute was filed lateron by the petitioners, they would not be in a position to demonstrate that result of the election was materially affected, as a result of inclusion, exclusion of the voters in the final voters’ list. 8. In my view, there is much substance in the submissions advanced on behalf of respondent No.2. Admitted position is that respondent No.2 is ordinary Cooperative Society and as such writ would not be maintainable against such an ordinary Cooperative Society since it does not fall within the definition of the term “State”, of Art. 12 of the WP.1011, 1012-11 - 6 - Constitution of India. The Full Bench of this Court in the case of – Shamrao Vithal Cooperative Bank Ltd. & Anr., Appellants vs.Padubidri Pattabhiram Bhat & An., Respondents [1993(1) Mh.L.J. 1] has clearly so held in paragraph 27 and 29 of the judgment, which reads as under- “27. Accordingly, we answer the issue which is referred to us as follows : 28. A Co-operative Society, registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 and under the Multi State Cooperative Societies Act, 1984 which carries on the business of banking, and is therefore, governed by the Banking Regulation Act, 1949 does not thereby fall within the expression “State” under Article 12 of the Constitution of India. The appellant-Bank cannot, therefore, be considered as “State” under Article 12. 29. A writ cannot, therefore, be maintained against the appellant-Bank. This disposes of the entire appeal. Hence, the appeal is allowed and the writ petition is dismissed.” 9. In my view, so far as the decision in the case of Dalsing s/o Shamsing Rajput (supra) is concerned, it appears that the said observation regarding maintainability of the writ petition against an ordinary Cooperative Society was made since the Full Bench judgment of this Court, in the case of Shamrao Vithal Co-operative Bank Ltd. (supra) was not brought to the notice of the Division Bench. Though the WP.1011, 1012-11 - 7 - reliance was placed on the judgment of the Apex Court in the case of – Gayatri De vs. Mousumi Cooperative Housing Society Ltd. & Ors. [2004 AIR SCW 2656], it was not brought to the notice of the Division Bench that in the said case, a Special Officer was appointed under the provisions of the Act and he was, therefore, regarded as a public authority. In the present case, admitted position is that the Returning Officer, who is appointed by respondent No. 2 Society is not a statutory officer but is a private and independent person. The ratio of the judgment, therefore, in my view, will not apply to the facts of the present case. 10. The submission of the learned counsel for the petitioners that since the statutory obligations cast upon the Registrar under Section 79(2) of the Act and bye-law 26 is not followed, against the impugned orders writ petitions could be filed under Art. 226 of the Constitution of India, cannot be accepted. Provisions of Section 79(2) of the Act does not empower the Registrar to give directions to the Returning Officer of an ordinary Cooperative Society to correct the final voters’ list. This is evident from the perusal of provisions of Section 79(1), (2) and (3) of the Act, even otherwise, no such application was filed by the petitioners under Section 79. Similarly, so far as bye-law 26 or Section 11 of the WP.1011, 1012-11 - 8 - said Act is concerned, the said provision or bye-law also does not give empower the Registrar to validate or correct the final voters’ list. 11. So far as the judgment in the case of Karbhari Maruti (supra) is concerned, ratio of the said judgment would not apply to the facts of the present case, since in the said case, the Cooperative Society was a specified Society within the meaning of Section 144-A(2)(c) and under these circumstances, direction was given by the Division Bench of this Court. Hence, in my view, writ petition is not maintainable. The petitioners have an alternate remedy of Election Dispute under Section 91 of the Maharashtra Cooperative Societies Act. Both the writ petitions are, therefore, dismissed. [ V. M. KANADE J.]