The main legal point established in the judgment is that a Cooperative Society is precluded from making stipulations through Bye-law in respect of subjects which are to be exclusively dealt with by the State Government in exercise of its rule making power under Section 123 of the Act of 2001.

ORDER :

1. The present writ petition has been filed against the order dated 28.06.2023 (Annexure-6) whereby the nomination forms of the petitioners for the election of Members of the Board of Directors (for short hereinafter referred to as ‘BOD’) of Udaipur District Cooperative Land Development Bank Limited, Udaipur have been rejected holding them to be ineligible/invalid.

2. The facts of the case are that vide order dated 29.05.2023, the programme for election of the Delegate Body in the first step and for Members of the BOD in the second step was issued. The petitioners, who were elected for the delegate body, being eligible to contest for a Member of the BOD, submitted their nomination forms in the requisite format. However, the nomination forms of all the 15 members who filled up the forms, were rejected vide order impugned (Annexure-6) dated 28.06.2023 holding them to be invalid. The reason given for the said rejection was that none of the members was qualified in terms of Clause 26A(6) of the bye laws governing the bank.

3. Before adverting further in the matter, it is relevant to note that in the complete writ petition as well as reply to the writ petition, the impugned Clause has been mentioned to be Clause 26.6 whereas a perusal of the bye laws (Annexure-8) makes it clear that the same is Clause 26A(6).

Both the counsels admitted that the same has been inadvertently mentioned and the same be read to be Clause 26A(6).

In view of the admission and submission made by both the counsels, the Clause 26.6 as referred in the writ petition is read by this Court to be Clause 26A(6).

4. Sub Clause 6 of Clause 26A of the bye laws provides that any member who has not availed any loan in the period of last five years would not be eligible to be appointed/nominated as a Member of BOD. The validity of said condition No. 26A(6) of the bye laws is also under challenge in the present writ petition.

5. Learned counsel for the petitioners submits that a similar issue dealing with specific clauses pertaining to disqualification of the Member of BOD was under consideration before the Division Bench of this Court in D.B. Special Application Writ No. 704/2015; State of Rajasthan vs. Roop Nagar Dugdh Utpadak Sahakari Samiti Ltd. and Another (decided on 18.05.2022). Learned counsel submitted that the issue in question would be squarely covered by the ratio laid down by the Division Bench in Roop Nagar’s case.

6. Learned counsel for the respondents is not in a position to refute the above position of law and also the fact that the present issue would be governed by the ratio laid down in the cases of Pukhraj Mehta vs. State of Rajasthan and Others, 1995 (2) WLC 140 and Roop Nagar (supra).

7. The issue in Pukhraj Mehta and Roop Nagar’s case (supra) was whether a Co-operative Society is empowered to frame any Bye-law pertaining to qualification or disqualification of the Member of the Co-operative Society beyond the matters as incorporated in Schedule B to the Rajasthan Co-operative Societies Act, 2001 (for short hereinafter referred to as, ‘the Act of 2001’)? In Roop Nagar’s case (supra), the Division Bench held has under:

“7. It is a well settled position of law that a subordinate legislation cannot supersede a parent legislation. In exercise of bye law making power, a Cooperative Society cannot make bye laws in respect of the matters beyond those incorporated in Schedule B appended to the Act of 2001. A Cooperative Society is precluded from making stipulations through bye laws in respect of subjects which are to be exclusively dealt with by the State Government in exercise of its rule making power under Section 123 of the Act of 2001.

8. By a plain reading of Schedule-B, it comes to fore that a Cooperative Society is not empowered to frame any bye law pertaining to qualification or disqualification of a Cooperative Society and thus, the impugned bye laws do not stand to scrutiny because they were framed by the Milk Union which has no jurisdiction to act i