Ram Chandra Choudhary vs. Roop Nagar Dugdh Utpadak Sahakari Samiti Ltd

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REPORTABLE

IN THE SUPREME COURT OF INDIA
2026 INSC 347
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4352 OF 2026
[Arising out of SLP (C) No. 38579 of 2025]

RAM CHANDRA CHOUDHARY & ORS … APPELLANT(S)


VERSUS

ROOP NAGAR DUGDH UTPADAK SAHAKARI
SAMITI LIMITED AND OTHERS … RESPONDENT(S)


J U D G M E N T
R. MAHADEVAN, J.
Leave granted.
2. The present Civil Appeal arises out of the judgment and order dated
18.05.2022 passed by the Division Bench of the High Court of Rajasthan at
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Jodhpur in D.B. Special Appeal Writ No. 704 of 2015, whereby the intra-court
appeal preferred by the State of Rajasthan came to be dismissed and the
common judgment dated 24.07.2015 rendered by the learned Single Judge in
S.B. Civil Writ Petition No. 7465 of 2010 ( Hari Ram Bishnoi v. State of
Signature Not Verified
Rajasthan and others ) and connected matters, was affirmed.
Digitally signed by
POOJA SHARMA
Date: 2026.04.10
16:17:12 IST
Reason:

1
Hereinafter referred to as “the High Court”

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3. By the aforesaid common judgment, the learned Single Judge allowed a
batch of writ petitions and declared Bye-law Nos. 20.1(2), 20.1(4), 20.2(7) and
20.2(9) as framed by various District Milk Producers’ Co-operative Unions in
the State of Rajasthan, including those chaired by the present appellants to be
ultra vires the provisions of the Rajasthan Co-operative Societies Act, 2001 and
consequently non est in the eyes of law. The learned Single Judge further
directed that all ensuing elections to the said Unions shall be conducted by the
State Co-operative Election Authority strictly in accordance with law, without
reference to the impugned bye-laws. However, it was clarified that elections
already conducted in the year 2010 shall not be disturbed.
4. For the sake of convenience, the impugned bye-laws are extracted below:
“20.1 Any President of society which he represents shall not be entitled to take
part in elections of Board and continue to remain his member if:

20.1(2) In the previous Audit it is classified as A or B category, provided State
Government shall have right to grant relaxation to take part in the meeting in
view of some special circumstances in view of White Revolution of state. But
they shall not be able to take part in elections which were kept unclassified.

20.1(4) Except in natural calamity, the same did not remain closed for more
than 90 days.

20.2 President of society shall not be eligible for election or after election, shall
not be eligible to continue in Board of Director, if

20.2(7) Except the circumstances which are outside, he represents the society
and has supplied the milk for at least 270 days to Sangh.

20.2(9) He represents the society which has failed to supply the minimum
quantity of milk.”


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5. Despite due service of notice, there was no representation on behalf of
Respondent No. 1 – writ petitioner either in person or through any learned
counsel. We have heard Mr. Kapil Sibal, learned senior counsel appearing on
behalf of the appellants, learned counsel appearing for Respondent No. 2 as well
as learned standing counsel representing Respondent No. 3 – State of Rajasthan.

FACTUAL BACKGROUND
6. The appellants are Chairpersons of five District Milk Producers’
Co-operative Unions in the State of Rajasthan, registered under the Rajasthan
Co-operative Societies Act, 1965. The said enactment stood repealed and
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replaced by the Rajasthan Co-operative Societies Act, 2001 which came into
force from 13.11.2002 along with the Rajasthan Co-operative Societies Rules,
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2003 .
6.1. The bye-laws in question, framed under the statutory authority of Section
8 read with Schedule B, Clause 1 (da), (i), ® and (v) of the Act, 2001, govern
the functioning of the Co-operative Societies. They introduced additional
eligibility conditions for candidates (representatives of Primary Milk Unions)
seeking to contest elections to the Management Committee (Board of Directors
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of the District Milk Producers’ Co-operative Societies ).

2
For short, “the Act, 2001”
3
For short, “the Rules, 2003”
4
Hereinafter referred to “the District Milk Unions”

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6.2. Aggrieved thereby, a batch of writ petitions came to be instituted by
certain Primary Milk Producers’ Co-operative Societies, challenging the vires of
the aforesaid bye-laws. It is pertinent to note that the present appellants were not
impleaded as parties to the said writ proceedings.
6.3. By a common judgment dated 24.07.2015, the learned Single Judge held
the writ petitions to be maintainable, 4ecognized the locus standi of the writ
petitioners and declared the impugned bye-laws to be ultra vires the Act, 2001
while protecting elections already concluded in the year 2010. The State of
Rajasthan carried the matter in appeal; however, the Division Bench by its
judgment dated 18.05.2022, dismissed the Special Appeal Writ and affirmed the
findings of the learned Single Judge.
6.4. Pursuant to the impugned judgment, the Registrar, in exercise of powers
under Section 11 of the Act, 2001, issued notice dated 08.02.2023 directing
amendment of the aforesaid bye-laws, followed by a further notice dated
13.02.2023 proposing to finalise such amendments in the absence of objections.
6.5. It is in these circumstances that the present appellants, who were not
parties to the original writ proceedings but claim to be directly affected by the
impugned judgment, have preferred the present appeal.

SUBMISSIONS OF THE PARTIES
7. Mr. Kapil Sibal, learned senior counsel appearing for the appellants at the
outset, questioned the maintainability of the writ proceedings under Article 226

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of the Constitution. It was submitted that the writ petitions were instituted by
representatives of certain Primary Milk Producer Co-operative Societies across
10 out of 16 milk-producing districts of Rajasthan, challenging bye-laws
20.1(2), 20.2(7), and 20.2(9) adopted by various District Milk Unions, including
those headed by the present appellants. It was contended that such writ petitions
were not maintainable inasmuch as the District Milk Unions are neither “State”
nor “instrumentality or agency of the State” within the meaning of Article 12 of
the Constitution. Furthermore, the nature of relief sought did not involve
enforcement of any public duty.
7.1. It was further submitted that the appellants are private co-operative
societies registered under the erstwhile Rajasthan Co-operative Societies Act,
1965 now governed by the Act, 2001, the Rules, 2003, and their duly registered
bye-laws. It is a settled position of law that mere regulatory control by statute
over a private body does not render such entity amenable to writ jurisdiction. In
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this regard, reliance was placed on Federal Bank Ltd v. Sagar Thomas ,
wherein this Court held that regulatory provisions ensuring discipline in
commercial activities do not confer the status of “State” upon a private entity.
7.2. The learned senior counsel further relied upon Supriyo Basu v. W.B.
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Housing Board to contend that a co-operative society, being a body constituted
through agreement among its members and merely governed by statute, is not

5
(2003) 10 SCC 733
6
(2005) 6 SCC 289

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amenable to writ jurisdiction unless a mandatory statutory provision is violated.
It was submitted that no such violation exists in the present case. Further
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reliance was placed on A. Umarani v. Registrar of Cooperative Societies and
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Akalakunnam Village Service Cooperative Bank Ltd. v. Binu N. to contend
that writ jurisdiction cannot be invoked in the absence of breach of statutory
duty.
7.3. It was also contended that the writ petitions suffered from gross delay and
laches as the impugned bye-laws had been in operation for nearly 8-9 years
prior to their challenge without any sufficient explanation for such delay.
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Reliance was placed on P.S. Sadasivaswamy v. State of Tamil Nadu in this
regard.
7.4. The learned senior counsel emphasised that the Act, 2001 provides a
complete and efficacious statutory mechanism for redressal of disputes. Section
58(2)(c) read with Section 60 vests jurisdiction in the Registrar to adjudicate
disputes relating to elections, which are disputes touching the constitution,
management or business of a co-operative society. Section 100 accords finality
to such decisions by treating them as decrees of a civil court. Further appellate
and revisional remedies are provided under Sections 104, 105, 106, and 107. It
was submitted that the writ petitioners having failed to exhaust these remedies,

7
(2004) 7 SCC 112
8
(2014) 9 SCC 294
9
(1975) 1 SCC 152

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could not have invoked Article 226. In this connection, reliance was placed on
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Titaghur Paper Mills Co. Ltd. v. State of Orissa and Executive Engineer,
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Bihar State Housing Board v. Ramesh Kumar Singh .
7.5. It was further submitted that the writ proceedings were vitiated by non-
joinder of necessary parties. Out of 16 District Milk Unions in Rajasthan, only a
few were impleaded, yet the High Court proceeded to strike down the impugned
bye-laws across all Unions, thereby rendering a “judgment in rem” without
affording an opportunity of hearing to affected parties. Such an approach is
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contrary to settled law as held in Dattatreya v. Mahaveer .
7.6. It was also urged that the High Court failed to issue notice to similarly
situated co-operative societies, thereby violating the principles of natural justice.
7.7. On merits, it was submitted that the “right to vote” and the “right to
contest elections” are distinct. While Section 20 of the Act, 2001 governs voting
rights, the right to contest elections is subject to eligibility conditions. The
impugned bye-laws do not curtail the right to vote but merely prescribe
qualifications for contesting elections. It is a settled principle that neither the
right to vote nor the right to contest is a fundamental or absolute right but a
statutory right capable of being regulated. Reliance was placed on Rama Kant

10
(1983) 2 SCC 433
11
(1996) 1 SCC 327
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(2004) 10 SCC 665

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13 14
Pandey v. Union of India , K. Krishna Murthy v. Union of India and
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Supreme Court Bar Association v. B.D. Kaushik .
7.8. It was further contended that the impugned bye-laws are merely enabling
provisions prescribing eligibility criteria for candidates seeking to contest
elections to the Management Committee (Board of Directors of District Milk
Unions). These bye-laws have been framed under Section 8 read with Schedule
B Clauses 1(da), (i), (r), and (v) of the Act, 2001 and are statutorily recognised
under Section 32. They operate in a distinct field from disqualifications, which
are exhaustively governed by Section 28 of the Act, 2001 read with Rule 34 of
the Rules, 2003. Thus, the impugned provisions are supplementary and not in
derogation of statutory disqualifications.
7.9. The learned senior counsel further submitted that the impugned bye-laws
are in furtherance of the object and purpose of the Act, 2001 namely, to promote
efficiency, accountability, and sustained milk production through the
cooperative movement. The conditions stipulated, such as minimum supply
requirements, operational continuity, and categorization based on audit, ensure
that only genuine and active societies participate in governance. These
provisions incentivise productivity and strengthen the co-operative framework.

13
(1993) 2 SCC 438
14
(2010) 7 SCC 202
15
(2011) 13 SCC 774

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7.10. It was also submitted that similar provisions exist in the bye-laws of other
co-operative institutions, such as Sale Purchase Co-operative Society, District
Co-operative Consumer Wholesale Store Ltd and Co-operative Land
Development Banks, thereby demonstrating that the impugned bye-laws are
neither unique nor arbitrary but consistent with established co-operative
practices.
7.11. Finally, it was submitted that the impugned judgments are liable to be set
aside on the principle of Actus curiae neminem gravabit (an act of the court
shall prejudice no one) as they were rendered to the prejudice of several District
Milk Unions including the appellants, who were not impleaded or heard. This
constitutes a clear violation of natural justice. It was emphasised that the
impugned bye-laws have contributed significantly to strengthening the dairy
co-operative movement in Rajasthan, which is among the leading milk
producing States in India.
7.12. Accordingly, it was prayed that the impugned judgments of the learned
Single Judge and the Division Bench be set aside, and the validity of the
impugned bye-laws be upheld.
8. The learned counsel appearing on behalf of Respondent No. 2 submitted
that the Act, 2001 is a self-contained code enacted with the objective of
promoting production, procurement, processing, and marketing of milk and milk
products, and for the economic development of the dairy and animal husbandry

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sector. The dairy co-operative movement in the State of Rajasthan operates
through a three-tier integrated structure, consisting of Primary Milk Producers’
Co-operative Societies at the village level, District Milk Producers’
Co-operative Unions at the district level, and the Rajasthan State Co-operative
Dairy Federation at the State level. Membership at the village level is voluntary
and open, and such Primary Societies constitute ordinary members of the
District Unions. The management at all three levels is democratic in nature, with
elected bodies functioning in accordance with the provisions of the Act, 2001
the Rules, 2003 and the bye-laws framed thereunder.
8.1. The learned counsel submitted that Section 8 read with Schedule B
confers express power upon co-operative societies to frame bye-laws on matters
relating to membership, rights and liabilities of members, representation,
participation in elections, and management of the society. Reference was made
to Clauses 1(da), 1(e), 1(i), 1(r), 1(v) and 1(w) of Schedule B to demonstrate
that the subject matter of eligibility, participation, and representation is well
within the scope of the bye-law making power. Sections 10 and 11 further
recognise the authority to amend bye-laws and the supervisory role of the
Registrar in that regard. It was also emphasised that Section 32 clearly stipulates
that elections to the committees of co-operative societies shall be conducted in
accordance with the provisions of the Act, 2001, the Rules, 2003, and the bye-
laws.

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8.2. It was contended that the impugned bye-laws do not create
disqualifications but merely prescribe eligibility criteria and enabling conditions
for participation in elections. The distinction between eligibility and
disqualification is well recognised in law. While disqualifications are
specifically governed by Section 28 of the Act, 2001 read with Rule 34 of the
Rules, 2003, the prescription of eligibility conditions falls within the permissible
domain of bye-laws. In this regard, reliance was placed on Sections 16, 18, 19,
and 20 of the Act, 2001, which make it abundantly clear that the rights of
membership, voting, and participation are subject to compliance with conditions
specified in the bye-laws.
8.3. The learned counsel submitted that the impugned bye-laws have been
framed with the legitimate object of ensuring that only genuine and active
participants in the cooperative dairy structure are entrusted with the
management of District Milk Unions. The provisions contained in the bye-laws,
such as categorization of societies based on audit (Bye-law 20.1(2)), exclusion
of societies remaining non-functional for a substantial part of the year (Bye-law
20.1 (4)), requirement of minimum days of milk supply (Bye-law 20.2(7)), and
minimum quantity of supply (Bye-law 20.2(9)), are all rational measures aimed
at ensuring efficiency, accountability, and continuity in the functioning of the
co-operative system. These conditions prevent dormant or non-performing

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societies from participating in governance and ensure that those who are
actively contributing to the co-operative movement represent its interests.
8.4. It was further submitted that the impugned bye-laws are in consonance
with the co-operative principles enshrined in Schedule A of the Act, 2001, such
as, voluntary and open membership, democratic member control, member
economic participation, autonomy and independence, education, training and
information and co-operation among co-operatives. The bye-laws, far from
being arbitrary, strengthen the co-operative framework by promoting active
participation and responsible governance.
8.5. The learned counsel also emphasised that Section 117 of the Act, 2001
bars the jurisdiction of courts in matters relating to the registration or
amendment of bye-laws. Furthermore, Sections 58 and 60 vest exclusive
jurisdiction in the Registrar to adjudicate disputes relating to elections and
management of co-operative societies. Section 28(13) also empowers the
Registrar to determine issues relating to disqualification. It was thus submitted
that the writ petitioners ought to have first approached the Registrar, instead of
directly invoking the writ jurisdiction of the High Court.
8.6. It was contended that the learned Single Judge erred in striking down the
impugned bye-laws by incorrectly treating eligibility conditions as
disqualifications and by failing to appreciate the statutory framework
empowering such provisions. The Division Bench further erred in affirming the

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same without properly considering the distinction between eligibility and
disqualification, the scope of the bye-law making power and the availability of
alternative remedies. The impugned judgments therefore suffer from serious
legal infirmities.
8.7. In conclusion, it was submitted that the impugned bye-laws are within the
statutory competence of the co-operative societies, are reasonable, non-arbitrary,
and in furtherance of the object and scheme of the Act, 2001. They do not
violate any statutory or constitutional provision. The interference by the High
Court with a valid exercise of statutory power is therefore unsustainable in law.
Accordingly, it was prayed that the impugned judgment dated 18.05.2022
passed by the High Court be set aside and the validity of the impugned bye-laws
be upheld.
9. The learned counsel appearing for the State submitted that the writ
petitioners, having failed to supply milk for a minimum of 270 days in a year,
did not fulfill the essential eligibility criteria prescribed under the bye-laws and
were, therefore, not entitled to contest or participate in the elections to the
District Milk Unions. It was contended that such requirement reflects the
minimum level of participation necessary in a dairy co-operative and a member
failing to meet the same cannot claim a right to be part of the decision-making
process.

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9.1. It was further submitted that the disqualifications enumerated under
Section 28 of the Act, 2001 are general in nature and apply uniformly to all
co-operative societies irrespective of their specific functions. However, the Act
itself, under Sections 5, 6, 8, 16, 18 and 27 contemplates that each co-operative
society shall be governed by its own bye-laws which are tailored to its particular
nature, business, and operational requirements. These provisions read with
Schedule B empower societies to prescribe qualifications and disqualifications
necessary for regulating their internal affairs, including participation in
elections.
9.2. The learned counsel emphasised that the bye-laws of the Dugdh Utpadak
Sangh have been framed strictly in consonance with the provisions of the Act,
2001 and duly registered thereunder. Such bye-laws provide for various matters
including the term of office, qualifications for membership, rights and liabilities
of members, and other conditions essential for the efficient functioning of the
society. The prescription of minimum service utilization, including supply of
milk for a specified number of days, forms an integral part of such regulatory
framework.
9.3. The learned counsel further submitted that the dairy co-operative structure
in the State is a three-tier system comprising primary societies, district milk
unions, and the State Federation, all of which are interlinked and
interdependent. In order to sustain and strengthen this integrated structure, it is

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imperative that the management at each level is entrusted to members who are
actively contributing to the objectives of the co-operative movement.
9.4. Placing reliance on Section 16(2) of the Act, 2001, it was contended that
the statute itself recognises the importance of active participation by providing
for expulsion of members who fail to attend meetings or comply with bye-law
requirements relating to minimum utilization of services. This indicates that the
legislative intent supports the imposition of such conditions to ensure
accountability and participation.
9.5. It was also submitted that the election process for primary societies and
district unions has already been initiated, and in several cases, elections have
been conducted in accordance with the existing bye-laws. The judgment of the
learned Single Judge dated 24.07.2015, which declared certain bye-laws as ultra
vires , was confined to a limited number of dairy unions, while others continue to
be governed by the same provisions. This has resulted in an incongruous and
potentially discriminatory situation across the State, thereby affecting the
uniformity of the electoral process.
9.6. Referring to Section 8 of the Act, 2001 read with Clause 1(da) of
Schedule B, the learned counsel submitted that the bye-laws are required to
specify norms relating to minimum utilization of services or attendance and
such provisions are an essential component of the governance framework of

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co-operative societies. The impugned bye-laws, according to the State, have
been framed precisely in accordance with these statutory requirements.
9.7. It was further contended that under Section 18 of the Act, 2001 a member
is not entitled to exercise rights of membership unless he fulfills the minimum
level of service utilization as specified in the bye-laws. Therefore, the
prescription of such conditions for participation in elections is a logical
extension of the statutory scheme.
9.8. The learned counsel also relied upon Section 27 to submit that the
constitution of the committee of a society is to be governed by its bye-laws, as
different societies engage in different types of activities and require different
qualifications for their members. Accordingly, the impugned bye-laws are
consistent with the legislative framework.
9.9. On the aspect of audit classification, it was submitted that the same is
carried out under Section 54 of the Act, 2001 read with Rule 73 of the Rules,
2003 and such classification reflects the operational efficiency and compliance
status of societies. The requirement of minimum service utilization is in
consonance with these parameters and ensures that only performing societies
participate in governance.
9.10. It was also urged that the impugned bye-laws have not been framed under
Section 123(2)(xxvi) of the Act, but derive their authority from Section 18 read

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with Clause 1(da) of Schedule B. Therefore, the finding of the learned Single
Judge regarding impermissible delegation of legislative power is erroneous.
9.11. Lastly, it was contended that the challenge to the bye-laws was not
maintainable in the absence of the Rajasthan Co-operative Dairy Federation
(RCDF) which is the apex body in the co-operative dairy structure and a
necessary party to the proceedings. Therefore, the impugned judgment of the
High Court be set aside by this Court.

DISCUSSION AND FINDINGS
10. We have considered the submissions made by the parties and also perused
the materials available on record.

11. The State of Rajasthan is one of the leading milk-producing States in
India, as is evident from the data published by the National Dairy Development
Board. The dairy sector in the State has evolved on a co-operative model
structured as a three-tier system comprising (i) Primary Milk Producers’
Co-operative Societies at the village level; (ii) District Milk Producers’
Co-operative Unions at the district level; and (iii) the Rajasthan State
Co-operative Dairy Federation Limited at the State level.
11.1. This framework constitutes an integrated co-operative mechanism,
wherein Primary Societies are organically linked with the District Milk Unions
and in turn, with the State Federation. At each of these three levels, the

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Executive Committees / Board of Directors are democratically elected bodies.
The members are entitled to participate in the electoral process in accordance
with the provisions of the Act, 2001, the Rules, 2003 framed thereunder and the
respective bye-laws governing such bodies.
12. The present dispute concerns elections to the Boards of Directors of
various District Milk Unions of which the Primary Societies are constituent
members. The controversy centers around Bye-law Nos. 20.1(2), 20.1(4),
20.2(7) and 20.2(9) framed by the District Milk Unions which prescribe
qualifications for contesting in the elections to the Board of Directors.
12.1. These bye-laws were challenged in writ proceedings by certain
representatives of the Primary Societies and were set aside by the learned Single
Judge, as affirmed by the Division Bench of the High Court. Aggrieved thereby,
the present appellants, who were not parties to the writ proceedings, have
approached this Court by way of the present appeal.
13. As stated above, the appellants herein were not arrayed as parties to the
writ proceedings before the High Court. They contend that the impugned
judgment directly and adversely affects their legal rights and interests. It is well
settled that a person who is aggrieved by a judgment even if not formally
impleaded as a party, is entitled to maintain an appeal with the leave of the
Court. The test of maintainability is not confined to formal party status but

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extends to whether the impugned decision has civil consequences or
prejudicially affects the rights of the appellants.

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13.1. In Ram Janam Singh v. State of U.P. , this Court held as follows:
“8. The appellant, admittedly, was not impleaded as a party to the said writ
application, but as he is directly affected like many other officers, who had
entered into the State Civil Service before the respondent, filed the connected
special leave petition challenging the validity of the judgment aforesaid. In view
of the fact that the appellant had entered into Civil Service of the State
Government before the respondent, it is not in dispute that he is affected in the
matter of seniority by the impugned judgment. It was held by this Court in the
case of Prabodh Verma v. State of U.P. [(1984) 4 SCC 251 : 1984 SCC (L&S)
704 : AIR 1985 SC 167] that a writ application in which the necessary parties
likely to be affected have not been impleaded, the High Court should not
proceed with such writ application without insisting on such persons or some of
them in representative capacity being made respondents. It was further held that
if petitioner refuses to join them, the High Court ought to dismiss the petition for
non-rejoinder of necessary parties. Admittedly, none was impleaded even in a
representative capacity. But it can be urged on behalf of the respondent that he
had not sought any relief against any individual. He had sought the intervention
of the High Court to declare Rule 3(1) of 1973 Rules and Rule 3(b) of 1980
Rules as ultra vires so far they made applicable the benefit of those rules to only
specified class of persons and restricted to others who were similarly situated.
As such respondent was not required to implead private respondent,
(sic appellant), who might be affected by the verdict of the Court. Even if this
stand is accepted, can it be said that persons who have been affected by the
judgment of the High Court in the connected writ application cannot challenge
the correctness thereof either by filing a review petition before the High Court
or by filing a special leave petition before this Court? According to us, the
answer is in negative. The appellant has a locus standi to challenge the said
judgment although he was not a party to the same and the special leave petition
filed on his behalf cannot be rejected on that ground. The delay in filing the
special leave petition has also been fully explained in the facts and
circumstances of the case, which is condoned.”

13.2. Thus, the judgment, in effect, operates in rem insofar as it alters the legal
regime applicable to similarly situated entities without affording them an

16
(1994) 2 SCC 622

20

opportunity of hearing. In such circumstances, the appellants clearly fall within
the category of “persons aggrieved” and are therefore entitled to maintain the
present appeal.


MAINTAINABILITY OF THE WRIT PROCEEDINGS
14. At the outset, it is necessary to consider the preliminary objection raised
by the learned senior counsel for the appellants regarding the maintainability of
the writ petitions under Article 226 of the Constitution of India. The High Court
in the impugned judgment, proceeded to examine the validity of the bye-laws
framed by the District Milk Unions without first addressing the foundational
issue as to whether the writ petitions themselves were maintainable, having
regard to the nature and character of the respondent societies, as well as the
statutory dispute-resolution mechanism provided under the Act, 2001. Since the
issue pertains to the very assumption of jurisdiction, it goes to the root of the
matter and must be adjudicated as a threshold question.

14.1. It is well settled that the jurisdiction of the High Courts under Article 226,
though wide and plenary, is not unbridled. While it extends beyond the confines
of Article 32 and may, in appropriate cases, be invoked even against bodies not
falling within the definition of “State” under Article 12, such jurisdiction is
ordinarily exercised where the impugned action bears a public law element. A
writ would lie against a non-State entity only where it performs public duties,

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discharges public functions or is alleged to have acted in breach of statutory or
constitutional obligations of a public character.
14.2. Conversely, disputes which pertain purely to the internal management,
governance or electoral processes of co-operative societies do not, as a matter of
course, attract writ jurisdiction merely because such societies owe their
incorporation to a statute. The existence of a statutory framework regulating
such societies does not by itself convert internal disputes into matters of public
law. The exercise of jurisdiction under Article 226 in such cases must therefore
be tested on well-established principles, including the nature of the right
asserted, the character of the duty alleged to have been breached, and the
availability of an efficacious alternate statutory remedy.
14.3. This Court has, in a long line of decisions, delineated the contours for
determining when a body, though not “State” within the meaning of Article 12,
may nevertheless be amenable to writ jurisdiction. The relevant considerations
include whether the body is entrusted with public duties, performs functions of a
public nature, or is subject to deep and pervasive State control so as to partake
the character of an instrumentality of the State.
14.4. However, the mere existence of regulatory or supervisory control,
howsoever extensive, is not determinative. Such control must be of a degree that
fundamentally alters the character of the body. In the absence of such indicia,

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disputes which are essentially private or internal in nature fall outside the ambit
of judicial review under Article 226.
14.5. The question whether the respondent societies can be regarded as “State”
must be examined in light of the tests laid down in Ajay Hasia v. Khalid Mujib
17
Sehravardi , which include indicia such as deep and pervasive State control,
financial dependence, and functional integration with governmental activities.
These principles have been applied to co-operative bodies in General Manager,
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Kishan Sahkari Chini Mills Ltd. v. Satrughan Nishad and others , where this
Court held that mere regulatory supervision or limited State participation does
not suffice to confer the status of an instrumentality of the State. Tested on these
parameters, the respondent Unions cannot be held to be “State” within the
meaning of Article 12.
14.6. In Thalappalam Service Co-operative Bank Ltd. and others v. State of
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Kerala and others , this Court, while examining the status of co-operative
societies, held as follows:
“20. The societies are, of course, subject to the control of the statutory
authorities like Registrar, Joint Registrar, the Government, etc. but it cannot be
said that the State exercises any direct or indirect control over the affairs of the
society which is deep and all pervasive. The supervisory or general regulation
under the statute over the cooperative societies, which are body corporate does
not render activities of the body so regulated as subject to such control of the
State so as to bring it within the meaning of the “State” or instrumentality of the
State…”

17
(1981) 1 SCC 722
18
(2003) 8 SCC 639
19
(2013) 16 SCC 82

23

“21. We have, on facts, found that the cooperative societies, with which we are
concerned in these appeals, will not fall within the expression “State” or
“instrumentalities of the State” within the meaning of Article 12 of the
Constitution and hence not subject to all constitutional limitations as enshrined
in Part III of the Constitution…”
“44. We are of the opinion that when we test the meaning of expression
“controlled” which figures in between the words “body owned” and
“substantially financed”, the control by the appropriate Government must be a
control of a substantial nature. The mere “supervision” or “regulation” as such
by a statute or otherwise of a body would not make that body a “public
authority” within the meaning of Section 2(h)(d)(i) of the RTI Act. In other
words just like a body owned or body substantially financed by the appropriate
Government, the control of the body by the appropriate Government would also
be substantial and not merely supervisory or regulatory. The powers exercised
by the Registrar of Cooperative Societies and others under the Cooperative
Societies Act are only regulatory or supervisory in nature, which will not
amount to dominating or interfering with the management or affairs of the
society so as to be controlled. The management and control are statutorily
conferred on the Management Committee or the Board of Directors of the
Society by the respective Cooperative Societies Act and not on the authorities
under the Cooperative Societies Act.”

14.7. In Federal Bank Ltd. v. Sagar Thomas (supra) , this Court held that a
writ under Article 226 would lie against a non-State entity only when it is
shown to be discharging a statutory or public duty of a public character. Mere
regulatory control or the existence of a statutory framework governing its
activities would not render such a body amenable to writ jurisdiction. The
relevant observations are as follows:
“31. …. 1t is no doubt held that a mandamus can be issued to any person or
authority performing public duty, owing positive obligation to the affected party.
The writ petition was held to be maintainable since the teacher whose services
were terminated by the institution was affiliated to the university and was
governed by the ordinances, casting certain obligations which it owed to that
petitioner. But it is not the case here….. no writ would lie against the private

24

body except where it has some obligation to discharge which is statutory or of
public character.
32. Merely because Reserve Bank of India lays the banking policy in the interest
of the banking system or in the interest of monetary stability or sound economic
growth having due regard to the interests of the depositors etc. as provided
under Section 5(c)(a) of the Banking Regulation Act does not mean that the
private companies carrying on the business or commercial activity of banking,
discharge any public function or public duty. These are all regulatory measures
applicable to those carrying on commercial activity in banking and these
companies are to act according to these provisions failing which certain
consequences follow as indicated in the Act itself. As to the provision regarding
acquisition of a banking company by the Government, it may be pointed out that
any private property can be acquired by the Government in public interest. It is
now a judicially accepted norm that private interest has to give way to the
public interest. If a private property is acquired in public interest it does not
mean that the party whose property is acquired is performing or discharging
any function or duty of public character though it would be so for the acquiring
authority.
33. For the discussion held above, in our view, a private company carrying on
banking business as a scheduled bank, cannot be termed as an institution or a
company carrying on any statutory or public duty. A private body or a person
may be amenable to writ jurisdiction only where it may become necessary to
compel such body or association to enforce any statutory obligations or such
obligations of public nature casting positive obligation upon it. We don't find
such conditions are fulfilled in respect of a private company carrying on a
commercial activity of banking. Merely regulatory provisions to ensure such
activity carried on by private bodies work within a discipline, do not confer any
such status upon the company nor put any such obligation upon it which may be
enforced through issue of a writ under Article 226 of the Constitution. Present is
a case of disciplinary action being taken against its employee by the appellant
Bank. The respondent's service with the Bank stands terminated. The action of
the Bank was challenged by the respondent by filing a writ petition under Article
226 of the Constitution of India. The respondent is not trying to enforce any
statutory duty on the part of the Bank. That being the position, the appeal
deserves to be allowed.”

14.8. In the present case, the District Milk Unions are autonomous, member-
driven bodies governed by the provisions of the Act, 2001, the Rules framed

25

thereunder, and their bye-laws. They are neither departments of the State nor
owned, financially controlled, or administratively dominated by the State in a
manner that would render them instrumentalities of the State within the meaning
of Article 12. The fact that such societies are subject to statutory regulation,
oversight by the Registrar or supervision by the State Co-operative Election
Authority does not detract from their essential character as independent
co-operative institutions. Furthermore, the disputes raised pertain essentially to
the internal governance and electoral framework of co-operative societies and
do not disclose any breach of a statutory or public duty of a public law
character.
14.9. In view of the aforesaid discussion, we are of the considered opinion that
the writ petitions ought not to have been entertained in the exercise of
jurisdiction under Article 226.

15. Even otherwise, the writ petitions were not liable to be entertained in
view of the express statutory scheme and the availability of a comprehensive
adjudicatory mechanism under the Act, 2001. The relevant provisions of the
Act, 2001 are extracted below:
S.58. Disputes which may be referred to arbitration-
(2) For the purpose of sub-section (1), the following disputes shall also be
deemed to be the disputes touching the constitution, management, or the
business of a co-operative society:
..
(c) any dispute arising in connection with the election of any officer of the
society.


26

S.60 - Reference of disputes to arbitration
(1) The Registrar may, on receipt of the reference of a dispute under section 58 -
(a) decide the dispute himself, or
(b) transfer it for disposal to any person who has been invested by the
Government with powers in that behalf, or
(c) refer it for disposal to an arbitrator having the eligibility, prescribed
therefor.

S.100 - Execution of orders, Etc.
(1) Notwithstanding anything contained in the Transfer of Property Act, 1882
(Central Act 4 of 1882) or any other law for the time being in force, every order
made by the Registrar under sub-section (2) of section 57 or under section 99,
every decision or award made under section 60, every order made by the
Liquidator under section 64 and every order made by the Tribunal under section
105 and 106 and every order made under section 104 shall, if not carried out,-
(a) on a certificate signed by the Registrar, or any person authorised by him in
this behalf, be deemed to be a decree of a civil court and shall be executed in the
same manner as a decree of such court; or
(b) be executed according to the law and under the rules for the time being in
force for the recovery of arrears of land revenue:
…
S.104 - Appeal to the Registrar and the State Government

S.105 - Constitution of and appeals to the Tribunal

S.106 - Review of orders by Tribunal

S.107 - Power of revision of the Government and the Registrar

S.125 - Power of Registrar to rescind certain resolutions-
If in the opinion of the Registrar, any resolution passed at the meeting of any co-
operative society or committee thereof is opposed to the objects of the society or
is prejudicial to the interests of the society or its members at large, or is against
the provisions of the Act, the rules or the bye-laws of the society or is otherwise
in excess of the powers of the society, the Registrar, may, after giving the society
an opportunity of being heard, rescind the resolution.


27

15.1. Section 58(1) of the Act, 2001 confers exclusive jurisdiction upon the
Registrar to decide disputes “touching the constitution, management or the
business of a co-operative society” and by necessary implication, excludes the
jurisdiction of civil courts in respect of such disputes. The scope of this
provision is further widened by Section 58(2)(c), which categorically declares
that any dispute arising in connection with the election of an officer of a society
shall be deemed to be a dispute touching its constitution or management.
Section 58(3) accords finality to the Registrar’s determination as to whether a
dispute falls within the ambit of the provision.
15.2. The statutory scheme is reinforced by Section 60 which enables the
Registrar to adjudicate the dispute himself or refer it to a competent authority or
arbitrator. Section 100 provides for execution of orders and accords
enforceability akin to a civil court decree. The Act further provides a complete
hierarchy of remedies, including an appeal under Section 104, a further appeal
to the Co-operative Tribunal under Section 105, and powers of review and
revision under Sections 106 and 107. In addition, Section 125 empowers the
Registrar to rescind any resolution or bye-law found to be contrary to the Act,
Rules, or the interests of the society.
15.3. The existence of such a self-contained, multi-tiered remedial framework
evinces a clear legislative intent that disputes relating to elections and internal
governance of co-operative societies be resolved within the statutory domain.

28

15.4. In the present case, the dispute raised pertains to the validity of bye-laws
governing eligibility to contest elections to the Management Committee of
District Milk Unions. Such issues are intrinsically connected with the internal
management and electoral process of the society and fall squarely within the
ambit of Sections 58(1) and 58(2)(c) of the Act, 2001. The writ petitions before
the High Court directly challenged the validity of bye-laws governing eligibility
to contest elections to the Board of Directors of the District Milk Unions. Such a
challenge is inextricably connected with the election process and internal
governance of the societies. The grievance raised by the writ petitioners
squarely fell within the ambit of a “dispute arising in connection with the
election of an officer of the society” under Section 58(2)(c). It is not in dispute
that the writ petitioners did not invoke the statutory remedies available under the
Act, nor was it demonstrated that such remedies were inefficacious or illusory.
15.5. As already discussed above, the respondent societies neither qualify as
“State” within the meaning of Article 12 nor are they shown to be discharging
any public duty of a statutory or public character. Bye-laws framed under the
Act constitute subordinate legislation deriving their power from the parent
statute. A challenge to their validity on the ground of inconsistency with the Act
or the Rules raises a question of statutory legality, which squarely falls within
the competence of the authorities constituted under the Act. It is not a case
involving a challenge to the constitutional validity of the parent statute. The

29

mere fact that the challenge is couched in terms of the bye-laws being ultra
vires the Act or suffering from excessive delegation does not justify invocation
of writ jurisdiction at the threshold.
15.6. It is well settled that although the existence of an alternative remedy does
not operate as an absolute bar to the exercise of jurisdiction under Article 226,
the High Courts ordinarily refrain from entertaining writ petitions, where an
efficacious statutory remedy is available, particularly in matters concerning
elections or where the statute provides for specialised forums. This principle
assumes greater significance where the statute not only creates such forums but
also manifests an intention to channel disputes through that mechanism.
15.7. No exceptional circumstances were either pleaded or demonstrated to
warrant deviation from this settled rule. There was no challenge to the vires of
the Act, no allegation of lack of jurisdiction on the part of the Registrar, nor any
case of manifest violation of fundamental rights incapable of being addressed
within the statutory framework.
15.8. In entertaining the writ petitions and adjudicating upon the validity of the
bye-laws, the High Court effectively bypassed the statutory dispute resolution
mechanism and rendered the remedies under Sections 58 and 104-105 nugatory.
Such an approach is contrary to the legislative scheme and undermines the
discipline of exhausting statutory remedies.

30

15.9. In Titaghur Paper Mills Co. Ltd. v. State of Orissa (supra) , this Court
categorically held that where a statute creates a right or liability and also
provides a machinery for redressal, the aggrieved party must exhaust such
statutory remedies, and a writ petition would not be maintainable. The following
paragraphs are pertinent:
“6. We are constrained to dismiss these petitions on the short ground that the
petitioners have an equally efficacious alternative remedy by way of an appeal
to the Prescribed Authority under sub-section (1) of Section 23 of the Act, then a
second appeal to the Tribunal under subsection (3)(a) thereof, and thereafter in
the event the petitioners get no relief, to have the case stated to the High Court
under Section 24 of the Act. In Raleigh Investment Company Limited v.
Governor-General in Council, Lord Uthwatt, J. in delivering the judgment of the
Board observed that in the provenance of tax where the Act provided for a
complete machinery which enabled an assessee to effectively raise in the courts
the question of the validity of an assessment denied an alternative jurisdiction to
the High Court to interfere…”

“11. Under the scheme of the Act, there is a hierarchy of authorities before
which the petitioners can get adequate redress against the wrongful acts
complained of. The petitioners have the right to prefer an appeal before the
Prescribed Authority under sub-section (1) of Section 23 of the Act. If the
petitioners are dissatisfied with the decision in the appeal, they can prefer a
further appeal to the Tribunal under subsection (3) of Section 23 of the Act, and
then ask for a case to be stated upon a question of law for the opinion of the
High Court under Section 24 of the Act. The Act provides for a complete
machinery to challenge an order of assessment, and the impugned orders of
assessment can only be challenged by the mode prescribed by the Act and not by
a petition under Article 226 of the Constitution. It is now well recognised that
where a right or liability is created by a statute which gives a special remedy for
enforcing it, the remedy provided by that statute only must be availed of…”

15.10. Similarly, in Umesh Shivappa Ambi and others v. Angadi Shekara
20
Basappa and others , this Court reiterated that particularly in matters relating
to election disputes, the High Court should not ordinarily interfere under Article

20
(1998) 4 SCC 529

31

226 when a specific statutory remedy is available. The relevant paragraphs read
as under:
“4. It is now well settled that once an election is over, the aggrieved candidate
will have to pursue his remedy in accordance with the provisions of law and this
(sic High) Court will not ordinarily interfere with the elections under Article
226 of the Constitution. (See in this connection para 3 in K.K. Shrivastava v.
Bhupendra Kumar Jain.) The Court will not ordinarily interfere where there is
an appropriate or equally efficacious remedy available, particularly in relation
to election disputes. In the present case, under Section 70(2)(C) of the
Karnataka Cooperative Societies Act, 1959 any dispute arising in connection
with the election of a President, Vice-President, Chairman, Vice-Chairman,
Secretary, Treasurer or member of Committee of the Society has to be referred
to the Registrar by raising a dispute before him. The Registrar is required to
decide this in accordance with law.”

“5. This was, therefore, not a fit case for intervention under Article 226. Hence,
the impugned judgment is set aside and the order of the learned Single Judge is
restored…”

15.11. Applying the aforesaid principles, it is evident that the dispute raised by
the writ petitioners falls squarely within the statutory framework governing co-
operative societies. The statute provides a specific and efficacious mechanism
for adjudication of such disputes, which has been bypassed by the writ
petitioners without any justification.
15.12. Accordingly, the writ petitions, insofar as they assailed the validity of
the bye-laws governing eligibility to contest elections, ought to have been
rejected at the threshold, the writ petitioners having an efficacious remedy under
the Act, 2001.


32

MERITS
16. Even assuming that the writ petitions were maintainable, the High Court
fell into manifest error in striking down the impugned bye-laws on merits. The
reasoning adopted by the High Court proceeds on an erroneous understanding of
the statutory scheme governing elections to co-operative societies under the Act,
2001 as well as the nature and scope of the rights sought to be regulated by the
impugned bye-laws.

Statutory framework governing elections
17. At the outset, it is necessary to examine the statutory framework
governing elections to the Management Committee of a co-operative society.
Section 32 of the Act, 2001 provides that elections to the Committee of a
co-operative society shall be conducted in accordance with the provisions of the
Act, the Rules framed thereunder, and the bye-laws of the society. The statutory
mandate, therefore, expressly integrates the Act, the Rules and the bye-laws into
a composite framework governing the electoral process.

17.1. The Act lays down the broad structural features relating to elections,
including the constitution of committees, voting rights and disqualifications.
The Rules regulate the procedural aspects of the election process, including the
conduct of elections. The bye-laws, in turn, operate within this statutory
framework to regulate society-specific aspects of governance, including
qualifications, representation, rights and duties of members, and norms relating

33

to participation in the affairs of the society, subject always to consistency with
the Act and the Rules.

17.2. The statutory scheme does not treat bye-laws as external or extraneous to
the election process. On the contrary, the Act expressly contemplates that
elections shall be conducted not only in accordance with the Act and the Rules,
but also in accordance with the bye-laws, so long as such bye-laws are within
the bounds of the enabling provisions of the statute. Any interpretation which
excludes bye-laws from operating in the field of elections would render Section
32 otiose and defeat the legislative intent.

17.3. The nature and role of bye-laws assume significance in this context. In
21
Co-operative Central Bank v. Additional Industrial Tribunal , this Court held
that bye-laws govern the internal management and administration of a
co-operative society. Though they may not have the force of a statute, they are
binding inter se the members and regulate their rights and obligations within the
co-operative framework. The Court clarified that such bye-laws operate akin to
mutually accepted conditions governing the internal affairs of the society. The
following paragraphs are pertinent:
“7 …It is true that Section 61 by itself does not contain any clear indication that
the Registrar cannot entertain a dispute relating to alteration of conditions of
service of the employees of a registered society; but the meaning given to the
expression "touching the business of the society", in our opinion, makes it very
doubtful whether a dispute in respect of alteration of conditions of service can
be held to be covered by this expression. Since the word "business" is equated

21
(1969) 2 SCC 43

34

with the actual trading or commercial or other similar business activity of the
society, and since it has been held that it would be difficult to subscribe to the
proposition that whatever the society does or is necessarily required to do for
the purpose of carrying out its objects, such as laying down the conditions of
service of its employees, can be said to be a part of its business, it would appear
that a dispute relating to conditions of service of the workmen employed by the
society cannot be held to be a dispute touching the business of the society.
Further, the position is clarified by the provisions of sub-section (4) of Section
62 of the Act which limit the power to be exercised by the Registrar, when
dealing with a dispute referred to him under Section 61, by a mandate that he
shall decide the dispute in accordance with the provisions of the Act and the
Rules and bye-laws…Such a change could not possibly be directed by the
Registrar when, under Section 62(4) of the Act, he is specifically required to
decide the dispute referred to him in accordance with the provisions of the bye-
laws. It may also be noticed that a dispute referred to the Registrar under
Section 61 of the Act can even be transferred for disposal to a person who may
have been invested by the Government with powers in that behalf, or may be
referred for disposal to an arbitrator by the Registrar….It is thus clear that, in
respect of the dispute relating to alteration of various conditions of service, the
Registrar or other person dealing with it under Section 62 of the Act is not
competent to grant the relief claimed by the workmen at all…”
“10. We are unable to accept the submission that the bye-laws of a cooperative
society framed in pursuance of the provisions of the Act can be held to be law or
to have the force of law. It has no doubt been held that, if a statute gives power
to a Government or other authority to make rules, the rules so framed have the
force of statute and are to be deemed to be incorporated as a part of the statute.
That principle, however, does not apply to bye-laws of the nature that a
Cooperative society is empowered by the Act to make. The bye-laws that are
contemplated by the Act can be merely those which govern the internal
management, business or administration of a society. They may be binding
between the persons affected by them, but they do not have the force of a statute.
In respect of bye-laws laying down conditions of service of the employees of a
society, the bye-laws would be binding between the society and the employees
just in the same manner as conditions of service laid down by contract between
the parties. In fact, after such bye-laws laying down the conditions of service are
made and any person enters the employment of a society, those conditions of
service will have to be treated as conditions accepted by the employee when
entering the service and will thus bind him like conditions of service specifically
forming part of the contract of service…”

17.4. In A.P. Dairy Development Corporation Federation v. B. Narasimha
22
Reddy and others , this Court recognised that once a co-operative society is

22
(2011) 9 SCC 286

35

constituted under a statute, its functioning, composition, and governance are
necessarily subject to statutory regulation, including through bye-laws. The
following paragraphs are apposite:
“28 . In view of the above, it becomes evident that the right of citizens to form an
association is different from running the business by that association. Therefore,
the right of individuals to form a society has to be understood in a completely
different context. Once a cooperative society is formed and registered, for the
reason that cooperative society itself is a creature of the statute, the rights of the
society and that of its members stand abridged by the provisions of the Act. The
activities of the society are controlled by the statute. Therefore, there cannot be
any objection to statutory interference with their composition or functioning
merely on the ground of contravention of individual's right of freedom of
association by statutory functionaries.”
“47 … Members of an association have the right to be associated only with those
whom they consider eligible to be admitted and have right to deny admission to
those with whom they do not want to associate. The right to form an association
cannot be infringed by forced inclusion of unwarranted persons in a group.
Right to associate is for the purpose of enjoying in expressive activities. The
constitutional right to freely associate with others encompasses associational
ties designed to further the social, legal and economic benefits of the members of
the association. By statutory interventions, the State is not permitted to change
the fundamental character of the association or alter the composition of the
society itself. The significant encroachment upon associational freedom cannot
be justified on the basis of any interest of the Government. However, when the
association gets registered under the Cooperative Societies Act, it is governed
by the provisions of the Act and the Rules framed thereunder. In case the
association has an option/choice to get registered under a particular statute, if
there are more than one statute operating in the field, the State cannot force the
society to get itself registered under a statute for which the society has not
applied.”

“55 … The affairs of the cooperatives are to be regulated by the provisions of the
1995 Act and by the bye-laws made by the individual cooperative society. The
1995 Act provides for multiplicity of organisations and the statutory authorities
have no right to classify the cooperative societies, while under the 1964 Act the
Registrar can refuse because of non-viability, conflict of area of jurisdiction or
for some class of cooperative.”

“56. Under the 1964 Act, it is the Registrar who has to approve the staffing
pattern, service conditions, salaries, etc. and his approval is required for taking
someone from the Government on deputation, while under the 1995 Act the staff
is accountable only to the society. Deputation, etc. is possible only if a
cooperative so desires. The size, term and composition of the Board fixed under

36

the 1964 Act and the Registrar is the ultimate authority for elections, etc. and he
can also provide for reservations in the Board…”

17.5. Similarly, in Thalappalam Service Co-op. Bank Ltd. and others v. State
of Kerala and others (supra), this Court reaffirmed that co-operative societies,
though not statutory bodies, are governed by statute and internally regulated
through their bye-laws, with the general body retaining primacy over
governance. The relevant paragraphs read thus:
“18. We can, therefore, draw a clear distinction between a body which is
created by a statute and a body which, after having come into existence, is
governed in accordance with the provisions of a statute. The Societies, with
which we are concerned, fall under the latter category that is governed by the
Societies Act and are not statutory bodies, but only body corporate within the
meaning of Section 9 of the Kerala Cooperative Societies Act having perpetual
succession and common seal and hence have the power to hold property, enter
into contract, institute and defend suits and other legal proceedings and to do
all things necessary for the purpose, for which it was constituted. Section 27 of
the Societies Act categorically states that the final authority of a Society vests in
the general body of its members and every Society is managed by the managing
committee constituted in terms of the bye-laws as provided under Section 28 of
the Societies Act. Final authority so far as such types of societies are concerned,
as the statute says, is the general body and not the Registrar of Cooperative
Societies or State Government.”


Nature of Rights: Right to Vote v. Right to Contest
18. The next aspect that arises for consideration is the nature of the right
sought to be regulated by the impugned bye-laws. The High Court failed to
advert to the well settled distinction between the right to vote and the right to
contest an election, both of which are statutory in nature, but operate in distinct
fields. The reasoning of the High Court proceeds on the assumption that any

37

restriction touching participation in the election process is impermissible,
without first identifying the precise right sought to be regulated.

18.1. It is well settled that neither the right to vote nor the right to contest an
election is a fundamental right. In Jyoti Basu and others v. Debi Ghosal and
23 24
others and Javed and other v. State of Haryana and others , this Court
authoritatively held that these rights are purely statutory in nature and exist only
to the extent conferred by statute. While the right to vote enables a member to
exercise franchise in accordance with the statutory scheme, the right to contest
an election or to be elected is a distinct and additional right which may
legitimately be made subject to qualifications, eligibility conditions, and
disqualifications. This position was reiterated in K. Krishna Murthy v. Union of
India (supra) , where this Court emphasised that rights of political participation
are not absolute and remain subject to statutory control, including eligibility
criteria and disqualifications. The following paragraphs are pertinent:
“35 …In fact the petitioners have also urged us to reconsider some earlier
decisions of this Court which have dealt with the status of the rights of political
participation such as the right to vote, the right to nominate candidates and the
right to contest elections. It may be recalled that the right to vote has been held
to be a statutory right and not a fundamental right and the same position has
been consistently upheld in subsequent decisions. (See decision in N.P.
Ponnuswami v. Returning Officer, which has been followed in Jyoti Basu v. Debi
Ghosal, Mohan Lal Tripathi v. District Magistrate, Rai Bareilly, Rama Kant
Pandey v. Union of India and Kuldip Nayar v. Union of India) This implies that
the rights of political participation are not absolute in nature and are subject to
statutory controls such as those provided in the Representation of the People
Act, 1951 among others. Undoubtedly, reservations in elected local bodies do

23
AIR 1982 SC 983
24
(2003) 8 SCC 369

38

place restrictions on the rights of political participation of persons who do not
belong to the reserved categories. In this respect, the petitioners have contended
that this Court should examine the reasonableness of such restrictions with
regard to the objective of ensuring “free and fair elections” [as observed in
Indira Nehru Gandhi v. Raj Narain, SCC at p. 94, para 213] as well as the
expanded understanding of Article 21 of the Constitution.”

“78. In this respect, it may be noticed that the Constitution empowers the
Election Commission of India to prepare electoral rolls for the purpose of
identifying the eligible voters in elections for the Lok Sabha and the Vidhan
Sabhas. This suggests that the right to vote is not an inherent right and it cannot
be claimed in an abstract sense. Furthermore, the Representation of the People
Act, 1951 gives effect to the constitutional guidance on the eligibility of persons
to contest elections. This includes grounds that render persons ineligible from
contesting elections such as that of a person not being a citizen of India, a
person being of unsound mind, insolvency and the holding of an “office of
profit” under the executive among others. It will suffice to say that there is no
inherent right to contest elections since there are explicit legislative controls
over the same.”

18.2. In Supreme Court Bar Association v. B.D Kaushik (supra), this Court
upheld restrictions on voting and candidature, clarifying that such provisions
merely regulate the exercise of the right and do not extinguish it. It was
categorically held that the right to vote and the right to contest are statutory
rights, and reasonable restrictions governing eligibility do not render such
provisions invalid. The following paragraphs are apposite:
“33. It is well settled by a catena of reported decisions of this Court that the
right to vote is not an absolute right. Right to vote or to contest election is
neither a fundamental right nor a common law right, but it is purely a statutory
right governed by statute/rules/regulations. The right to contest an election and
to vote can always be restricted or abridged, if statute/rules or regulations
prescribe so. Voting right restrictions also existed in Rules 18 and 18-A before
Rule 18 was amended. By amendment a further restriction is imposed by the
resolution adopted in the general body meeting. The argument that by the said
amendment of Rule 18 the aims and objects of SCBA are amended without prior
approval of the Registrar of Societies and, therefore, the same is illegal, cannot

39

be accepted. The impugned order makes it more than clear that this ground has
heavily weighed with the learned Judge in granting the injunction.”

“44. It is important to notice that what the impugned Rule does is that it only
declares the eligibility of a member to contest and vote and does not take away
ipso facto the right to vote. The impugned Rule only prescribes the eligibility or
makes a person ineligible in the circumstances stated therein which is in the
nature of a reasonable restriction as the right to vote is neither a common law
right nor fundamental right but a statutory right prescribed by the statute as has
been held in several reported decisions of this Court. What is necessary to be
noticed here is that the impugned clause in the Rule is not the only clause
prescribing ineligibility to vote as there are other eligibility conditions or
ineligibility restrictions within Rule 18, which may also make a person ineligible
to vote. The challenge, therefore, to this ineligibility of filing a declaration not to
vote at the elections to any other Bar Association is erroneous in law.”

18.3. Thus, a clear doctrinal distinction emerges: the right to vote is the right to
participate in the electoral process by exercising franchise; and the right to
contest is a distinct and additional right, enabling a person to seek election to an
office. The latter is inherently subject to stricter regulation, including
qualifications, disqualifications, and institutional requirements.

18.4. The Act, 2001 recognises this distinction. Section 19 confers upon a
member the right to vote, subject to statutory conditions. The right to contest an
election or to continue as a member of the committee, however, is governed by
separate provisions relating to eligibility, disqualifications, and the bye-laws
regulating representation and governance. The two rights, though related to the
electoral process, operate in different fields and are governed by distinct
statutory considerations.


40

18.5. A careful reading of the impugned bye-laws makes it evident that they do
not regulate or curtail the right of members to cast their vote. The bye-laws are
directed at the eligibility of the President or representative of a primary
co-operative society to contest elections to, or to continue as a member of, the
Board of Directors of the District Milk Unions. The conditions prescribed
therein are referable to candidature and continuation in office, and not to the
exercise of franchise by the members of the society.

18.6. The use of expressions such as “participate in elections” in the bye-laws
cannot be read in isolation or divorced from context. When read holistically, and
particularly in conjunction with provisions expressly dealing with eligibility for
election and continuation in office, it is evident that the term “participation” is
used in the sense of participation as a candidate, and not as a voter. Any
contrary interpretation would lead to an incongruous result and attribute to the
bye-laws an intent they do not bear.

18.7. The High Court, by equating regulation of eligibility to contest elections
with a restriction on the right to vote, conflated two distinct statutory rights and
consequently applied an erroneous standard of scrutiny. The impugned bye-laws
operate solely in the domain of candidature and holding of office, without
impinging upon the right to exercise franchise. The very premise of the High
Court’s reasoning is therefore fundamentally flawed and unsustainable in law.


41

Eligibility v. Disqualification
19. The next issue that arises for consideration is whether the impugned bye-
laws amount to disqualifications or merely prescribe eligibility criteria for
contesting elections. The answer to this question is determinative of the standard
of scrutiny to be applied.

19.1. The statutory scheme draws a clear and well-recognised distinction
between the two. Disqualifications, as contemplated under Section 28 of the
Act, 2001 operate as statutory disabilities that attach upon the existence of
specified negative circumstances, such as conflict of interest, default, insolvency
or other conditions expressly enumerated by the legislature and render a person
ineligible despite otherwise satisfying the baseline eligibility criteria.
Disqualification, therefore, presupposes eligibility but operates to negate it on
account of a supervening or disabling factor.

19.2. Eligibility, on the other hand, pertains to threshold conditions governing
entry into the electoral arena. Such conditions are typically positive, objective,
and qualification-oriented, and are designed to ensure that those who seek to
contest elections or hold office possess a minimum level of functional
connection, participation or suitability in relation to the affairs of the society.
The absence of eligibility does not attract any penal or stigmatic consequence; it
merely postpones the right to contest until the prescribed conditions are
fulfilled.

42

19.3. A careful examination of the impugned bye-laws reveals that they do not
impose any disabling or punitive bar of the nature contemplated under Section
28 of the Act. The conditions relating to audit classification, continuity of
operations, minimum supply of milk or minimum number of days of
participation are uniformly applicable, objective in nature, and intrinsically
linked to the functional performance of the primacy co-operative society and its
representative. Such conditions neither attach a stigma nor operate as permanent
exclusions, and they are capable of being satisfied in subsequent election cycles
upon compliance. These criteria are therefore intrinsic to the concept of
representative and accountable governance within a co-operative framework.

25
19.4. In Noel Harper v. Union of India , this Court upheld regulatory
conditions founded on intelligible differentia having a rational nexus with the
object sought to be achieved. It was held that uniformly applicable conditions
designed to advance statutory objections cannot be characterised as arbitrary
merely because they regulate participation. Such a framework recognises that
structured eligibility conditions are integral to ensuring institutional integrity
and effective governance. The following paragraphs are pertinent:
“119. We fail to understand as to how such a provision (amended Section 7) can
be regarded as discriminatory or so to say vague or irrational much less
manifestly arbitrary. The restriction therein applies to a class of persons who
are permitted to accept foreign donation for being utilised by themselves for the
definite purposes, without any discrimination and it is so done to uphold the
objective of the principal Act. Thus, there is clear intelligible differentia with a
direct nexus sought to be achieved with the intent of the principal Act. Such

25
(2023) 3 SCC 544

43

strict regime had become inevitable because of the experience gained by the
authorities concerned over a period of time, including about the abuse of the
earlier dispensation under the unamended provision.”

19.5. The High Court, however, proceeded on the erroneous premise that any
condition affecting participation in elections must necessarily amount to a
disqualification, and consequently tested the validity of the impugned bye-laws
solely with reference to Section 28 of the Act. This approach overlooks the
fundamental conceptual and statutory distinction between eligibility and
disqualification. Section 28 cannot be read as exhaustively occupying the field
of eligibility, nor can the absence of a particular condition therein render invalid
an eligibility criterion prescribed elsewhere within the statutory framework.

19.6. As already mentioned, once this distinction is properly appreciated, it
becomes evident that the impugned bye-laws operate in a field anterior to
disqualification. They regulate who may enter the electoral fray or continue in
office based on minimum functional and performance-related thresholds, and do
not seek to add to or alter the statutory disqualifications enumerated under
Section 28. By conflating these two distinct concepts, the High Court
misdirected itself in law and applied an incorrect standard of scrutiny.

19.7. In conclusion, the impugned bye-laws do not introduce any new
disqualifications nor do they trench upon Section 28. They merely prescribe
eligibility criteria grounded in participation, performance and functional

44

engagement, which are fully consistent with the statutory scheme and the
principles governing co-operative institutions. The invalidation of the bye-laws
on the premise that they impose disqualifications is, therefore, legally
unsustainable.

Source of power to frame bye-laws
20. The next issue concerns whether the District Milk Unions possessed the
statutory authority to frame the impugned bye-laws. This requires identification
of the source, scope, and limits of the delegated power under the Act, 2001.

20.1. Section 8 of the Act, 2001 empowers a co-operative society to frame bye-
laws for the conduct of its affairs in respect of the subject matters enumerated in
Schedule B. The delegation under Section 8 is neither unstructured nor
unguided; it is expressly confined to specified heads relating to the internal
governance, functioning and representative character of a co-operative society.
Schedule B(1), insofar as the present controversy is concerned, specifically
includes Clause (da) and Clause (v). Clause (da) authorises the framing of bye-
laws prescribing “norms regarding minimum essential utilisation of the services
of the society or minimum essential attendance at meetings or other dealings
with the society, to be fulfilled by a member”. Clause (v) empowers a society
“to send a representative to another society”.

45

20.2. Clause (v) assumes particular significance in the context of a federal
co-operative such as a District Milk Union. The committee of such a Union is
constituted through representation of its member primary societies. Participation
in its management is therefore not in an individual capacity but through a
nominee or representative of a member-society. The entitlement of a member-
society to send its representative necessarily depends upon its status as a
functioning and participating unit within the co-operative structure.

20.3. When read with Clause (da), which permits prescription of minimum
participation in the activities of the society, these provisions clearly enable
regulation of the entitlement of a member-society to be represented in the
governance of a higher-tier co-operative institution.

20.4. The impugned bye-laws prescribe conditions relating to audit
classification, continuity of operations, minimum number of days of milk supply
and minimum quantity of milk supplied by a primary co-operative society
whose President seeks to represent the society on the Board of Directors of the
District Milk Unions. Conditions requiring sustained utilisation of the services
of the society and minimum functional participation are directly referable to
Clause (da), while norms governing the entitlement of a member-society to send
its representative fall squarely within Clause (v).


46

20.5. Section 18 of the Act, 2001 reinforces this position. It stipulates that no
member shall exercise the rights of membership unless such member has
fulfilled obligations such as payment of dues or availed the minimum level of
services as may be specified in the bye-laws. The statute thus expressly
recognises that the exercise of membership rights may be conditioned upon
participation in the activities of the society. Representation in the management
of a federal co-operative, being an incident of such membership participation,
may therefore be legitimately regulated through bye-laws prescribing minimum
function involvement.

20.6. The scheme of the Act, 2001 indicates that a federal co-operative operates
through its member primary societies and that its management is intended to
reflect the participation of active and functioning units. Bye-laws prescribing
minimum utilisation of services ensure that representation is confined to such
functioning members, and prevent dormant or non-functional entities from
influencing the affairs of the Union.

20.7. The object of the impugned bye-laws is thus to ensure that only active and
functional member-societies participate in governance. Such a classification is
rational, consistent with co-operative principles and bears a direct nexus to the
object of the Act, namely, ensuring democratic and effective management by
genuinely participating members.

47

20.8. The legal position governing the validity of subordinate legislation is well
26
settled. In State of T.N. v. P. Krishnamurthy , this Court held that subordinate
legislation carries a presumption of validity and may be invalidated only on
limited grounds including lack of legislative competence, violation of
constitutional or statutory provisions, inconsistency with the parent Act, or
manifest arbitrariness. The Court emphasised that the inquiry must be directed
at whether the subordinate legislation conforms to the object, scheme and scope
of the enabling Act. The following paragraphs are apposite:
“Whether the rule is valid in its entirety?
15. There is a presumption in favour of constitutionality or validity of a
subordinate legislation and the burden is upon him who attacks it to show that it
is invalid. It is also well recognised that a subordinate legislation can be
challenged under any of the following grounds:
(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the
limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the court might
well say that the legislature never intended to give authority to make such rules).
16. The court considering the validity of a subordinate legislation, will have to
consider the nature, object and scheme of the enabling Act, and also the area
over which power has been delegated under the Act and then decide whether the
subordinate legislation conforms to the parent statute. Where a rule is directly
inconsistent with a mandatory provision of the statute, then, of course, the task
of the court is simple and easy. But where the contention is that the
inconsistency or non-conformity of the rule is not with reference to any specific
provision of the enabling Act, but with the object and scheme of the parent Act,
the court should proceed with caution before declaring invalidity.
17. In Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [(1985)
1 SCC 641 : 1985 SCC (Tax) 121] this Court referred to several grounds on

26
(2006) 4 SCC 517

48

which a subordinate legislation can be challenged as follows: (SCC p. 689, para
75)
“75. A piece of subordinate legislation does not carry the same degree of
immunity which is enjoyed by a statute passed by a competent legislature.
Subordinate legislation may be questioned on any of the grounds on which
plenary legislation is questioned. In addition it may also be questioned on
the ground that it does not conform to the statute under which it is made. It
may further be questioned on the ground that it is contrary to some other
statute. That is because subordinate legislation must yield to plenary
legislation. It may also be questioned on the ground that it is unreasonable,
unreasonable not in the sense of not being reasonable, but in the sense that
it is manifestly arbitrary.”
(emphasis supplied)
18. In Supreme Court Employees' Welfare Assn. v. Union of India [(1989) 4
SCC 187 : 1989 SCC (L&S) 569] this Court held that the validity of a
subordinate legislation is open to question if it is ultra vires the Constitution or
the governing Act or repugnant to the general principles of the laws of the land
or is so arbitrary or unreasonable that no fairminded authority could ever have
made it. It was further held that the Rules are liable to be declared invalid if
they are manifestly unjust or oppressive or outrageous or directed to be
unauthorised and/or violative of the general principles of law of the land or so
vague that it cannot be predicted with certainty as to what it prohibited or so
unreasonable that they cannot be attributed to the power delegated or otherwise
disclose bad faith.
19. In Shri Sitaram Sugar Co. Ltd. v. Union of India [(1990) 3 SCC 223] a
Constitution Bench of this Court reiterated: (SCC pp. 251-52, para 47)
“47. Power delegated by statute is limited by its terms and subordinate to
its objects. The delegate must act in good faith, reasonably, intra vires the
power granted, and on relevant consideration of material facts. All his
decisions, whether characterised as legislative or administrative or quasi-
judicial, must be in harmony with the Constitution and other laws of the
land. They must be ‘reasonably related to the purposes of the enabling
legislation’. See Leila Mourning v. Family Publications Service [411 US
356 : 36 L Ed 2d 318 (1973)] . If they are manifestly unjust or oppressive or
outrageous or directed to an unauthorised end or do not tend in some
degree to the accomplishment of the objects of delegation, court might well
say, ‘Parliament never intended to give authority to make such rules; they
are unreasonable and ultra vires’: per Lord Russel of Killowen, C.J. in
Kruse v. Johnson [(1898) 2 QB 91 : (1895-99) All ER Rep 105] .”
20. In St. John's Teachers Training Institute v. Regional Director, NCTE [(2003)
3 SCC 321] this Court explained the scope and purpose of delegated legislation
thus: (SCC p. 331, para 10)
“10. A regulation is a rule or order prescribed by a superior for the
management of some business and implies a rule for general course of
action. Rules and regulations are all comprised in delegated legislations.
The power to make subordinate legislation is derived from the enabling Act

49

and it is fundamental that the delegate on whom such a power is conferred
has to act within the limits of authority conferred by the Act. Rules cannot
be made to supplant the provisions of the enabling Act but to supplement it.
What is permitted is the delegation of ancillary or subordinate legislative
functions, or, what is fictionally called, a power to fill up details. The
legislature may, after laying down the legislative policy confer discretion on
an administrative agency as to the execution of the policy and leave it to the
agency to work out the details within the framework of policy. The need for
delegated legislation is that they are framed with care and minuteness when
the statutory authority making the rule, after coming into force of the Act, is
in a better position to adapt the Act to special circumstances. Delegated
legislation permits utilisation of experience and consultation with interests
affected by the practical operation of statutes.”
(emphasis supplied)

20.9. These principles have been reaffirmed in Naresh Chandra Agrawal v.
27
ICAI , wherein this Court clarified the doctrine of ultra vires and laid down a
structured test. It was also emphasised that where a statute confers a general
power along with enumerated heads, the latter are illustrative and do not restrict
the amplitude of the general power, so long as the subordinate legislation
advances the object of the Act. The following paragraphs are apposite:
“15. There is a presumption in favour of constitutionality or validity of a
subordinate legislation and the burden is upon him who attacks it to show that it
is invalid. It is also well recognised that a subordinate legislation can be
challenged under any of the following grounds:
(a) Lack of legislative competence to make the subordinate legislation.
(b) Violation of fundamental rights guaranteed under the Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or exceeding the
limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/unreasonableness (to an extent where the court might
well say that the legislature never intended to give authority to make such
rules).”

27
(2024) 13 SCC 241

50

(emphasis supplied)
37. From reference to the precedents discussed above and taking an overall
view of the instant matter, we proceed to distil and summarise the following
legal principles that may be relevant in adjudicating cases where subordinate
legislation are challenged on the ground of being “ultra vires” the parent Act:
37.1. The doctrine of ultra vires envisages that a rule-making body must
function within the purview of the rule-making authority, conferred on it by the
parent Act. As the body making Rules or Regulations has no inherent power of
its own to make rules, but derives such power only from the statute, it must
necessarily function within the purview of the statute. Delegated legislation
should not travel beyond the purview of the parent Act.
37.2. Ultra vires may arise in several ways; there may be simple excess of power
over what is conferred by the parent Act; delegated legislation may be
inconsistent with the provisions of the parent Act; there may be non-compliance
with the procedural requirement as laid down in the parent Act. It is the function
of the courts to keep all authorities within the confines of the law by supplying
the doctrine of ultra vires.
37.3. If a rule is challenged as being ultra vires, on the ground that it exceeds
the power conferred by the parent Act, the Court must, firstly, determine and
consider the source of power which is relatable to the rule. Secondly, it must
determine the meaning of the subordinate legislation itself and finally, it must
decide whether the subordinate legislation is consistent with and within the
scope of the power delegated.
37.4. Delegated rule-making power in statutes generally follows a standardised
pattern. A broad section grants authority with phrases like “to carry out the
provisions” or “to carry out the purposes”. Another sub-section specifies areas
for delegation, often using language like “without prejudice to the generality of
the foregoing power”. In determining if the impugned rule is intra vires/ultra
vires the scope of delegated power, courts have applied the “generality vs.
enumeration” principle.
37.5. The “generality vs. enumeration” principle lays down that, where a statute
confers particular powers without prejudice to the generality of a general power
already conferred, the particular powers are only illustrative of the general
power, and do not in any way restrict the general power. In that sense, even if
the impugned rule does not fall within the enumerated heads, that by itself will
not determine if the rule is ultra vires/intra vires. It must be further examined if
the impugned rule can be upheld by reference to the scope of the general power.
37.6. The delegated power to legislate by making rules “for carrying out the
purposes of the Act” is a general delegation, without laying down any guidelines
as such. When such a power is given, it may be permissible to find out the object
of the enactment and then see if the rules framed satisfy the Act of having been
so framed as to fall within the scope of such general power confirmed.
37.7. However, it must be remembered that such power delegated by an
enactment does not enable the authority, by rules/regulations, to extend the
scope or general operation of the enactment but is strictly ancillary. It will

51

authorise the provision of subsidiary means of carrying into effect what is
enacted in the statute itself and will cover what is incidental to the execution of
its specific provision. In that sense, the general power cannot be so exercised as
to bring into existence substantive rights or obligations or disabilities not
contemplated by the provisions of the Act itself.
37.8. If the rule-making power is not expressed in such a usual general form but
are specifically enumerated, then it shall have to be seen if the rules made are
protected by the limits prescribed by the parent Act.

20.10. Applying the aforesaid principles, the impugned bye-laws are clearly
intra vires for the reasons that the source of power is directly traceable to
Section 8 read with Schedule B (Clauses (da) and (v)), participation and
representation are expressly contemplated by the Act, the bye-laws supplement
and do not supplant the statutory framework and they further the purpose of
ensuring functional, accountable and democratic governance.

20.11. The contention that the Act suffers from excessive delegation is equally
untenable. The policy of the Act is clearly discernible from its scheme and from
the specific subject matters enumerated in Schedule B. The delegation under
Section 8 is structured, confined to defined heads, and circumscribed by the
requirement of consistency with the Act and the Rules. The exercise of such
power remains subject to statutory oversight by the Registrar and to judicial
review on settled grounds.

20.12. The High Court’s view that bye-laws cannot regulate electoral
participation is equally unsustainable. Section 32 of the Act, 2001 expressly

52

incorporates bye-laws into the electoral framework, thereby recognising their
role in structuring representation and governance within the co-operative.

20.13. While Section 123 empowers the State Government to frame Rules
prescribing qualifications or disqualifications for membership and voting, such
rule-making power does not exclude the authority of co-operative societies to
regulate incidents of membership participation and representation through bye-
laws in matters entrusted to them under Section 8 read with Schedule B. The
two operate in distinct yet complementary spheres.

20.14. It is submitted that no specific Rules have been framed governing
participation-linked conditions of representation in federal co-operatives. This
does not create the source of power, but indicates that the Act presently leaves
this field to be governed by bye-laws. Even where Rules are framed, the validity
of bye-laws would fall to be tested on the touchstone of consistency, not
exclusivity.

20.15. Viewed thus, the impugned bye-laws neither add to the statutory
disqualifications under Section 28 nor trench upon the rule-making domain
under Section 123. The Rules may prescribe general disqualifications and voting
disabilities of a uniform character, whereas the impugned bye-laws regulate
participation-linked entitlement of a member-society to be represented in the

53

management of a federal co-operative. They therefore operate in a distinct,
permissible, and statutorily recognised field.

Non-joinder of necessary parties and impermissible in rem invalidity
21. An additional and fundamental infirmity lies in the manner in which the
High Court adjudicated upon the validity of the impugned bye-laws.

21.1. The writ petitions were instituted only by certain District Milk Unions.
However, the High Court proceeded to strike down the impugned bye-laws in
their entirety, thereby rendering them inoperative across all similarly placed
co-operative societies in the State including those who were neither impleaded
nor heard. As already mentioned, such an adjudication clearly operates in rem ,
affecting a class of autonomous co-operative societies.

21.2. A determination of such wide amplitude could not have been rendered in
the absence of all affected parties. At the very least, the High Court ought to
have ensured issuance of notice and an opportunity of hearing to those societies
whose rights and governance structures and internal regulations stood directly
affected. The failure to do so strikes at the root of audi alteram partem , a
foundational principle of natural justice.

21.3. In Dattatreya and others v. Mahaveer and others (supra) , this Court held
that failure to implead affected parties in writ proceedings vitiates the
adjudication where such parties are directly impacted. It was emphasised that

54

such omission is not a mere technical defect, but a substantive violation of the
principle of fair hearing, especially where the outcome affects vested rights or
prior legal positions. The following paragraph is pertinent:

“10 …By not impleading the present respondents as parties in Writ Petition No.
5495 of 1992 the appellants deprived the respondents of an opportunity to
challenge that order; rather they were kept in the dark about the whole
proceeding. Any order to consider the application of the appellants moved in
1985 was likely to affect the order dated 3-7-1979 passed in favour of the
respondents. The appellants knew it, being parties in the earlier proceedings of
1974. The fact thus remains that the material facts were not brought to the
notice of the Court and the persons who were ultimately to be affected were
avoided to be impleaded as parties. It was merely not a question of non-
impleadment of necessary parties technically and strictly in accordance with the
provisions of the Code of Civil Procedure rather was very much a question of
proper parties being there before the court particularly in proceedings under
Article 226 of the Constitution-…”

28
21.4. In High Court Bar Association Allahabad v. State of U.P. , this Court
underscored that orders affecting rights cannot be passed without hearing
affected parties. It was further clarified that the jurisdiction of constitutional
courts, though wide, is confined to doing justice between the parties before it,
and cannot be exercised to the prejudice of non-parties who have derived rights
under existing legal arrangements. The relevant paragraphs are extracted below:
“20. Elementary principles of natural justice, which are well recognised in our
jurisprudence, mandate that an order of vacating interim relief or modification
of the interim relief is passed only after hearing all the affected parties. An order
of vacating interim relief passed without hearing the beneficiary of the order is
against the basic tenets of justice. Application of mind is an essential part of any
decision -making process…If an interim order is automatically vacated without
any fault on the part of the litigant only because the High Court cannot hear the
main case, the maxim “actus curiae neminem gravabit” will apply. No litigant
should be allowed to suffer due to the fault of the court. If that happens, it is the
bounden duty of the court to rectify its mistake.”

28
(2021) 7 SCC 77

55

“27.1. The jurisdiction can be exercised to do complete justice between the
parties before the Court. It cannot be exercised to nullify the benefits derived by
a large number of litigants based on judicial orders validly passed in their
favour who are not parties to the proceedings before this Court.”

21.5. Applying the aforesaid principles, the impugned judgment suffers from a
clear jurisdictional and procedural infirmity. By invalidating bye-laws of
societies that were not before the Court, the High Court effectively deprived
them of an opportunity of hearing and unsettled their internal governance
structures and affected their legal rights without due process.

21.6. Such an exercise is impermissible in proceedings under Article 226,
which are fundamentally structured around adjudication of rights inter parties ,
unless the proceedings are properly constituted in a representative capacity or all
affected parties are before the Court. Neither condition stood satisfied in the
present case. The High Court therefore transgressed the limits of its writ
jurisdiction.

CONCLUSION
22. For the aforesaid reasons, it is evident that the impugned bye-laws operate
within the statutory scheme of the Act, 2001. They are traceable to the enabling
power under Section 8 read with Schedule B and regulate eligibility and
representation in a manner consistent with the object and scheme of the Act.
The said bye-laws neither curtail any fundamental or statutory right nor do they
introduce any disqualification dehors the statute. However, the High Court fell

56

into manifest error in striking down the impugned bye-laws. The impugned
judgment proceeds on a misapprehension of the statutory framework, an
erroneous conflation of the right to vote with the distinct right to contest, and a
failure to appreciate the settled distinction between eligibility conditions and
disqualifications. Additionally, the High Court committed a jurisdictional error
in granting relief operating in rem in the absence of necessary and affected
parties. The impugned judgment is therefore unsustainable in law and is liable to
be set aside.
23. Accordingly, this appeal stands allowed. The impugned judgment and
order of the High Court are set aside. There shall be no order as to costs.
24. Pending application(s), if any, shall stand disposed of.

.…………………………J.
[B.V. NAGARATHNA]



.…………………………J.
[R. MAHADEVAN]
NEW DELHI;
APRIL 10, 2026.