Sri Raghur Nagaraja Naidu Vs The Railwaymen''s House Building Co-Operative Society Limited, State of Karnataka and Registrar of Co-Operative Societies and Returning Officer and Assistant Registrar of Co-Operative Societies

@JUDGMENTTAG-ORDER

B.S. Patil, J.@mdashPetitioner is presently working as Senior Section Officer (Electrical) in Indian Railways. 1st respondent is the Society registered under the Karnataka Co-operative Societies Act, 1959 (for short, ''the Act''). It is formed for the benefit of the employees of Indian Railways, in particular, to meet the housing needs of the employees by providing sites to its members. Petitioner claims to have joined the 1st respondent-Society as a primary member during the year 2008. Every five years, Directors are elected from amongst the members of the 1st respondent-Society by secret ballot. Out of the elected Directors, office bearers such as President, Vice-President and Treasurer are chosen. The term of the Directors elected during March 2008 has expired in March 2013. Calendar of events have been published on 16.08.2013 for the purpose of holding elections. As per the said calendar of events which is produced at Annexure-L, the last date for filing nominations is 30.08.2013. The date of election is scheduled on 07.09.2013. Though the petitioner intends to contest the election, as his membership is cancelled, his name is not found in the voters list. Having learnt that his name is not found in the voters list published, he has approached this Court seeking a writ of mandamus against the 1st respondent-Society to restore his membership to the Society and to include his name in the voters list. He has also sought for a direction to respondents 1 to 4 to accept his nomination for the election to the post of Director to the 1st respondent-Society scheduled to be held on 07.09.2013.

2. The main contention urged by learned Senior Counsel Smt. Pramila Nesargi appearing for the petitioner is, that the 1st respondent has illegally removed the membership of the petitioner without issuing any notice and without holding any inquiry, which is contrary to law and violative of the principles of natural justice. It is urged that the petitioner is victimized as he attempted to expose the illegalities committed by the present elected office bearers. Inviting the attention of the Court to the bye-laws of the society and also Section 17(3) and 18-A of the Act, it is contended by the learned Senior Counsel that removal of the petitioner from the membership is neither as per the bye-laws nor as per the provisions of the Act. It is particularly pointed out that if the removal were to be in accordance with the provisions of Section 17 of the Act, then the same was required to be decided by the Registrar after giving an opportunity to the petitioner.

3. Contending that in such circumstances this Court will have to interfere in the matter, reliance is placed by the learned Senior Counsel on the judgments in the case of Ebrahim Vs. Returning Officer, ; and K. Venkatachalam Vs. A Swamickan and Another, Reliance is also placed on the judgment in the case of Dr. Asranna vs. The Virajpet Town Co-Operative Bank Ltd.- 1989 (2) MysLJ 336. She also contends that removal of a member must be expressly mentioned in the agenda before it could be taken up for consideration and as there was no agenda in the meeting for removal of the petitioner as member, there was no notice to the petitioner of the intention to remove him and therefore, the removal was in breach of the principles of natural justice and hence, the writ petition is maintainable, even assuming that alternative remedy is available u/s 70 of the Act. M.E. Ebrahim''s case referred to above is relied for this purpose.

4. It is also contended by the learned Senior Counsel that Section 70 of the Act has no application and the petitioner cannot raise any dispute at this stage as there is no order as yet.

5. The 1st respondent-Society has entered appearance through the learned Counsel Mr. D.R. Ravishankar. Statement of objections are filed. It is contended by him that the writ petition itself is not maintainable as the 1st respondent-Society is not a State within the meaning of Article 12 of the Constitution of India. In this regard, he has placed reliance on the judgment in the case of S.S. Rana Vs. Registrar, Co-operative Societies and Another, and Satish Chandra and Another Vs. Registrar of Cooperative Societies, Delhi and Others, Reliance is also placed on the unreported judgment of the Division Bench of this Court in W.P. No. 14957-58/2013 disposed of on 05.04.2013.

6. It is further contended by him that as the relationship between the petitioner and 1st respondent is that of former member and the Co-operative Society, dispute arising between them has to be resolved as per the statutory remedy provided u/s 70 of the Act, which is an alternative and efficacious remedy.

7. It is also urged that as the petitioner had indulged in activities unbecoming of a member, the general body in its meeting dated 22.09.2012 resolved to expel the petitioner from the membership by passing a resolution. A copy of this resolution is produced at Annexure-R1. The minutes of the said resolution along with the covering letter were filed before the 3rd respondent-Registrar of Co-operative Societies, Bangalore, on 01.10.2012 and that the 1st respondent-Society had sent a cheque for a sum of Rs. 3,03,000/- along with a letter dated 03.10.2012 to the petitioner by registered post which included the membership charges and other payments required to be refunded to the petitioner on the expulsion of his membership.

8. He has further contended that as per the unamended provisions in Section 18-A(a)(iii) of the Act, a person shall cease to be a member of a co-operative society on his removal or expulsion as per the bye-laws of the society, therefore, there was no necessity for the Registrar to pass any order. He urges that Section 17(3) of the Act has no application to the facts of the case.

9. Having carefully considered the respective contentions of the parties, I find from Annexure-R1-resolution of the 1st respondent-Society produced along with the statement of objections that the petitioner has been removed from the membership of the society by a resolution passed by the General Body on 22.09.2012. What is sought to be challenged in the writ petition is this action of removal. The other reliefs sought seeking inclusion of the name of the petitioner in the voters list and also to accept the nomination of the petitioner are consequential reliefs which can be granted only after the petitioner succeeds in getting his membership restored. As rightly contended by the learned Counsel for the 1st respondent, the Apex Court in the case of S.S. Rana Vs. Registrar, Co-operative Societies and Another, has after referring to several previous decisions of the Apex Court, held as under in paragraph 12:

12. It is well settled that general regulations under an Act, like Companies act or the Co-operative Societies Act, would not render the activities of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper functioning of the Society and the State or statutory authorities would have nothing to do with its day-to-day functions.

Referring to the judgment in Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, and to the judgment of the Seven Judges Bench of the Apex Court in the case of Pradeep Kumar Biswas and Others Vs. Indian Institute of Chemical Biology and Others, the Apex Court has held that as the society in the said case did not satisfy any of the tests laid down in Pradeep Kumar Biswas''s case with regard to the entire or majority of the share capital of the society being held by the Government; the major financial assistance flowing from the Government; State conferred monopoly being enjoyed by the society; existence of deep and pervasive State control; and the functions of the society being closely related to Governmental functions, so as to characterize the society as a State or its instrumentality, no writ could be issued.

10. In the instant case, no such material is placed before the Court to show that such deep and pervasive control is exercised by the State over the 1st respondent-Society or that it is funded and financed in a major way by the State. Therefore, there are no attributes of the instrumentality of the State or the State present in the 1st respondent-Society to make it amenable to the writ jurisdiction.

11. What is challenged in the writ petition is the action of the 1st respondent in removing the petitioner from the membership of the Society. This is essentially a dispute between the member/ex-member of the society and the Society. The redressal of such dispute has to be as per the statutory provisions provided under the Act. A writ petition cannot be maintained. As I have held that the 1st respondent is not amenable to writ jurisdiction, as it is not a State under Article 12 of the Constitution of India, it is unnecessary to refer to the other contentions urged by the learned Counsel for the parties. The decisions relied on by the learned Senior Counsel for the petitioner are of no assistance at this stage, as the same cannot be examined under writ jurisdiction. Hence, without expressing any opinion on the merits of the contentions urged, this writ petition is dismissed reserving liberty to the petitioner to avail the alternative remedy.