Gujarat High Court
The vs State on 13 November, 2008
Author: Jayant Patel
Bench: Jayant Patel
SCA/8633/2008 41/ 41 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8633 of 2008 ========================================================= THE JUNAGAHD DISTRICT CO OP BANK LTD - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR TUSHAR MEHTA for Petitioner(s) : 1, MR UMANG OZA, AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2, 4, MR MK VAKHARIA for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 13/11/2008 ORAL ORDER
Heard Mr.Mehta, learned Counsel for the petitioner, Mr.Oza, learned AGP for respondent Nos.1 and 2 and Mr.K.G.Vakharia, learned Sr. Counsel with Mr.M.K.Vakharia, learned Counsel for respondent Nos.3 and 4.
Upon hearing the learned Counsel appearing for both the sides, it prima facie appears that the issues which arise for consideration by this Court in the present petition are more or less the same as they were considered by the coordinate Bench of this Court (Coram: Ravi R. Tripathi, J.) in Special Civil Application No.8029 of 2008 with Special civil Application No.8271 of 2008. For ready reference the reasons recorded by the Coordinate Bench in the above referred order deserve to be extracted and the same reads as under:-
5. Out of the group matters, one matter being Special Civil Application No.8419 of 2008 was withdrawn, whereas Special Civil Application No.8633 of 2008 was separated for being considered separately, in view of the different set of facts. Then, only two Special Civil Applications remained for consideration of the Court being Special Civil Applications No.8029 of 2008 and 8271 of 2008, which have almost similar facts and circumstances.
6. A common question of law involved in these two matters, which is also involved in the third matter, but it has separate set of facts is not decided by this judgement. Respondent no.3-Bank is a State Cooperative Bank.
The importance of respondent no.3- of the Bank is that under under the National Bank for Agriculture and Rural Development Act, 1981 (in short referred to as NABARD Act ) a 3-tier machinery is prescribed to archive the object set out in the opening part of NABARD Act through respondent no.3-Bank. The object is as under:
An act to establish a bank to be known as the National Bank for Agriculture and Rural Development for providing credit for the promotion of agriculture, small-scale industries, cottage and village industries, handicrafts and other rural crafts and other allied economic activities in rural areas with a view to promoting integrated rural development and securing prosperity of rural areas, and for matters connected therewith or incidental thereto. (emphasis supplied) 6.1 The term State Cooperative Bank is defined in clause (u) of section 2 of the NABARD Act. The definition reads as under
State Cooperative Bank means the Principal Cooperative Society in a state, the primary object of which is the financing of other Cooperative Societies in the State:
Provided that in addition to such Principal Society in a State, or where there is no such Principal Society in a state, the State Government may declare any one or more Cooperative Societies carrying on business in that State to be also or to be a State Cooperative Bank or State State Cooperative Banks within the meaning of this definition. (emphasis supplied) 6.2 It is not in dispute that respondent no.3 is, 'Gujarat State Cooperative Bank Limited' and it is recognised to be the State Cooperative Bank under the NABARD Act. In such a situation, the action of respondent no.3-Bank of denying the qualifying shares to one of its members so as to see that the Member is not able to contest the election, which is to be held for constitution of the Board of Directors of respondent no.3-Bank' is brought under challenge. It is not in dispute that the petitioners of both these petitions are the members of respondent no.3-Bank. So far as membership is concerned, there is no dispute that the petitioners are the members and they do have voting rights in election to be held for constitution of Board of Directors. The question which falls for consideration of this Court is whether any member can be denied allotment of additional shares required to achieve eligibility to contest the election for constitution of the Board of Directors.
6.3 In the present case, Bye-laws of respondent no.3-Bank in Chapter-VIII provide for 'Board of Directors'. Clause 26 is the clause which provides for 'constitution of the Board'. Clause 26 of the bye-laws reads as under:
26. Constitution of the Board The business of the Bank shall be carried on and managed by a Board of Directors, as hereunder provided:
(a) One representative of each district central cooperative bank, which has agreed to accept by provision in its bye-laws, inspection and supervision of this Bank, and has contributed to the share capital of this Bank to the extent of 1/20th of its paid up share capital as on 31st march of the preceding year.
(b) Two representatives of urban Banks and Banking Unions whose paid-up share capital is not less than Rs.600,000/- and as have contributed to the share capital of this Bank to the extent of 1/20th of their paid-up share capital or Rs.50,00,000/-, whichever is less as on 31st March of the preceding year.
(c) Two representatives of industrial and other cooperatives whose paid-up share capital is not less than Rs.5,00,000/- and as have contributed to the share capital of this Bank to the extent of 1/20th of their paid up share capital as on 31st March of the preceding year.
6.4 For the controversy involved in the matter, sub-clause ( c) of bye-law no.26 is most material and relevant. It is therefore, point of focus in the entire discussion. In the present case, the petitioners applied to respondent no.3-Bank for allotment of additional shares to enable them to acquire qualification by fulfilling eligibility criteria to contest the election to the Board of Directors of respondent no.3-Bank. Respondent no.3-Bank refused to allot such additional shares. Being aggrieved by that the petitioners are before this Court.
(embpasis supplied)
7. The history goes to communication dated 8th May 2008 sent by respondent no.3-Bank to Ahmedabad District Central Cooperative Bank and other District Central Cooperative Banks in this regard. It is the case of the petitioners that respondent no.3-Bank did not inform the petitioners and other members. The petitioners of Special Civil Application No.8029 of 2008-The Ahmedabad District Cooperative Milk Producers Union Limited was addressed a communication dated 8th May 2008 intimating that, the election of the Managing Committee of respondent no.3-Bank takes place as per the provision of sec.74C of the Gujarat Cooperative Society Act, 1961 and the rules relating thereto, through Election Officer and the City Deputy Collector, that the election of the present Managing Committee was held in January 2005 and the election of the Chairman and Vice Chairman was held on 8th September 2005, hence the term of the present Board of Directors is expiring on 7th September 2008. It was also stated in the said letter that, the election of the new Board of Directors will be undertaken in short; that under the bye-laws of respondent no.3-Bank and according to the eligibility criteria for Directorship, the addressee bank/ institution is required to appoint a representative, from amongst the elected members of the present Board of Directors. Hence such a representative be selected and be authorized by passing a necessary resolution, to file nomination, to support and to participate in the election process. A resolution be submitted to respondent no.3-bank by 21st June 2008 so that necessary nomination form could be submitted to the Election Officer by the representative of the addressee bank/ institution.
8. It is the case of the petitioners that the petitioners came to know about the election of the Board of Directors of respondent no.3-Bank only on receipt of this letter. It is also the case of the petitioners that the petitioners were in receipt of yet another communication of the same date, viz. 8th May 2008 from respondent no.3-Bank, whereby the petitioners were asked to submit necessary information of the institution in Annexure-1 to that letter, so as to reach respondent no.3-Bank latest by 10th June 2008. It was also intimated by that letter that if the said information, in the prescribed form (Annexure-1) will not be received by the Bank or will be received incomplete it will be reflected in the voters' list and in that circumstance the institution will be rendered ineligible for participating in the voting. The letter also contained other information like resolution is required to be passed in the format-Annexure-2 to the letter, that the resolution will be required to be passed in authorised Committee/ Board meeting, and that the resolution will be required to be submitted to the Bank in duplicate, etc.
9. The petitioners, on receipt of the aforesaid communications, sent a letter dated 15th May 2008 (Annexure 'F') to respondent no.3-Bank along with the form received by the petitioner-Ahmedabad District Cooperative Bank, resolution dated 9th May 2008 passed by the petitioners and a cheque for Rs.27,00,000/-. It is the case of the petitioners that the said cheque was not deposited by respondent no.3-bank. Therefore, the petitioners had to sent another letter dated 20th May 2008 along with Pay Order.
9.1 It is on record that respondent no.3-Bank did not allot additional shares worth Rs.25,00,000/- which were required by the petitioners to fulfil eligibility criteria to contest the election. On 20th June 2008, the petitioners were allowed to submit application and Demand Draft to respondent no.3-Bank, on a statement being made by the learned advocate for respondent no.3-Bank. It is also required to be noted here that, in the meeting held on 9th July 2008, respondent no.3-Bank refused to allot additional shares. Said decision of respondent no.3-Bank is challenged by moving an amendment.
10. The decision of non granting of additional shares so as to enable the petitioners to acquire qualification/ fulfil the eligibility criterion by holding required number of share as required under clause (c)of bye-law 26 of the bye-laws of the respondent-Bank, whether can be said to be an unjust and arbitrary action on the part of respondent no.3-Bank is the mute question which is to be answered by this Court.
11. The matter was argued at length by both the sides. The preliminary objection raised by learned senior counsel Mr.Vakharia appearing for respondent no.3-Bank in Special Civil Application No.8633 of 2008, are also considered.
12. The learned senior counsel submitted that the question of maintainability of writ petition against respondent no.3-Bank is required to be decided first because according to him a writ is not maintainable against respondent no.3-Bank. In support of his submissions, he relied upon various decisions of the Hon'ble the Apex Court and this Court. Learned advocate for the petitioners also relied upon various decisions of the Hon'ble the Apex Court and this Court to contend that a writ is maintainable and under Article 226 of the Constitution of India this Court has power to direct respondent no.3 to allot additional shares so as to enable the petitioners to obtain eligibility by acquiring necessary shares as required under sub-clause (c) of clause 26 of the bye-laws of the Bank.
13. Mr.Mehta, learned advocate for the petitioners relied upon a judgement of the Hon'ble the Apex Court in the matter of Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Survarna Jayant Smarak Trust Vs. V.R. Rudani, reported in A.I.R. 1989 SC 1707. Taking into consideration the fact that this is the judgement which is thereafter, referred to in other judgements by not only the Hon'ble the Apex Court but also this Court, it is deemed fit to consider this judgement in detail.
14. Learned advocate Mr.Mehta for the petitioner invited attention of the Court to paras 16 to 20 and finally para 21. For ready reference all these paras are reproduced hereinbelow:
16. There, however, the prerogative writ of mandamus confined only to public authorities to compel performance of public duty. The 'public authority' for them means every body which is created by statute - and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to any person or authority'. It can be issued "for the enforcement of any of the fundamental rights and for any other purpose".
17. Article 226 reads :
"226. Power of High Courts to issue certain, writs (1) Notwithstanding anything in Art. 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, orders or writs, including (writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,) or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.
xxx xxx xxx xxx" 18. The scope of this
article has been explained by Subba Rao, J., in Dwarkanath. v. Income Tax Officer (1965) 3 SCR 536 at pp. (540-41) : (AIR 1966 SC 81 at pp. 84-85) :
"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself."
19. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "Any person or authority"
used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.
20. In Praga Tools Corporation v. Shri C. A. Imanual (1969) 3 SCR 773 : (AIR 1969 SC 1306), this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed ( at p. 778) (of 1969-3 SCR) : (At pp. 1309-10 of AIR) :
"It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsbury's Laws of England (3rd Ed. Vol. II p. 52 and onwards)."
21. Here again we may point out that mandamus cannot be denied on the ground: that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act 4th Ed. p. 540). We share. this view. The judicial control over the fast expanding maze of bodies: affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.
15. From the above observations of the Hon'ble the Apex Court, it is certain that powers of the High Court under Article 226 of the Constitution of India are wider than the powers of the Hon'ble the Apex Court under Article 32 of the Constitution of India, in the matter of issuing writs. This is clear from para 18 of the judgement, wherein the Hon'ble the Apex Court deemed it proper to quote its earlier decision in the matter of Dwarkanath Vs. Income Tax Officer, reported in AIR 1966 SC 81. It will also be appropriate to quote and to keep in mind while considering any such matter the phrase which became a guiding beckon, namely, (Article 226) to reach injustice wherever it is found. It will also be appropriate for this Court to refer to the comparison drawn by the Hon'ble the Apex Court with regard to powers of the High Courts in India with that of English Courts in the said judgement, wherein the Hon'ble the Apex Court said that, In an attempt to equate the scope of power of the High Court under Article 226 with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restriction grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction would defeat the purpose of the article itself. (emphasis supplied)
16. In light of the above observations of the Hon'ble the Apex Court, this Court has no doubt even remotely that, ' the Court has power to issue directions to respondent no.3-Bank'. (emphasis supplied)
17. The most important aspect of the matter which cannot be allowed to be lost sight of is that if construction canvassed by the learned senior counsel for respondent no.3-Bank is accepted, then its net effect will be that, ' once a body/ group of persons comes into power it can see to it that the other persons are kept out by one or the other artificial excuse or excuses'. Precisely that is the position in the present case. By denying allotment of additional shares with the sole purpose to keep the member out of contest in the election to the Board of Directors, is the 'GOAL' which is sought to be achieved.
18. In the present case, respondent no.3-Bank denied allotment of additional shares to the petitioners of Special Civil Application No.8029 of 2008 on the ground that, ' if the shares as sought for are allotted to the petitioners of Special Civil Application No.8029 of 2008 that will increase the paid-up share capital of respondent no.3-Bank and on that it will be required to pay more dividend'.
(emphasis supplied)
19. This reason is required to be appreciated in light of the following facts:
The total paid up share capital of respondent no.3-bank is Rs.1701.80 lacs, whereas the additional shares applied by petitioners of Special Civil Application No.8029 of 2008 is Rs.27 lacs only. If these shares are alloted, then the increase in paid up share capital will work out to be less than 2%. Still the question remains is as to whether respondent no.3 can ever refuse to allot additional shares on this ground when its effects are so far reaching. While deciding the controversy involved in the matter, the Court cannot overlook the fact that respondent no.3-bank is a Bank which is declared to be a State Cooperative Bank under the NABARD Act, meaning thereby it is under an obligation or to use right term, it is by necessary implication an inevitable limb of 3-tier machinery, which is provided under the NABARD Act to see that the benefits, so decided by the Central Bank for promotion of agriculture, small scale industries, cottage and village industries, handicrafts and other rural crafts reach to the people concerned. Therefore, respondent no.3 can avoid discharging these duties, only at the risk of withdrawal of its status of State Cooperative Bank. In that event the State Government may be required to confer this status on any other Cooperative Society, because the definition of the term 'State Cooperative Bank' says, 'it is the principal cooperative society in the State, the primary object of which is financing other cooperative societies in the State'. A 'proviso' to the 'definition' clause, is a rare phenomenon. In this case, the proviso prescribes that, 'where there is no such principal society in the State, the State Government may declare any one or more Cooperative Societies carrying on business in that State to be also or to be a State Cooperative Bank or State Cooperative Banks'. In light of the wish and the mandate of the Legislature, it is not possible for this Court to agree that respondent no.3-Bank is mere a cooperative society engaged in mere banking business and therefore, can keep itself aloof of the jurisdiction of this Court and can avoid issuance of mandatory direction/ writ directing respondent no.3-Bank to manage its affairs in more transparent manner and in a manner which is more conducive to the cooperative principles.
20. It is one thing, to contest an election, persuade voters and get elected, but it is altogether unjust, arbitrary and also improper to see that once having been in power and in the management, deny allotment of additional shares to a person/ institution so as to see that the person does not get necessary eligibility by acquiring required number of shares which is made a condition precedent for one to contest election to the Board of Directors of respondent no.3-Bank.
21. Mr.Vakharia, learned senior counsel heavily relied upon a judgement of the Hon'ble the Apex court in the matter of Zee Telefilms Limited Vs. Union of India, reported in 2005 (4) SCC 649. The learned senior advocate submitted that alike him, Mr.K.K. Venugopal, learned senior counsel appearing for the Board had also raised a preliminary question about the maintainability of the petition. The learned senior counsel invited attention of the Court to paras 3 to 5 and 32 to 35, which according to him are relevant for our purpose. The learned senior advocate submitted that like the Board in the matter of Zee Telefilms Limited [2005 (4) SCC 649] (supra), respondent no.3-Bank is also not created by any Statute. He submitted that respondent no.3-Bank is registered under the Gujarat Cooperative Societies Act as the Board is registered under the Societies Registration Act, 1860. He next submitted that respondent no.3 is not getting any financial aid or assistance from the Government and so was the case of the Board in the case before the Hon'ble the Apex Court. He submitted that therefore, the discussion about the maintainability of a writ against the Board in that case is squarely applicable to the case on hand.
21.1 For ready perusal paras 3 to 5 and 32 to 35 are reproduced hereinbelow:
3.
In support of his argument Mr. K.K. Venugopal has contended, the Board is not created by any statute and is only registered under the Societies Registration Act, 1860 and that it is an autonomous body, administration of which is not controlled by any other authority including Union of India, (U.O.I.) the first respondent herein. He further submitted that it also does not take any financial assistance from the Government nor is it subjected to any financial control by the Government or its accounts are subject to the scrutiny of the Government. It is his submission that though in the field of Cricket it enjoys a monopoly status the same is not conferred on the Board by any statute or by any order of the Government. It enjoys that monopoly status only by virtue of its first mover advantage and its continuance as the solitary player in the field of cricket control. He also submitted that there is no law which prohibits the coming into existence of any other parallel organisation. The learned counsel further submitted that as per the parameters laid down by this Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. (2002 5 SCC 111), the Board cannot be construed as a State for the purpose of Article 12 and the said judgment being a judgment of Seven-Judge Bench of this Court is binding on this Bench. The argument of Mr. K.K. Venugopal is supplemented and supported by the arguments of Dr. A.M. Singhvi and Soli J. Sorabjee appearing for the other contesting respondents.
4. Mr. Harish N. Salve, learned Senior Counsel appearing on behalf of the petitioners opposing the preliminary objections submitted that the perusal of the Memorandum and Articles of the Association of the Board as also the rules and regulations framed by the Board indicate that the Board has extensive powers in selecting players for the Indian National team representing India in test matches domestically and internationally. He also pointed out that the Board has the authority of inviting foreign teams to play in India. He also further contended that the Board is the sole authority for organising major cricketing events in India and has the disciplinary power over the players/umpires and other officials involved in the game and sports being a subject under the control of the States, in substance the Board exercises governmental functions in the area of Cricket. He submitted that this absolute authority of the Board is because of the recognition granted by the Government of India, hence in effect even though it is as an autonomous body the same comes under "other authorities" for the purpose of Article 12. He also contended that the Board has the authority to determine whether a player would represent the country or not. Further, since playing cricket is a profession the Board controls the fundamental right of a citizen under Article 19 (1) (g) of the Constitution. It is his further contention that many of the vital activities of the Board like sending a team outside India or inviting foreign teams to India is subject to the prior approval of the Government of India. Hence, the first respondent-Union of India has pervasive control over the activities of the Board. For all these reasons, he submitted that the Board is "other authorities" within the meaning of Article
12.
5. Respondent No. 1-Union of India has filed a counter-affidavit which is subsequently supplemented by an additional affidavit in which it is stated that the Board was always subjected to de facto control of the Ministry of Youth Affairs and Sports in regard to international matches played domestically and internationally. In the said affidavit, it is also stated that the Government of India has granted de facto recognition to the Board and continues to so recognise the Board as the Apex National Body for regulating the game of Cricket in India. In the said affidavit it is also stated that it is because of such recognition granted by the Government of India that the team selected by the Board is able to represent itself as the Indian cricket team and if there had not been such recognition the team could not have represented the country as the Indian cricket team in the international cricket arena. It is also stated that Board has to seek prior permission and approval from the Government of India whenever it has to travel outside the country to represent the country. Even in regard to Board's invitation to the foreign teams to visit India the Board has to take prior permission of the Government of India and the Board is bound by any decision taken by the Government of India in this regard. It is further stated that in the year 2002 the Government had refused permission to the Board to play cricket in Pakistan. It is also submitted that the Government of India accepts the recommendation of the Board in regard to awarding "Arjuna Awards" as the National Sports Federation representing cricket. In the said affidavit the Government of India has stated before this Court that the activities of the Board are like that of a public body and not that of a private club. It also asserted that it had once granted an amount of Rs. 1,35,000/- to the Board for the payment of air fares for nine members of the Indian cricket team which went to Kuala Lumpur (Malaysia) to participate in the 16th Commonwealth Games in September 1998. It is further stated that some of the State Cricket Associations which are members of the Board have also taken financial assistance of land lease from the respective State Governments. It is also stated that though the Government does not interfere with the day-to-day autonomous functioning of the Board, if it is required the Board has to answer all clarifications sought by the Government and the Board is responsible and accountable to the people of India and the Government of India which in turn is accountable to Parliament in regard to team's performance.
32. This Court in the case of Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V. R. Rudani has held : (SCC pp.692 92) "Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to "any person or authority". The term "authority" used in the context, must receive a liberal meaning unlike the term in Article 12 which is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers powers on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party, no matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied."
'33.
Thus, it is clear that when a private body exercises its public functions even if it is not a State, the aggrieved person has a remedy not only under the ordinary law but also under the Constitution, by way of a writ petition under Article 226. Therefore, merely because a non-governmental body exercises some public duty that by itself would not suffice to make such body a State for the purpose of Article 12. In the instant case the activities of the Board do not come under the guidelines laid down by this Court in Pradeep Kumar Biswas case (supra), hence there is force in the contention of Mr. Venugopal that this petition under Article 32 of the Constitution is not maintainable.
34. At this stage, it is relevant to note another contention of Mr. Venugopal that the effect of treating the Board as State will have far reaching consequences inasmuch as nearly 64 other national Sports Federations as well as some other bodies which represent India in the international forum in the field of art, culture, beauty pageants, cultural activities, music and dance, science and technology or other such competitions will also have to be treated as a"State"within the meaning of Article 12, opening the flood gates of litigation under Article 32. We do find sufficient force in this argument. Many of the above-mentioned Federations or bodies do discharge functions and/ or exercise powers which if not identical are at least similar to the functions discharged by the Board. Many of the sport persons and others who represent their respective bodies make a livelihood out of it (for e.g. football, tennis, golf, beauty pageants etc.). Therefore, if the Board which controls the game of Cricket is to be held to be a State for the purpose of Article 12, there is absolutely no reason why other similarly placed bodies should not be treated as State. The fact that game of Cricket is very popular in India also cannot be a ground to differentiate these bodies from the Board. Any such differentiation dependent upon popularity, finances and public opinion of the body concerned would definitely violate Article 14 of the Constitution, as any discrimination to be valid must be based on hard facts and not mere surmises (See State of Kerala v. T.P. Roshana, (1979) 1 SCC 572). Therefore, the Board in this case cannot be singly identified as "other authority" for the purpose of Article 12. In our opinion, for the reasons stated above none of the other Federations or bodies referred to hereinabove including the Board can be considered as a "State" for the purpose of Article 12.
35. In conclusion, it should be noted that there can be no two views about the fact that the Constitution of this country is a living organism and it is the duty of Courts to interpret the same to fulfil the needs and aspirations of the people depending on the needs of the time. It is noticed earlier in this judgment that in Article 12 the term "other authorities" was introduced at the time of framing of the Constitution with a limited objective of granting judicial review of actions of such authorities which are created under the Statute and which discharge State functions. However, because of the need of the day this Court in Rajasthan State Electricity Board (supra) and Sukhdev Singh (supra) noticing the socio- economic policy of the country thought it fit to expand the definition of the term "other authorities" to include bodies other than statutory bodies. This development of law by judicial interpretation culminated in the judgment of the 7-Judge Bench in the case of Pradeep Kumar Biswas (supra). It is to be noted that in the meantime the socio-economic policy of the Government of India has changed [See Balco Employees' Union (Regd.) v. Union of India and Ors. (2002 2 SCC 333)] and the State is today distancing itself from commercial activities and concentrating on governance rather than on business. Therefore, the situation prevailing at the time of Sukhdev Singh (supra)is not in existence at least for the time being, hence, there seems to be no need to further expand the scope of "other authorities" in Article 12 by judicial interpretation at least for the time being. It should also be borne in mind that as noticed above, in a democracy there is a dividing line between a State enterprise and a non- State enterprise, which is distinct and the judiciary should not be an instrument to erase the said dividing line unless, of course, the circumstances of the day require it to do so.
22. The Learned senior counsel submitted that as respondent no.3-Bank is neither created by any statute nor discharging any 'public function', and therefore, it is not amenable to writ jurisdiction of this Court.
23. In the considered opinion of this Court, the submission of the learned senior advocate are not acceptable and hence cannot be accepted by this Court, in light of the discussion hereinabove. This Court has no even slightest doubt that the activities undertaken by respondent no.3-Bank cannot be and are not within the ambit, scope of term, 'banking business'. If that would have been so, then the submissions of the learned senior counsel would have been 'acceptable' and the petitioners could have been denied grant of any prerogative writ.
24. The learned senior counsel invited attention of the Court to all the relevant provisions of the Gujarat Cooperative Societies Act, 1961 including section 2(7). He also invited attention of the Court to the definitions contained in section 5 of the Banking Regulation Act, 1949, such as, section 5(b)-'banking'; 5(ffb)-'Exim Bank'; 5(j-a)-'regional rural bank'; and 5(n-i)-'Small Industries Bank'. For the ready perusal, these definitions are reproduced hereunder:
5(b) banking means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise.
5(ffb) Exim Bank means the Export-Import Bank of India established under section 3 of the Export-Import Bank of India Act, 1981 (28 of 1981).
5(j-a) regional rural bank means a regional rural bank established under sec.3 of the Regional Rural Banks Act, 1976 (21 of 1976).
5(n-i) Small Industries Bank means the Small Industries Development Bank of India established under section 3 of the Small Industries Development Bank of India Act, 1989.
24.1 The learned senior counsel also invited attention of the Court to the relevant provisions of the NABARD Act, like sections 2(p), 3, 16, 19 and 21(1)(i).
24.2 The attempt on the part of the learned senior counsel was to show that respondent no.3-Bank does not discharge any 'monopoly functions'.
The Court is not able to accept the submissions made by learned senior counsel in light of the discussion made hereinabove, namely, the 'State Cooperative Bank' is an inevitable link in the chain prescribed/ provided under the NABARD Act for providing credit for promotion of agriculture and other activities to be achieved by the Central Government. It will be appropriate at this stage to mention that every year, a sizable amount is allocated to the NABARD which, in turn, is distributed to the State Cooperative Banks, as per the requirement of the State concerned which, in turn, goes to the District Cooperative Banks, which will pass it on to the primary societies at grass root level. It will be appropriate here to refer to the amended provision of the Gujarat Cooperative Societies Act, 1961, whereby clause 7(A) is inserted in section 2 of the Act. Clause (7-A) defines cooperative credit structure. The said clause reads as under:
(7A) cooperative credit structure means (i) the Primary Agricultural Credit Cooperative Societies; (ii) the Central Cooperative Banks; and (iii) the State Cooperative Bank, 24.3 Thus, by this insertion of this clause, it is specifically provided that Primary Agricultural Credit Cooperative Societies and the Central Cooperative Banks taken together will mean the ' cooperative credit structure'.
Primary Agricultural Credit Cooperative Societies are at the grass root level. Central Cooperative Banks are at the district level. State Cooperative Banks are at the state level. Taking pyramid in its top upward, NABARD is at the apex, at the national level and State Cooperative Bank is at the top at State level.
(emphasis supplied) 24.4 The learned senior advocate also relied upon a decision of the Hon'ble the Apex Court in the matter of Zorostrian Cooperative Housing Society Ltd and another Vs. District Registrar, Cooperative Societies (Urban) and others, reported in (2005) 5 SCC 632. The learned senior counsel read at extenso various paras of this judgement and finally contended that the bye-laws of cooperative society are in the nature of a private contract between the society and its members and for enforcement of such contract, the administrative law remedy-writ jurisdiction cannot be invoked.
24.5 The submissions of the learned advocate are misconceived and misplaced because the Hon'ble the Apex Court in the aforesaid case was considering the aspect of request of a person to be a member in a cooperative housing society of a particular community and denial by cooperative society to a person from its membership. By no stretch of imagination, a cooperative bank, which is under an obligation to discharge the functions as discussed hereinabove can be equated with a cooperative housing society of a particular community. In fact, respondent no.3-Bank has a pivotal role to play to see that cooperative credit structure becomes functioning in the country. Even if it is true, that bye-law is in the nature of a private contract between a member and society, the observations of the Hon'ble the Apex Court in the case of Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Survarna Jayant Smarak Trust (supra) in para 21 are relevant for our purpose:
21. Here again we may point out that mandamus cannot be denied on the ground: that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states:
"To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act 4th Ed. p. 540). We share. this view. The judicial control over the fast expanding maze of bodies: affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition. (emhpasis supplied) 24.6 The learned senior counsel did submit that in cooperative society, membership may be claimed, but right to contest an election to Board of Directors cannot be claimed more particularly, by asking a writ of mandamus under Article 226 of the Constitution of India.
24.7 As discussed hereinabove, a group of persons having come into power denies allotment of additional shares to an institution so as to see that it does not acquire ' eligibility' to contest an election is an act which cannot be held to be legal on the touchstone of law. Respondent no.3-Bank is a 'State Cooperative Bank', discharging number of functions/ duties which are otherwise to be discharged by State. If for convenience, the State has chosen to operate through respondent no.3-Bank, respondent no.3-bank cannot be allowed to function at the whims of persons in power.
25. The learned advocate for the petitioners in support of his submission that the petitioner has a right to acquire eligibility and respondent no.3-Bank has a corresponding duty, submitted that under section 27 of the Gujarat Cooperative Societies Act, it is provided that a person will not be allowed to exercise rights as a member of a society until he has made such payment to the society in respect of membership. The learned advocate also submitted that section 27 also provides that a member will be allowed to exercise rights as a member of a society only on his acquiring such interest in the society as may be prescribed by the rules or bye-laws of such society. The learned advocate for the petitioners then submitted that when a duty is cast upon a member of a society to acquire interest in the society or make payment to the society, then the provisions to section 27 will be required to be read as 'casting a corresponding duty on the persons in charge of the affairs of the society to allow member to make payment and to acquire such interest in the society.'
26. The learned senior advocate in reply submitted that section 27 is only qua membership and rights of members and it has nothing to do with right to contest election to Board of Directors. This reply is devoid of any merit. The submission of the learned advocate for the petitioners is that when a duty is cast on a member to make payment so as to enable him to exercise rights as a member of the society or when there is an obligation on the part of the member to acquire such interest in the society as may be prescribed by the rules or bye-laws of the society, it is a settled position of law that then it necessarily casts a duty on the persons in-charge of the management of the society to all the members to obtain the interest in the society.
As discussed hereinabove the provisions contained in clause (c)of Bye-law 26 of the Bye-laws of respondent no.3-Bank makes it obligatory to hold required shares for being qualified to contest election to the Board of Directors, then it is obligatory on the part of the management of respondent no.3-Bank to allot qualifying shares. Denial, if any, to discharge such obligation is required to be tested by the law courts, as is done in this case. From the aforesaid discussion, it is clear that in the present case, the denial is not only unjust and arbitrary, but is also lacking in propriety.
27. In the present case, the management of respondent no.3 has denied allotment of shares only on the ground that if additional shares, as demanded by the petitioners are allotted it will increase the paid-up share capital of respondent no.3, in turn it will increase the burden of respondent no.3 to give dividend on additionally awarded shares. On the face of it, the reason advanced for not allotting additional shares is not tenable in the eye of law, more particularly, in light of the facts and figures mentioned hereinabove. So far as petitioner of Special Civil Application No.8271 of 2008 is concerned, its demand is for shares to the tune of Rs.95,000/- only. The learned advocate for the petitioners also raised contentions which are narrated in paras 5, 6 and 7 of the rejoinder. The said contentions are not required to be dealt with in view of the fact that the Court is of the opinion that even if that scenario is not emerging, the petitioners are in their right to claim for additional shares to enable them to contest election of the Board of Directors.
28. Rule.
Respondent no.3 is hereby directed to allot additional qualifying shares to the petitioners in the present petitions so as to qualify the petitioners to contest the election in the Board of Directors of respondent no.3-Bank under Bye-law No.26(c) of the Bye-laws of respondent no.3-Bank within two weeks from the date of receipt of this order, but in case the election is to be held earlier, the allotment should be made even earlier.
The distinguishing feature in the present case is that in the case, which has been considered by the Coordinate Bench of this Court as per the above referred order, was the matter of allotment of the shares by respondent No.3 Bank in the context of bye-law No.26(c), whereas in the present case it is a matter pertaining to the allotment of shares in the context of bye-law No.26(a). Except change in the constituency, the pattern of holding of shares is the same. As the bye-law No.26(c) has already been reproduced in the above referred order of the Coordinate Bench, the same does not deserve to be repeated. However, bye-law No.26(a), which may have bearing to the facts of the present case reads as under:-
26. Constitution of the Board:- The business of the Bank shall be carried on and managed by a Board of Directors, as hereunder provided:-
(a) One representative of each district central co-operative bank, which has agreed to accept by provision in its bye-laws, inspection and supervision of this Bank, and has contributed to the share capital of this Bank to the extent of 1/20th of its paid up share capital as on 31st March of the preceding year.
If both the bye-laws namely; bye-law No.26(c), in light of bye-law 26(a), are considered, they touch to the eligibility criteria of the member Cooperative Society concerned for participating at the election. Therefore, if the root aspect is common touching to the eligibility criteria for participation at the election, the matter deserves to be viewed in the same manner and more particularly in the context as to whether those who are in power in the State-level Cooperative Bank can foreclose the eligibility criteria of a member Cooperative Bank or a Society by declining the allotment of the shares. Since the Coordinate Bench has already taken prima facie view that the same is illegal, arbitrary and also against the principles of propriety, no further discussion deserves to be made.
Mr.Vakharia, learned Sr. Counsel appearing for respondents No.3 and 4, did make an attempt to contend that there are distinguishing features and circumstances and even the learned Single Judge while passing the above referred order, considered the same and, therefore, the present petition was separated. It was submitted that the distinguishing features in the present case are that the petitioner Society is the defaulter and the loans by respondent No.3 Bank are overdue and as per the bye-laws of the respondent No.3 Bank, if any Society is a defaulter, its representative cannot participate in the management. It was also submitted that the petitioner Bank is not maintaining the requisite cash reserve ration, nor is it maintaining the SLR as per the guidelines issued by the Reserve Bank of India (RBI) as well as National Bank of Agriculture and Rural Development (NABARD). Therefore, it was submitted that if the respondent Bank has declined allotment of shares to such member Society, such consideration can be said as germane to the exercise of powers and the decision cannot be said as arbitrary.
It deserves to be recorded that the eligibility criteria for participation at the election is one thing and the disqualification of the member, who is eligible is another thing. Further, the question of eligibility would stand satisfied, if the member is holding requisite shares as per the bye-laws. At the time when the shares are to be allotted, the respondent No.3 Bank would be governed by the bye-laws for allotment and acquiring of shares. No provision is brought to the notice of this Court providing for the prohibition of allotment of the shares by respondent No.3 Bank to any member Cooperative Society in the event such member Cooperative Society is a defaulter or is not maintaining the cash reserve ratio or is not maintaining SLR. If there is no payment of the loan well in time or the Society is defaulter or is not maintaining cash reserve ratio or SLR, it may attract action for recovery or the action by RBI or NABARD, as the case may be, if so warranted under the law, but on such aspects, prima facie, a Member Cooperative Society or a Bank, which is a voter, cannot be deprived of the right to participate at the election, just by not allotting the shares. If such an approach on the part of the Federal Cooperative Bank is countenanced, it would be very easy for those, who are in power to scuttle down the voter-list and thereby to create an artificial majority, excluding certain members as voters keeping them away from the election. Such can never be the object of cooperative principles and the structure of a Federal Cooperative Society with a member Cooperative Society. The basic intention is to give representation, subject to the limitations as provided under the Act, Rules or Bye-laws. No provision of the bye-laws of the respondent No.3 Bank is brought to the notice of this Court, either prohibiting the allotment of the shares to a member Cooperative Society so as not to make any member eligible or to claim eligibility criteria as a voter in the Federal Society, nor any prohibition is brought to the notice of this Court that if the member Cooperative Society is a defaulter or is not maintaining cash reserve ratio or SLR, it cannot claim additional shares for being eligible to participate at the election. Under these circumstances, the attempt made by Mr.Vakharia, learned Counsel for respondent No.3 cannot be countenanced at this stage, nor a different view deserves to be taken on such contention as sought to be canvassed.
The learned Counsel for the respondent No.3 also contended that the General Body of the petitioner Society at the meeting has resolved for not to send any representative of the petitioner Bank in any other Cooperative Societies and, therefore, it was submitted by the learned Counsel for the respondent No.3 that it would include representation of the petitioner Bank in respondent No.3 Bank also, whereas Mr.Mehta, learned Counsel appearing for the petitioner, submitted that it may apply to other member Cooperative Societies of the petitioner Bank and not to respondent No.3 Bank. It was also submitted by Mr.Vakharia, learned Sr. Counsel that such submission made by Mr.Mehta is running counter to the resolution of the General Body and, therefore, may not be accepted.
In my view, the question of sending representative cannot be equated with eligibility criteria for participating at the election. The issue arising for consideration in the present petition is whether respondent No.3 Bank, which is a State-level Federal Bank can foreclose the right of eligibility of a member Cooperative Bank by declining the issuance of the requisite shares though demanded by the member Cooperative Bank or not. It may be that if the member Cooperative Bank is eligible to participate at the election, it may not contest the election, or it may not send the representative also if it is so decided, but such aspects may not have direct bearing to the application for allotment of the shares and its consideration thereof, so as to make the petitioner Society eligible to contest the election. In any case, in view of the resolution of the General Body, it cannot be concluded that the petitioner Bank has abandoned the right to claim the eligibility criteria by getting the share allotment of respondent No.3 Bank as per the bye-laws, which is even otherwise required. Therefore, it is not possible to accept the contention of respondent No.3 Bank that the cause for the petitioner would not survive.
It deserves to be recorded that the aforesaid order of the learned Single Judge of this Court was carried by the respondent No.3 Bank before the Division Bench of this Court (Coram: K.S.Radhakrishnan, C.J. and Akil Kureshi, J.) and the Division Bench has observed in the order dated 15.10.2008 as under:-
Gujarat State Co-operative Bank Limited along with another, who are appellants in both these cases, challenge interim order passed by the learned Single Judge on 30th July, 2008, directing the Bank to allot additional qualifying shares to the petitioners in the writ petition, so as to qualify them to context the election to the Board of Directors of the Bank under bye-law 26(c) of the Bye-laws. First respondent herein, Ahmedabad District Co-operative Bank Limited is a member of the Gujarat State Co-operative Milk Producers' Union Limited under Clause 4(a) of the Bye-laws of the Bank. As per bye-law 26(c), two representatives are elected on the Board of Directors of the apex Bank i.e. Gujarat State Co-operative Bank Limited, from out of industrial and other Co-operative Societies, whose paid up share capital is not less than 5 lakhs and has contributed to share capital of the Bank to the extent of 1/20th of paid up share capital of such Co-operative Society. Petitioner, member of the apex Bank, received a communication dated 8th May, 2008, requesting petitioner Society to follow the procedure as stated therein. The relevant portion of the communication is extracted below:-
As per the provisions made in the bye-laws of this Bank, for continuing the qualification as a representative on the Board of Directors of this Bank, it is necessary that on 31.3.2008 your Institution should hold the shares of this Bank of the equivalent amount of 1/20th portion of the paid up share capital of your institution. Hence, you are requested to initiate the procedure for the same.
Petitioner responded to that letter and informed the apex Bank that they intend to additionally purchase 540 shares, each one share having value of Rs. 5,000/-. Necessary formalities as directed by the apex Bank was complied with, but it is complained that due to extraneous reasons the apex Bank is not allotting requisite shares, so that the petitioner Society can stand for election to the Board of Directors of the apex Bank. Reasons stated for not giving additional shares was found unacceptable by learned Single Judge and gave a positive direction to allot additional qualifying shares to the petitioner so that they can contest the election to the Board of Directors of the apex Bank under bye-law 26(c) of the Bye-laws of the Bank. Aggrieved by that direction, these appeals have been preferred by the State Co-operative Bank.
2. We heard learned counsel for the Bank at length. Learned counsel appearing for the appellant Bank submitted that learned Single Judge was not justified in giving a positive direction to the Bank, under Article 226 of the Constitution of India, since writ petition itself was not maintainable against a Co-operative Bank. In support of his contention, reference was made to the decisions in 2003 (10) SCC 733, 1995 (3) SCC 257 and 1976 GLR 583. Learned counsel for the appellant also submitted that granting of interim relief by the learned Single Judge virtually amounts to allowing the petition.
3.
Learned counsel appearing for the petitioner Society submitted that the appellant Bank is one of the principal Co-operative Bank in the State, established with the object of financing other Co-operative Societies and also receives finance by way of loans and advances from National Bank of Agriculture and Rural Development (NABARD). Further it was also stated that the Bank runs on support of the people at large as well as with the support of financial institutions like NABARD, State Bank of India and other Co-operative Institutions. Learned counsel submitted that if the member society wants to contest in the election to the Board of Directors of the apex Bank, it should acquire necessary shares as provided under bye-law 26(c) of the apex Bank. Petitioner Society was directed to acquire the same by the apex Bank by communication dated 8.5.2008. Learned counsel also referred to Section 27 of the Gujarat Co-operative Societies Act, 1961 and submitted that no person shall exercise the rights of a member of a Society, until he has made such payment to the society in respect of the membership, or acquired such interest in the society as may be prescribed by the Rules and Bye-laws of the Society. Bye-law 26(c) states that two representatives of the Industrial and other Co-operatives whose paid up share capital is not less than 5 lakhs and have contributed to the share capital of the apex Bank to the extent of 1/20th of the paid up share capital as on 31st March of the preceding year is eligible for contesting as member of the Board of Directors. Learned counsel for the petitioner Society submitted that a statutory obligation casts on the apex Bank to comply with Bye-law 26(c) read with Section 27 of the Act, so that petitioner Society can acquire interest in the society and consequentially stand for election. Learned counsel for the petitioner Society also submitted that the term of the Committee is already over and prayer for appointment of the Administrator is pending.
4. Question as to whether apex Bank has got a statutory obligation under the above mentioned Bye-laws read with section 27 of the Act, is a matter to be considered by the learned Single Judge finally when the writ petition is disposed of. Submission of learned counsel for the appellant Bank that granting of interim relief by the learned Single Judge amounted to allowing the writ petition, cannot be accepted in the facts and circumstances of this case, since the term of the Committee is already over and prayer for appointment of the Administrator is pending, as stated by Counsel for the petitioner. Once the election is over without considering the candidature of the petitioner Society, it will cause considerable prejudice to the Society. That being the facts and legal situation, we see no reason to interfere with the interim order passed by the learned Single Judge. If the petitioner stands for election, the same would be subject to the final decision to be taken by this Court in the main writ petition pending before the learned Single Judge. We make it clear that the opinion expressed by us in this order are only tentative, which will not influence the learned Single Judge while disposing of the matter finally. With the above observations, both the appeals stand dismissed. Consequently, Civil Applications also stand dispose of.
5. We make it clear that all legal questions raised by the parties with regard to the maintainability of the writ petition as against the appellant Bank is left open to be decided by the learned Single Judge.
The aforesaid shows that the Division Bench has not interfered with the view taken by the learned Single Judge for issuing interim directions.
Mr.Vakharia, learned Sr. Counsel wanted to make all submissions as were made before the Coordinate Bench of this Court (Coram: Ravi R. Tripathi, J.) in Special Civil Application No.8029 of 2008 as well as all contentions as were raised in Letters Patent Appeal No.1139 of 2008 and it was submitted by him that this Court may take a different view since the main Special civil Application is finally to be heard and the interim order passed by the learned Single Judge cannot be said as concluded verdict.
In my view, all such submissions, as were made in the earlier petition before the learned Single Judge as well as before the Division Bench, if are already considered and the prima facie view is expressed by the learned Single Judge in Special Civil Application as well as by the Division Bench in Letters Patent Appeal, no useful purpose would be served in considering the submissions once again. Therefore, the matter rests there, except observing that same situation will prevail for admission as well as for final disposal.
Even otherwise also, in view of the aforesaid order of the Coordinate Bench of this Court and the additional reasons as recorded hereinabove, no different view deserves to be taken. Therefore, similar directions deserves to be issued.
Hence, the following orders:-
(a) Rule to be heard with Special Civil Application No.8029 of 2008.
(b) Respondent No.3 Bank is directed to allot additional qualifying shares to the petitioner in the present petition so as to qualify the petitioner to participate at the election of respondent Bank as per bye-law No.26(a) of the Bye-laws of respondent No.3 Bank within two weeks from the date of receipt of the order of this Court but, in any case, prior to the election to be held, the shares shall be allotted.
It is also observed that if the shares are allotted and the petitioner or its representative participates at the election, such election would be subject to the final decision which may be taken by this Court in the present petition. The aforesaid observations are made for prima facie consideration of the matter and it would be open to both the sides to take an independent view at the time of final disposal as and when the matter is finally heard.
13.11.2008 (Jayant Patel, J.) vinod