SAXENA, J. - (1.) THIS Special Appeal has been directed against the order dated 20-4-1993 passed by the learned Single Bench of this Court in S. B. Civil Writ Petition No. 3529 of 1992, whereby the petitioner's writ petition has been found meritless and the same has been dismissed.
(2.) THE appellant filed the writ petition with the averments that he is a Member of the respondent - Co-operative Bank; that the respondent Bank is a State instrumentality within the meaning of Art. 12 of the Constitution of India and that the Registrar, Co-operative Societies and other Authorities exercise control on its day to day affairs. It was averred that the respondent Bank is governed by Bye-laws and Clause III thereof says that its area of operation shall be confined to District Sirohi and that for any revision in this regard, prior approval in writing of the Reserve Bank of India as also of the Registering Authority shall be necessary. It was the case of the petitioner that at the time of enrolment of his membership in the year 1987, he was residing in village Basan, Tehsil Reodar of District Sirohi and that now he has shifted to Abu Road, which is an urban area. It was alleged that the Asstt. Registrar, Co-operative Societies, Sirohi vide his order dated 8-6-1992 (Annex. 1) amended clause III of the Bye-laws whereby area of operation of the respondent Bank was confined to Municipal limits, urban and semi-urban centres of District Sirohi and the rural areas have now been excluded from its area of operation. It was the case of the petitioner that after the said amendment in Clause III of the Bye-laws, the election process for re-election of the Directors of the respondent Bank commenced in the month of June, 1992 i. e. after he had submitted his nomination from Abu Road constituency; that his nomination form was found to be valid and his name appeared at S. Nos. 6 and 7 in the list of valid nomination papers dt. 10-6-1992 (Annex. 2) and that thereafter the elections were held on 17-6-1992 and he was declared duly elected as a Director from Abu Road constituency vide order dt. 18/6/1992 (Annex. 3 ). THE meeting of the Board of Directors took place on 2. 7. 1992, wherein vide resolution No. 9 (Annex. 5), the implication of the amendment of Clause III of bye laws vide order dated 8 6. 1992 (Annex. 1) was considered and it was resolved to ascertain about the areas of Sirohi District which were categorised as Urban or Semi-urban as per census held in the year 1991. It was further resolved that a list of members of the respondent Bank belonging to village areas should be prepared against whom Bank loans were outstanding as also the list of those members against whom there were no such dues. It was also resolved that those lists should be placed before the Board of Directors in the next meet-ting. It was further resolved that the guidance should also be sough from the Co-operative Department for adopting the procedure for relieving the members belonging to the rural area. THE Chairman of the Board (respondent No. 2) had also informed in the said meeting that the previous Board of Directors had filed a writ petition in this Court through one Ishwar Singh challenging the proposed amendments in the bye laws. But, instead of complying with the resolution Annex. 5, respondent No. 2 got published a notice dated 3/7/1992 in the Rajasthan Patrika notifying that the membership of these share holders of the respondent Bank, who belonged to the rural areas and against whom no bank due' was outstanding, had automatically come to an end and directed such shareholders to submit their share certificates within a month so that their share amount be refunded, failing which their share amount shall stand forfeited. It was the case of the petitioner that respondent No. 2 with an ulterior motive to deprive him from discharging his duties as Director of the respondent Bank issued the said notice Annex. 6, which was unauthorised and against the resolution Annex. 5 passed by the Board of Directors. THE petitioner asserted that since he resided in Abu Road and had contested the election from Abu Road constituency, his membership could not be put to an end. He further contended that more than thousands of members belonging to the rural area were eligible to vote and contest the election, that such electorate constituted a major portion of the electoral roll and that they had casted their votes to the candidates, who belonged to the Municipal/urban area. In such circumstances, if it was held that the members of the respondent Bank, belonging to the rural areas of the District Sirohi could not participate in the election then the whole election shall become illegal. Moreover, the amendment in the bye-laws of the Bank does not have the retrospective effect. In such circumstances, the action of the respondent No. 2 in issuing Annex. 6 was totally malafide and arbitrary. According to the petitioner, the office of the Director can only become vacant in accordance with the Clause 32 of the Bye laws, but no such contingency as enumerated in the said clause has arisen with regard to him. It was further contended that by mere change in the operation of area, members of the respondeat Bank belonging to the erstwhile operation area cannot cease to be member of the Bank and that their membership can only cease according to the provisions of clause 14 of the bye-laws. According to him, the implication of the amendment in the bye-laws sought by order Annex. 1, is only this that now new-members cannot be enrolled from the excluded area, because the application of such amendment is only prospective and not retrospective. THE petitioner, therefore, prayed that by an appropriate writ, order or direction the respondents be restrained from removing his name from the membership of the respondent Bank and from the Directorship by declaring the seat held by him as vacant. The respondents in their reply dated 22. 11. 1992 stoutly resisted the writ petition on every conceivable ground along with certain preliminary objections. First preliminary objection was that neither the respondent Bank has taken any loan from the State nor the State has any share or financial investment in the Bank and therefore, the respondent Bank does not come within the ambit of the State as provided under Art. 12 of the Constitution of India and the writ petition was not maintainable. Another preliminary objection was that since the petitioner has challenged his removal from the Executive Committee and primary membership of the Society, the impugned notification Annex. 1 and orders/decisions of the respondent Bank, which is a registered Cooperative Society, are appealable before the Registrar Cooperative Societies and, therefore, the writ petition was not maintainable. On merits, it was asserted that the petitioner being a member of the respondent Bank from village Basan, which is a rural area and which has now been excluded from the operation of the area of the Bank by the amendment in Clause III of the Bye-laws vide order dated 8/6/1992 (Annex. 1), has automatically ceased to be its member and Director. It was denied that the petitioner has now shifted to Abu Road and residing there. It was maintained that previously Tehsil Reodar, wherein village Basan, is situated and tehsil Abu Road, was the area for operation of the Abu Road branch of the respondent Bank and, therefore, petitioner's nomination paper from the Abu Road constituency was found to be valid. It was also admitted that the petitioner was declared elected as Director vide Annex. 3 and that guidelines were sought from the Cooperative Department for adopting the procedure as to how the members of the respondent Bank belonging to the rural area of District Sirohi should be removed. It was asserted that notice Annex. 6 was issued by the respondent Bank without any malafide and /or ulterior motive and that the said notice was general in nature and concerned with all those share holders who belonged to the rural areas. It was further asserted that the petitioner in his application form for membership dated 18/12/1986 (Annex. R/l), had specifically given his residential address as village Basan Tehsil Reodar and not that of Abu Road and that since the rural areas of District Sirohi have been excluded from the operation area of the Bank, all those members and share holders residing in rural areas have now ceased to be its members and that the petitioner was continuing as its member in pursuance of this Court's ad interim stay order. It was submitted that the removal of the member and the cessation of member are two different aspects but due to the amendment in Clause III of the Bye-Laws vide order Annex. 1, the petitioner, who belongs to the rural area, has ceased to be the member of the respondent Bank. The petitioner in his rejoinder dated 16. 2. 1993 reiterated that the respondent Bank is a State instrumentality within the meaning of Art. 12 of the Constitution and that it has also received subsidies of Rs. 10000/- in the years 1982-83, 1983-84 and 1984-85. However, he did not file any document in support of this contention. He further contended that as per provisions of the Bye-laws, the Govt. of Rajasthan may be admitted as member of the respondent Bank, that three Directors are to be nominated by the Registrar, Cooperative Societies and that as per sub-clause (xiv) of Cl. 36, prior approval of the Registrar, Co-operative Societies is essential for taking any disciplinary action against the Chief Executive Officer as also to create posts of Officers, juniors and other staff on the bank establishment and to frame rules prescribing procedure for filling the vacancies; that it is obligatory upon the Bank to have one nominee of the Registrar, Cooperative Society in the Staff Committee and that for payment of compensation, advance, rent, long term advance, securing premises for the Bank, prior approval of the Registrar is necessary and that as per Clause 48, the account of the respondent Bank is required to be audited by the auditors appointed by the Registrar and that any amendment in the bye laws is also subject to the approval of the Registrar. Therefore, it is the obligatory duty of the Registrar, Cooperative Societies to exercise his effective control over the respective Bank. Hence, the respondent Bank is State instrumentality and as such the writ petition was maintainable. It was also alleged that the respondents have concealed material facts in as much as that they issued letter dated 3. 7. 1992 Annex. 8 addressed to the petitioner but the same was not posted to him purposely and that he came to know about the said letter in the month of Feb. 1993 from the office of the Asstt. Registrar, Cooperative Societies, wherein it was mentioned that the petitioner had ceased to be a member as also the Director of the respondent Bank. The petitioner also submitted memorandum of agreement for Petrol/hsd Pump Dealership dt. 3/8/1991 executed by him and the Indian Oil Corporation for carrying on business of petrol pump in the name of M/s Maharani Petroleum, Sarupganj, which is a Municipal area and letters dt. 2. 7. 1992 (Annex. 10), 30. 7. 1992 (Annex. 11) and letters dt. 11. 12. 1992 and 27. 1. 93 (Annexs. 12 and 13) respectively issued by the respondent Bank to him on his Abu Road address to show that he was residing at Abu Road. He also filed a certificate of membership of the Lions Club of Abu Road issued by the International Association of Lions Club in his favour. After hearing the parties at length, the learned Single Judge did not like to decide the preliminary objection regarding the maintainability of the writ petition on the ground whether the respondent Bank is a State within the meaning of Art. 12 of the Constitution or not. On the other hand, the learned Single Judge held that since the area of operation of the respondent Bank has been confined to urban and semi urban areas and the rural areas have been excluded from its area of operation and therefore the petitioner cannot be allowed to continue as a member of the respondent Bank and for that matter as its Director. Hence he dismissed the writ petition. In this appeal, an ad interim order dated 6. 5. 1993 was passed to the effect that if any co-option of the Directors was in the respondent Bank, the result thereof shall not be declared and the same shall be subject to the decision of this appeal. On 12-5-1993 arguments were heard and order was reserved.
(3.) HOWEVER, on 17. 5. 1993 the respondents filed an application for taking documents Annexs. R/2 to R/4 on record. It was also mentioned in that application that after writ petition was dismissed on April 20, 1993 by the learned S. B. and before this Special Appeal was filed, the Managing Director of the respondent Bank, in compliance of the order of the statutory authority viz, Joint Registrar (Banking) Cooperative Societies, Raj. Jaipur dt. 14. 9. 92 (Annex. R/2) had issued letter dated 29. 4. 1993 Annex. R/4 to the petitioner informing him that his membership from the respondent Bank has come to an end and that his share amount has been deposited in the Sundry creditors account, which he should take back after depositing his share certificate. The respondent Bank has now contended that since the said order dt. 29. 4. 1993 (Annex. R/4) has not been challenged by the petitioner, this Special Appeal has become infructuous, It was ordered by this Court that the said application will be decided while passing the judgment. We have heard learned counsel for the parties at length and perused the relevant record in extenso. Mr. B. R. Mehta, learned counsel for the respondents, has strenuously contended that since the respondent Bank is not an instrumentality of the State under Art. 12 of the Constitution, this writ petition is legally not maintainable. For this, he has placed reliance on the case of Bhagwan Dass vs. Railway Shramik Sahakari Bank Ltd. (1), wherein a learned S. B. of this Court after referring catena of cases decided by the Apex Court has held that the Railway Shramik Sahakari Bank is not a 'state' or 'other Authority' within the meaning of Art. 12 of the Constitution because the State control over such a bank is not deep and pervasive. Accordingly, the said writ petition filed against Railway Shramik Sahakari Ltd. was dismissed. ;