{"id":30544,"date":"2010-06-16T00:00:00","date_gmt":"2010-06-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mukesh-vs-state-of-maharashtra-on-16-june-2010"},"modified":"2018-07-28T13:24:28","modified_gmt":"2018-07-28T07:54:28","slug":"mukesh-vs-state-of-maharashtra-on-16-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mukesh-vs-state-of-maharashtra-on-16-june-2010","title":{"rendered":"Mukesh vs State Of Maharashtra on 16 June, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mukesh vs State Of Maharashtra on 16 June, 2010<\/div>\n
Bench: B. P. Dharmadhikari<\/div>\n
                                       1\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         NAGPUR BENCH\n\n\n\n\n                                                                     \n                WRIT PETITION NO.  795  OF  2010\n\n\n\n\n                                             \n     Mukesh s\/o Zanaka Paserkar,\n\n\n\n\n                                            \n     aged 45 years, occupation -\n     Private, resident of 12 Signal\n     Borkar Nagar, Ghat Road,\n     Nagpur.                                   ...   PETITIONER\n\n\n\n\n                                 \n                     ig  Versus\n\n     1. State of Maharashtra\n        through the District Deputy\n                   \n        Registrar, Cooperative \n        Societies, Hindustan Colony,\n        Amravati Road, Nagpur.\n      \n\n\n     2. The Election Returning Officer,\n        Nagpur Mehtar Vividh Udhesia \n   \n\n\n\n        Sahakari Sanstha Maryadit,\n        having office c\/o District\n        Deputy Registrar, Cooperative\n\n\n\n\n\n        Societies, Hindustan Colony,\n        Amravati Road, Nagpur.\n\n     3. Nagpur Mehtar Vividh Udhesia\n        Sahakari Sanstha Maryadit,\n\n\n\n\n\n        Nagpur, through its President\/\n        Secretary, having office at \n        Budhwar Bazar Complex, in \n        front of Raj Vilas Talkies, Mahal,\n        Nagpur 440 002.\n\n\n\n\n                                             ::: Downloaded on - 09\/06\/2013 16:01:19 :::\n                                       2\n     4. Sanju s\/o Murli Khare,\n        aged about 41 years,\n\n\n\n\n                                                                      \n        occupation - Service,\n        r\/o 83, Durga Nagar,\n\n\n\n\n                                              \n        Koradi Road, Nagpur.                     ...   RESPONDENTS\n\n\n     Shri N.A. Vyawahare, Advocate for the petitioner.\n\n\n\n\n                                             \n     Shri A.S. Sonare, AGP for respondent No. 1.\n     Shri V.N. Morande, Advocate for respondent No. 2.\n     Shri K.V. & S.V. Deshmukh, Advocate for respondents No. 3 & 4.\n                         .....\n\n\n\n\n                                  \n                     ig     CORAM :  B.P. DHARMADHIKARI, J.\n<\/pre>\n
                                     JUNE  16, 2010.\n<\/p>\n
     ORAL JUDGMENT :\n<\/p>\n
               Heard   Shri     Vyawahare,   learned   counsel   for   the <\/p>\n
     petitioner, Shri Sonare, learned AGP for respondent No.1, Shri <\/p>\n
     Morande,   learned   counsel   for   respondent   No.2   and   Shri <\/p>\n
     Deshmukh, learned counsel for respondents No. 3 & 4.\n<\/p>\n
     2.        By this writ petition filed under Articles 226 and 227 <\/p>\n
     of Constitution of India, the petitioner has challenged the order <\/p>\n
     of Respondent No. 2 dated 03.02.2010 rejecting his objection to <\/p>\n
     Election  programme of Respondent  No. 3 Society as published <\/p>\n
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\n                                          3<\/span>
\n     on 02.01.2010.  The contention of the petitioner is that until and <\/p>\n
     unless all contesting candidates deposited the necessary amount <\/p>\n
     as per the circular dated 01.09.2007 issued by Commissioner & <\/p>\n
     Registrar for Co-operation and for that purpose the Bye-laws of <\/p>\n
     Respondent No. 3 society are amended, the elections cannot be <\/p>\n
     permitted to take place.   This Court has on 16.02.2010 issued <\/p>\n
     notice   and   vide   order   dated   04.03.2010     the   elections   are <\/p>\n
     permitted to proceed further but the same have been subject to <\/p>\n
     further orders in the matter.  Accordingly, after hearing parties, <\/p>\n
     writ petition came to be admitted on 23.03.2010 and it has been <\/p>\n
     thereafter listed for final hearing.\n<\/p>\n
     3.         The   Circular   dated   01.09.2007   is   not   in   dispute.\n<\/p>\n
     According to Shri Vyawahare, learned counsel, by the impugned <\/p>\n
     order, Respondent No. 2 – Election\/Returning Officer has held <\/p>\n
     that that circular is not applicable to Respondent No. 3 – Society <\/p>\n
     and hence there was no need to either amend the bye-laws or to <\/p>\n
     hold elections after compliance with that circular.  He points out <\/p>\n
     that Respondent No. 3 – society is a Urban Credit Cooperative <\/p>\n
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\n                                              4<\/span>
\n     Society and hence the circular is applicable to it fully.  According <\/p>\n
     to him, defence that the society is not  Urban Credit Cooperative <\/p>\n
     Society, but a Salary Earners’ Society and, therefore, circular is <\/p>\n
     not   applicable   to   it,   is   artificial   and   unsustainable.     He   has <\/p>\n
     invited     attention   to   relevant   provisions   of   Maharashtra <\/p>\n
     Cooperative  Societies Act, 1960 (hereinafter referred to  as the <\/p>\n
     Act)  particularly to Rule 10 of 1961 Rules framed under the said <\/p>\n
     Act   with   contention   that   classification   or   categorization   of <\/p>\n
     societies as per said rule is only illustrative and not exhaustive.\n<\/p>\n
     He has also urged that the last column i.e. column No. 3 of table <\/p>\n
     mentioned in  Rule 10 clearly reveals the intention to govern all <\/p>\n
     societies   of   type   stipulated   therein   by   same   law   and   the <\/p>\n
     description   of   societies   therein   cannot   be   treated   as <\/p>\n
     determinative for the purposes of application of said circular.  He <\/p>\n
     has relied upon the judgment of Division Bench of this Court in <\/p>\n
     the case of Baburao vs. Brihmadeo, reported at 1980 Mh. L.J. 75, <\/p>\n
     for this purpose.\n<\/p>\n
     4.          He has invited attention to provisions of Section 14 of <\/p>\n
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\n                                                5<\/span>
\n     the Act to show that said Act empowers the Registrar to direct <\/p>\n
     amendment to the bye-laws of a society.  In addition, he has also <\/p>\n
     pointed out the provisions of Section 79-A to urge that in the <\/p>\n
     interest of members and depositors, powers thereunder can also <\/p>\n
     be exercised and such direction  is sustainable thereunder.   He <\/p>\n
     has invited attention to said circular to point out that it has been <\/p>\n
     issued with the object of forcing personal interest in the Directors <\/p>\n
     while   advancing   loans   to   members   of   Society   by   pointing   out <\/p>\n
     that   deposits   mandated   thereby     of   such   Directors   with   the <\/p>\n
     society are also jeopardized if bad loans are sanctioned.  Looking <\/p>\n
     to   this   object   of   circular,   the   same   is   applicable   to   all   Urban <\/p>\n
     Credit  Cooperative Societies i.e. to all societies which sanction <\/p>\n
     loans to its members.  He has placed heavy reliance upon the last <\/p>\n
     para of said circular pointing out that it expects various officers <\/p>\n
     like  Assistant  Registrars,  District  Deputy Registrar to point out <\/p>\n
     the   obligations   imposed   by   it   to   respective   societies   in   their <\/p>\n
     jurisdiction and to insist for amendment to its bye-laws on these <\/p>\n
     lines before approving any Election Programme.   He states that <\/p>\n
     the   circular   emphasizes   that   the   election   programme   can   be <\/p>\n
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\n                                               6<\/span>
\n     approved only after bye-laws are amended in consonance with <\/p>\n
     said   circular.     As   the   efforts   made   by   the   petitioner   to  secure <\/p>\n
     compliance with that circular failed and as Respondents No. 1 & <\/p>\n
     2 have failed to discharge their statutory obligations, according <\/p>\n
     to him, the petition deserves to be allowed and after the bye-\n<\/p>\n
     laws are properly amended, an Election Programme needs to be <\/p>\n
     published.   He further states that the order of this Court dated <\/p>\n
     04.03.2010   and   23.03.2010   are   within   the   knowledge   of <\/p>\n
     Respondent   No.   3   –   Society   and   as   the   elections   are   already <\/p>\n
     subjected to further orders of this Court in the present matter, <\/p>\n
     the elected candidates are also aware that their tenure is subject <\/p>\n
     to further orders in the matter.\n<\/p>\n
     5.          Lastly, he has invited attention to the fact that though <\/p>\n
     added Respondent No. 4 has filed return separately, Respondent <\/p>\n
     No. 3 has not placed any separate affidavit on record after the <\/p>\n
     matter   came   to   be   admitted.     He   has   stated   that   before <\/p>\n
     admission,   the   stand   of   Respondent   No.   3   –   Society   was   in <\/p>\n
     consonance with the circular dated 01.09.2007 and that stand <\/p>\n
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\n                                              7<\/span>
\n     has   still   not   been   changed   in   accordance   with   law.   Affidavit <\/p>\n
     allegedly filed by newly elected secretary on its behalf taking a <\/p>\n
     different stand therefore can not be looked into.\n<\/p>\n
     5A.         Shri   Sonare,   learned   AGP   for   respondent   No.   1   and <\/p>\n
     Shri Morande, learned counsel for respondent No. 2 – Election <\/p>\n
     Officer have opposed the petition.   They contend that Circular <\/p>\n
     dated 01.09.2007 is not relevant in the present matter because <\/p>\n
     Respondent No. 3 – Society is not a Urban Credit Cooperative <\/p>\n
     Society at all and it is only a salary earner’s society.  According to <\/p>\n
     them,   the   circular   specifically   restricts   itself   to   Urban   Credit <\/p>\n
     Cooperative Societies and as salary earner society is not covered <\/p>\n
     thereunder,   compliance   therewith   is   not   warranted.     The <\/p>\n
     publication and further prosecution of Election Programme and <\/p>\n
     rejection   of   objection   raised   by   the   petitioner   is,   therefore, <\/p>\n
     sought to be justified by them.\n<\/p>\n
     6.          Shri Deshmukh, learned counsel for respondents No. 3 <\/p>\n
     &   4   has   at   the   outset   stated   that   Respondent   No.   4   is   the <\/p>\n
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\n                                              8<\/span>
\n     President elected in elections conducted pursuant to impugned <\/p>\n
     election programme.   He further states that earlier, Respondent <\/p>\n
     No. 4 was not party and stand of Respondent No. 3 – Society <\/p>\n
     taken   at   that   time   (before   election)   is   not   relevant.     His <\/p>\n
     contention is, Respondent No. 3 – Society has after issuance of <\/p>\n
     “Rule”, filed separate affidavit through one Gyaneshwar Badhel <\/p>\n
     and the said person is the Secretary newly elected in place of the <\/p>\n
     petitioner.  He points out that the said affidavit filed on behalf of <\/p>\n
     Respondent No. 3 Society is in accordance with the affidavit filed <\/p>\n
     by Respondent No. 4 – President and it cannot be argued that <\/p>\n
     there is no final stand of Respondent No. 3 – Society on record.\n<\/p>\n
     7.          He has also invited attention to provisions of Section <\/p>\n
     79-A and Section 14 of Maharashtra Cooperative Societies Act to <\/p>\n
     urge   that   these   provisions   are   not   at   all   attracted   in   present <\/p>\n
     matter.  According to him, the circular dated 01.09.2007 cannot <\/p>\n
     be   connected   with   any   of   these   provisions.     He   has   invited <\/p>\n
     attention to provisions of Rule 13 of 1961 Rules framed under <\/p>\n
     Maharashtra Cooperative Societies Act to show  the procedure to <\/p>\n
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\n                                              9<\/span>
\n     be followed for amendment of Bye-laws by a society or then by <\/p>\n
     Cooperative   department,   when   the   society   refuses   to   abide   by <\/p>\n
     directions   issued   by   the   department   in   this   respect.     He   has <\/p>\n
     placed reliance upon the judgment in the case of  Eknath Hinge  <\/p>\n
     vs. State of Maharashtra,<\/a> reported at 1985 Mh. L.J. 727, to urge <\/p>\n
     that the amendment to bye-laws is possible only in the mode and <\/p>\n
     manner   prescribed   under   Section   14   read   with   Rule   13.\n<\/p>\n
     According to him, the instructions issued on 01.09.2007 are at <\/p>\n
     the most executive instructions and the same do not have force <\/p>\n
     of law.   He has relied upon the judgment in the case of  Chief  <\/p>\n
     Commercial   Manager,   South   Central   Railway   vs.   G.   Ratnam,<\/a> <\/p>\n
     reported   at   (2007)   8   SCC   212,   for   the   said   purpose.     He   has <\/p>\n
     further pointed out that under Section 79A of the Act, the power <\/p>\n
     to issue directions has been given to State Government and the <\/p>\n
     State Government cannot delegate that power either to Registrar <\/p>\n
     or   any   other   subordinate   authority.     He   points   out   that   party <\/p>\n
     aggrieved by action of Registrar under Section 14 or Rule 13 has <\/p>\n
     a remedy of filing appeal under Section 152 of the Act and then <\/p>\n
     a   revision   before   the   State   Government   under   Section   154   of <\/p>\n
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\n                                              10<\/span>
\n     Maharashtra   Cooperative   Societies   Act.     Inviting   attention   to <\/p>\n
     Circular dated 01.09.2007, the learned counsel contends that by <\/p>\n
     said   circular,   directions   are   given   to   its   subordinate   by   the <\/p>\n
     issuing authority and those directions are not to Respondent No. <\/p>\n
     3   or   any   other   society.     In   this   background,   he   contends   that <\/p>\n
     when Registrar exercises powers under Section 14 or Rule 13, <\/p>\n
     that   authority   is   discharging   quasi   judicial   functions   and   in <\/p>\n
     discharge of those functions, it cannot be guided by its superiors.\n<\/p>\n
     The reliance is being placed upon the judgment of this Court in <\/p>\n
     the   case   of  Karvenagar   S.G.R.S.M.   vs.   State   of   Maharashtra, <\/p>\n
     reported at 1989 Mh.L.J.  320.   He further points out that the <\/p>\n
     circular, therefore, is in conflict with the provisions of Section 14 <\/p>\n
     and in any case it at the most directs amendment to Model Bye <\/p>\n
     Laws and not to the Bye-laws of Respondent No. 3 – Society.  He <\/p>\n
     further   relies   upon   the   judgment   of   this   Court   in   the   case   of <\/p>\n
     Kartarsingh vs. State of Maharashtra, reported at 1993 Mh. L.J.\n<\/p>\n
     1206,   to   urge   that   bye-laws   come   into   force   only   after   its <\/p>\n
     registration.   He has further contended that this Court has not <\/p>\n
     made election subject to result of writ petition and the elected <\/p>\n
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\n                                              11<\/span>
\n     Managing   Committee   members,   therefore,   ought   to   have   been <\/p>\n
     joined as  party respondents.    According to him,  newly  elected <\/p>\n
     Managing   Committee   members   are   also   entitled   to   an <\/p>\n
     opportunity of hearing before this Court.  He further states that <\/p>\n
     the   orders   of   this   Court   subjecting   the   elections   to   its   further <\/p>\n
     orders at the most can stop the respondents from taking plea of <\/p>\n
     availability of alternate remedy to the petitioner and it does not <\/p>\n
     mean that newly elected members can be unseated behind their <\/p>\n
     back.    He  has  cited  the judgment   of this Court   in the  case  of <\/p>\n
     Ramkishan  vs. State of Maharashtra, reported at 1994 Mh. L.J.\n<\/p>\n
     369, in support of his submission.   Lastly, the learned counsel <\/p>\n
     argues that the present petitioner never sought any amendment <\/p>\n
     to bye-laws but he is party to a resolution by which the Election <\/p>\n
     Officer came to be appointed.  According to him, even if circular <\/p>\n
     dated   01.09.2007   is   held   to   be   applicable,   at   the   most   the <\/p>\n
     contesting   candidates   have   to   maintain   a   compulsory   security <\/p>\n
     deposit of Rs.5,000\/- with Respondent No. 3 – Society and their <\/p>\n
     actual compulsory deposits with it are much more than that.  He <\/p>\n
     invites attention to the provisions of Bye-laws particularly clause <\/p>\n
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\n                                            12<\/span>
\n     18 to show that amount in deposit towards saving schemes like <\/p>\n
     Shakti and Anivarya Bachat cannot be refunded.  He, therefore, <\/p>\n
     states that even on merits, the election of newly elected members <\/p>\n
     is in accordance with law and circular dated 01.09.2007.\n<\/p>\n
     8.          In   his   reply,   Shri   Vyawahare,   learned   counsel   has <\/p>\n
     stated that Respondent No. 3 – Society is very much party before <\/p>\n
     this Court and the elections have been conducted by Respondent <\/p>\n
     No. 2 who is\/was also aware of the orders passed by this Court.\n<\/p>\n
     According   to   him,   the   Secretary   and   President   both   elected <\/p>\n
     because of permission granted by this Court to proceed further <\/p>\n
     with the election, are aware of the interim orders and hence they <\/p>\n
     represent the interest of Society as also of new committee, and <\/p>\n
     hence it is not necessary for the petitioner to join each newly <\/p>\n
     elected member as respondent.   He further points out that the <\/p>\n
     circular   dated   01.09.2007   has   not   been   challenged   by <\/p>\n
     Respondents   No.   3   &   4   and   hence   said   circular   needs   to   be <\/p>\n
     implemented.     According   to   him,   Respondent   No.   2   ought   to <\/p>\n
     have obtained clarification from his superiors before rejecting the <\/p>\n
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\n                                               13<\/span>
\n     objection of the petitioner on technical grounds.\n<\/p>\n
     9.           With the assistance of learned counsel, I have perused <\/p>\n
     the   records.     It   is   to   be   noted   that   there   is   no   challenge   to <\/p>\n
     circular dated 01.09.2007 before me though Respondents No. 3 <\/p>\n
     &   4   have   attempted   to   show   that   said   circular   has   no   legal <\/p>\n
     sanction and, therefore, can at the most constitute an executive <\/p>\n
     instruction. More over the State Government is joined as party <\/p>\n
     through   District   Deputy   Registrar   of   Co-operative   Societies   at <\/p>\n
     Nagpur.   The   authority   issuing   the   circular   is   also   not   party <\/p>\n
     respondent.\n<\/p>\n
     10.          The perusal of said circular reveals that it is issued by <\/p>\n
     the Commissioner for Cooperation and Registrar of Cooperative <\/p>\n
     Societies at Pune.   It does not expressly point out any statutory <\/p>\n
     provision under which the same has been issued and it also does <\/p>\n
     not   disclose   any   direction   by   any   superior   authority\/   State <\/p>\n
     Government   to   the   issuing   authority   for   that   purpose.     The <\/p>\n
     Commissioner   for   cooperation   has   noted   that   a   review   of <\/p>\n
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\n                                           14<\/span>
\n     working   of   various   Credit   Cooperative   Societies   in   State     was <\/p>\n
     undertaken as the amounts received as deposits were not being <\/p>\n
     returned.     The   faulty   procedure   for   distribution   of   loan   was <\/p>\n
     found to be the reason thereof.  The authority also states that the <\/p>\n
     Directors of such societies do not have their amounts as deposits <\/p>\n
     with   the   societies   and   in   many   cases   such   directors   have <\/p>\n
     themselves taken the loan indiscriminately without considering <\/p>\n
     the interest of society or depositors.  To avoid such working and <\/p>\n
     tendency, the authority found it necessary to impose a condition <\/p>\n
     that such Directors must always maintain particular amount as <\/p>\n
     deposit   with   the   society.     The   authority   has   found   that <\/p>\n
     imposition   of   such   condition   will   constrain   such   directors   to <\/p>\n
     function more seriously and with responsibility.   Thereafter the <\/p>\n
     authority has stated that to secure this purpose, the provisions of <\/p>\n
     model   bye-laws   laying   down   qualification   for   contesting <\/p>\n
     elections   to   the   post   of   Director   are   being   amended   and   a <\/p>\n
     condition   of   maintaining   deposit   of   stipulated   amount   always <\/p>\n
     with   such   society   is   being   imposed.     The   types   of   societies <\/p>\n
     depending   upon   the   area   of   their   operation   has   been   then <\/p>\n
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\n                                               15<\/span>
\n     mentioned   with   amount   of   deposit   against   each   such   type   of <\/p>\n
     society.     It   is   not   in   dispute   that   if   this   requirement   is   held <\/p>\n
     applicable   to  society   like   the   Respondent   No.   3  –  Society,   the <\/p>\n
     person desirous of contesting election to the post of Director of <\/p>\n
     such   society   will   be   required   to   have   &   maintain   deposit   of <\/p>\n
     Rs.50,000\/-.     The   circular   further   states   that   if   said   Director <\/p>\n
     withdraws this amount of deposit before expiry of his term as <\/p>\n
     Director,   he   will   be   disqualified   to   continue   as   Director <\/p>\n
     thereafter.  It is also mentioned that no loan can be borrowed or <\/p>\n
     disbursed against security of such deposit.    In the penultimate <\/p>\n
     para,   the   said   authority   has   stated   that   all   Urban   Credit <\/p>\n
     Maharashtra   Societies  in  State Government  should  accordingly <\/p>\n
     get their model bye-laws modified.   In last para, obligation has <\/p>\n
     been cast upon subordinate authorities to bring this decision to <\/p>\n
     the knowledge of respective cooperative societies functioning in <\/p>\n
     their jurisdiction with further direction to ascertain whether such <\/p>\n
     societies   got   their   bye-laws   modified   before   sanctioning   their <\/p>\n
     Election Programmes.  The circular at its ends lays down that if <\/p>\n
     the   bye-laws   are   found   to   be   not   so   amended,   the   Election <\/p>\n
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\n                                               16<\/span>
\n     programme   be   approved   only   after   the   amendment   is   carried <\/p>\n
     out.   For the purposes of Credit Cooperative Societies of Other <\/p>\n
     Backward Classes and Women, the said security deposit is stated <\/p>\n
     to   be   10%   of   what   is   laid   down   in   its   earlier   para.   Thus   for <\/p>\n
     Directors of  such a Society,  the said security deposit works out <\/p>\n
     to   Rs.5,000\/-.     It   is,   therefore,   apparent   that   the   circular <\/p>\n
     nowhere directly calls upon any society to amend its Bye-laws.\n<\/p>\n
     The model bye-laws are mentioned only in penultimate para of <\/p>\n
     said  circular   but  then  again  it  is  qualified  by all  Urban  Credit <\/p>\n
     Cooperative Societies in the State.  It is, therefore, apparent that <\/p>\n
     the word “model” appearing in that para cannot be construed to <\/p>\n
     mean that there was direction to amend model bye-laws.  After <\/p>\n
     each society gets registered, it has   its own bye-law and when <\/p>\n
     this position  is read with said last para, it clearly indicates an <\/p>\n
     intention that all societies must amend their bye-laws in order to <\/p>\n
     bring it in conformity with Circular dated 01.09.2007.\n<\/p>\n
     11.          The provisions of Section 79-A of the Act show that it <\/p>\n
     deals   with   powers   of   Government   to   give   direction   in   public <\/p>\n
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\n                                             17<\/span>
\n     interest.     The   said   section   enables   State   Government   to   issue <\/p>\n
     instructions   in   public   interest   or   for   the   purposes   of   securing <\/p>\n
     proper   implementation   of   co-operative   production   and   other <\/p>\n
     development   programmes   approved   or   undertaken   by <\/p>\n
     Government,   or   to   secure   the   proper   management   of   the <\/p>\n
     business of the society generally, or for preventing the affairs of <\/p>\n
     the   society   being   conducted   in   a   manner   detrimental   to   the <\/p>\n
     interests   of   the   members   or   of   the   depositors   or   the   creditors <\/p>\n
     thereof.   The directions can be issued on receipt of report from <\/p>\n
     the  Registrar  or  otherwise.     It  is  to  be  noted that  the circular <\/p>\n
     dated 01.09.2007 nowhere states that the obligation sought to <\/p>\n
     be imposed therein are  in view of any direction issued by the <\/p>\n
     State   Government.     The   said   circular   is   issued   by   the <\/p>\n
     Commissioner   for   Cooperation   and   Registrar   of   Cooperative <\/p>\n
     societies and that authority is not made a party.  It is, therefore, <\/p>\n
     prima   facie   apparent   that   this   circular   cannot   be   viewed   as <\/p>\n
     direction  falling under Section 79-A of the Act.\n<\/p>\n
     12.         Section 13 of the Act deals with amendment of Bye-\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:01:19 :::<\/span>
\n                                             18<\/span><\/p>\n
     laws of the society.  As per its sub-section (1), no amendment to <\/p>\n
     Bye-law to society is valid until registered under the Act and the <\/p>\n
     procedure   prescribed   for   securing   such   registration   and <\/p>\n
     amendment is also laid down therein.  Section 14 gives power to <\/p>\n
     Registrar   to   direct   amendment   of   Bye-laws.     Sub-section   (1) <\/p>\n
     requires   Registrar   to   form   an   opinion   that   it   is   necessary   or <\/p>\n
     desirable in the interest of such society to have amendment and <\/p>\n
     thereafter  the Registrar  can  call  upon   the society  to  make  the <\/p>\n
     amendment.   If the society thereafter fails to make amendment <\/p>\n
     within time stipulated, the Registrar can after giving society an <\/p>\n
     opportunity   of   being   heard   and   after   consulting   such   State <\/p>\n
     Federal Society as may be notified by State Government, register <\/p>\n
     the   amendment   and   issue   to   the   society   such   amendment <\/p>\n
     certified by him.  After the date of registration of amendment in <\/p>\n
     this   manner,   bye-laws   of   society   are   deemed   to   have   been <\/p>\n
     amended.   However, even such amendment is made subject to <\/p>\n
     appeal.   It is, therefore, apparent that even when the power is <\/p>\n
     sought to be exercised, amendment cannot be brought into force <\/p>\n
     unilaterally and steps as contemplated by Section 13 or Section <\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:01:19 :::<\/span>
\n                                            19<\/span>
\n     14 are required to be undertaken.   In this matter, even if it is <\/p>\n
     presuming   that   steps   under   Section   13   are   not   initiated,   as <\/p>\n
     Respondent   No.   3   is   opposing   such   amendment,   still   under <\/p>\n
     Section 14(2) before registering such amendment, the Registrar <\/p>\n
     has   to   grant   an   opportunity   of   hearing   to   Respondent   No.   3, <\/p>\n
     consult federal society and thereafter only the amendment can <\/p>\n
     be registered.   These steps are not taken in the present matter.\n<\/p>\n
     The  circular  does   not  contemplate  an  amendment   to Bye-laws <\/p>\n
     automatically but only directs that societies should get their own <\/p>\n
     Bye-laws amended accordingly.  The circular is dated 01.09.2007 <\/p>\n
     and   neither   the   petitioner   –   Society   nor   the   department   has <\/p>\n
     taken any steps thereafter till date to have its bye-laws amended <\/p>\n
     accordingly.\n<\/p>\n
     13.         It   has   been   pointed   out   to   this   Court   that   on <\/p>\n
     03.08.2009,   the   Managing   Committee   of   Respondent   No.   3 <\/p>\n
     society   has   passed   a   resolution   appointing   Election   Officer   for <\/p>\n
     the   purposes   of   elections   in   dispute   before   this   Court.     The <\/p>\n
     petitioner before this Court was the Secretary and was party to <\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 16:01:19 :::<\/span>
\n                                           20<\/span>
\n     this resolution dated 03.08.2009.  Even after 03.08.2009, he has <\/p>\n
     not taken any steps to secure compliance with said circular dated <\/p>\n
     01.09.2007,     The   Election   programme   has   been   published   by <\/p>\n
     Respondent No. 3 on 02.01.2010 and present writ petition has <\/p>\n
     been filed thereafter by him on 11.02.2010.\n<\/p>\n
     14.         The petitioner has made a grievance for the first time <\/p>\n
     before   Respondent   No.   2   vide   his   representation   dated <\/p>\n
     03.02.2010.  In this representation, he has made reference to the <\/p>\n
     fact that for elections due for the year 2010-2015, 118 members <\/p>\n
     have filed their nominations and has requested Election Officer <\/p>\n
     to verify whether every nomination form is with deposit slip of <\/p>\n
     Rs.10,000\/- and then he has invited attention to requirement of <\/p>\n
     Government   circular  dated  01.09.2007.     He  has  requested  the <\/p>\n
     Returning Officer to reject all nomination papers if they are not <\/p>\n
     fulfilling  such security deposits.  On 03.02.2008, the Returning <\/p>\n
     Officer   has   rejected   this   representation   by   pointing   out   that <\/p>\n
     Circular dated 01.09.2007 does not apply to Respondent No. 3 –\n<\/p>\n
     Society and there is no provision in  sanctioned Bye-laws of the <\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:01:19 :::<\/span>
\n                                              21<\/span>
\n     society for such deposit  .   There is no dispute that sanctioned <\/p>\n
     bye-laws   do   not   contain   a   provision   requiring   the   aspirant   to <\/p>\n
     deposit the amount of Rs.10,000\/- with the society.  In the light <\/p>\n
     of provisions of Section 14(2) discussed above, it is apparent that <\/p>\n
     the   elections   already   scheduled   could   not   have   been   made   to <\/p>\n
     wait   till   the   Bye-laws   are   changed   in   consonance   with   the <\/p>\n
     circular dated 01.09.2007.\n<\/p>\n
     15.         The   Returning   Officer   has   found   that   the   circular <\/p>\n
     dated   01.09.2007   is   not   applicable   to   respondent   No.   3   –\n<\/p>\n
     Society.  The Bye-laws of respondent No. 3 – Society show that it <\/p>\n
     is   classified   as   Resource   society   with   its   sub   classification   as <\/p>\n
     Credit   Resource  Society.     This is  in  consonance   with Rule   10, <\/p>\n
     Entry 8(a) of the  1961 Rules.  The registration certificate dated <\/p>\n
     02.11.2007 produced by Shri Vyawahare,  learned counsel also <\/p>\n
     reveals   a   similar   classification   and   sub-classification.     The <\/p>\n
     column   3   of   Rule   10   gives   examples   of   society   falling   in   said <\/p>\n
     clause   or   sub-clause   and   those   illustrations   are   “agricultural <\/p>\n
     credit, thereafter urban credit and salary earners societies”.  It is, <\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:01:19 :::<\/span>
\n                                            22<\/span>
\n     therefore,   clear   from   bare   examples   given   therein   that   Urban <\/p>\n
     Credit  Societies  as also salary earners societies are covered by <\/p>\n
     this   classification   and   sub-classification.     The   perusal   of <\/p>\n
     judgment in the case of  Baburao vs. Brihmadeo, (supra) shows <\/p>\n
     consideration of this aspect in paras 7 & 8.  The Division Bench <\/p>\n
     has   concluded   that   the   definition   in   Section   2  of   Maharashtra <\/p>\n
     Cooperative   Societies   Act,   is   though   in   relation   to   objects   of <\/p>\n
     those   societies   or   the   nature   of   their   business   or   their <\/p>\n
     composition   but   not   in   relation   to   territorial   limits   of   their <\/p>\n
     operation.  The contention that the Act does not contemplate any <\/p>\n
     society known as “Urban Society” was found to be misconceived.\n<\/p>\n
     The Division Bench has further found that the classification of <\/p>\n
     societies is illustrative and not exhaustive.  In para 8, provisions <\/p>\n
     of Rule 10 are looked into and again Division Bench has found <\/p>\n
     that   classification   and   sub-classification   of   various   societies <\/p>\n
     under   Rule   10   are   the   natural   concomitant   to   section   2   and <\/p>\n
     pertain to the societies defined in that section.  The classification <\/p>\n
     and   sub-classifications   under   rule   10   is   found   also     merely <\/p>\n
     illustrative and not exhaustive.  Here, as already observed above, <\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:01:19 :::<\/span>
\n                                             23<\/span>
\n     the examples appearing in column 3 against entry 8 of rule 10 <\/p>\n
     include Urban Credit society and salary earner society.  Thus, the <\/p>\n
     contention raised before the Division Bench there can not have <\/p>\n
     be raised now in the light of entry as it stands after 04.01.1985.\n<\/p>\n
     16.         Though the respondents have come up with a case that <\/p>\n
     it is salary earners society, the perusal of bye-laws of the society <\/p>\n
     also   show   that   it   extends   credit\/   loan   to   its   members.     It, <\/p>\n
     therefore,   cannot   be   accepted   that   it   is   only   salary   earners <\/p>\n
     society   and  the   circular   dated   01.09.2007   is   not   meant   for   it.\n<\/p>\n
     The said circular and its objects are already stated by me in brief <\/p>\n
     above   and   it   is   apparent   that   contingencies   which   laid   to   its <\/p>\n
     issuance can also arise in working of Respondent No. 3 – Society.\n<\/p>\n
     The reason that said circular is not applicable to Respondent No. <\/p>\n
     3   –   Society   as   given   by   Respondent   No.   2,   therefore,   is <\/p>\n
     unsustainable.\n<\/p>\n
     17.         Shri Deshmukh, learned counsel for respondents No. 3 <\/p>\n
     & 4 has  already  pointed out  that the elected members always <\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:01:19 :::<\/span>
\n                                             24<\/span>
\n     have and had compulsory deposit of more amount than what is <\/p>\n
     contemplated by circular dated 01.09.2007.  The Bye-laws of the <\/p>\n
     society show that only person belonging to Sweeper Caste can <\/p>\n
     become its member.  Thus, the society is of members belonging <\/p>\n
     to   Backward   Class.     Hence,   the   amount   of   deposit   to   be <\/p>\n
     maintained   by   its   Directors   has   to   be   10%   of   Rs.50,000\/-   i.e. <\/p>\n
     Rs.5,000\/-   each.     The   perusal   of   return   of   Respondent   No.   4 <\/p>\n
     particularly   document   R-IV   (2)   with   it   shows   that   the   elected <\/p>\n
     members maintain deposit in excess of the said sum.   Bye-law <\/p>\n
     No.   18  also   shows  that  the  amount  in  deposit   by  them  under <\/p>\n
     schemes by name “Shakti Bachat and Anivarya Bachat” cannot <\/p>\n
     be   refunded   or   allowed   to   be   withdrawn   till   the   member <\/p>\n
     continues to be a Member.  It is, therefore, apparent that even in <\/p>\n
     absence of express stipulation in the Bye-laws of Respondent No. <\/p>\n
     3   society,   the   purpose   of   Circular   dated   01.09.2007   has   been <\/p>\n
     achieved   in   present   matter.   Thus   the   policy   envisaged   therein <\/p>\n
     already   stands   implemented   and,   in   any   case,   is   not   being <\/p>\n
     defeated.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:01:19 :::<\/span>
\n                                           25<\/span><\/p>\n
     18.         In this situation, it is apparent that no interference is <\/p>\n
     warranted in writ jurisdiction in the matter. Various contentions <\/p>\n
     about said circular or scheme therein advanced by rival parties <\/p>\n
     can  not  be  considered  effectively  as  neither State  Government <\/p>\n
     nor   Authority   issuing   the   same   are   parties   before   me.     The <\/p>\n
     contention that elected members ought to have been made party <\/p>\n
     respondents in writ petition, therefore, has not been examined <\/p>\n
     by me and the issue is left open for consideration in appropriate <\/p>\n
     case.  Writ Petition is thus dismissed. Rule discharged.  However, <\/p>\n
     there shall be no order as to costs.\n<\/p>\n
                                                     JUDGE                           <\/p>\n
                                         *******<\/p>\n
     *GS.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:01:19 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mukesh vs State Of Maharashtra on 16 June, 2010 Bench: B. P. Dharmadhikari 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH WRIT PETITION NO. 795 OF 2010 Mukesh s\/o Zanaka Paserkar, aged 45 years, occupation – Private, resident of 12 Signal Borkar Nagar, Ghat Road, Nagpur. … PETITIONER ig […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-30544","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMukesh vs State Of Maharashtra on 16 June, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mukesh-vs-state-of-maharashtra-on-16-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mukesh vs State Of Maharashtra on 16 June, 2010 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/mukesh-vs-state-of-maharashtra-on-16-june-2010\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2010-06-15T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-07-28T07:54:28+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"21 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/mukesh-vs-state-of-maharashtra-on-16-june-2010#article\",\"isPartOf\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/mukesh-vs-state-of-maharashtra-on-16-june-2010\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Mukesh vs State Of Maharashtra on 16 June, 2010\",\"datePublished\":\"2010-06-15T18:30:00+00:00\",\"dateModified\":\"2018-07-28T07:54:28+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/mukesh-vs-state-of-maharashtra-on-16-june-2010\"},\"wordCount\":4136,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#organization\"},\"articleSection\":[\"Bombay High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\/\/www.legalindia.com\/judgments\/mukesh-vs-state-of-maharashtra-on-16-june-2010#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/mukesh-vs-state-of-maharashtra-on-16-june-2010\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/mukesh-vs-state-of-maharashtra-on-16-june-2010\",\"name\":\"Mukesh vs State Of Maharashtra on 16 June, 2010 - 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