JUDGMENT - Chanditrkar, Actg. C. J.-This petition under Art. 226 of the Constitution of India raises an important question as to whether the wrongful rejection or acceptance of a nomination paper by a returning officer appointed for con- ducting an election of members of a managing committee to be constituted under section 73 of the Maharashtra Co-operative Societies Act, 1960 (here inafter referred to as “the Act”) can be challenged under Article 226 of the Constitution. 2. The co-operative society in the instant case is known as Arjunwada Vividh Karyakari Seva Sahakari Society Ltd., which was registered under the Bombay Co-operative Societies Act, 1925 and is now deemed to be registered under the Act. The main business of the society consists of providing loans, fertlizers, seeds and other agricultural implements to the agriculturists-members. The day to day management of the society is vested in a Managing Committee duly constituted by virtue of the provisions of section 73 of the Act which provides that the management of every society shall vest in a committee constituted in accordance with the Act, the Rules and the Bye-laws. 3. The election programme for the election of members of the Managing Committee was declared by the present Managing Committee, according to which, the last date for filing nominations was 16th August 1982 the date for scrutiny of nominations was 19–8-1982 ; the date for publication of valid nomination was 20–8-1982 and the date for voting, counting and declaration of results was 2–9-1982. 4. In all, 14 nominations were received for the membership of the Managing Committee, out of which 9 nominations were of persons who belonged to the petitioner's group. But these, according to the petitioner, were rejected on 19th August 1982 by respondent No. 3, who is the Returning Officer, on false and frivolous grounds. Thgre is no dispute that the nomination papers have been rejected on the* ground that the candidates have failed to submit the declaration as contemplated by section 48 clause (a) of the Act. . 5. Thgre is no dispute that the nomination papers have been rejected on the* ground that the candidates have failed to submit the declaration as contemplated by section 48 clause (a) of the Act. . 5. Clause (a) of section 48 of the Act reads as follows : - “Notwithstanding anything contained in this Act or in any other law for the time being in force,- (a) any person who makes an application to a society of which he is a member, for a loan shall if he owns any land or has interest in any land as tenant, make a declaration in the form prescribed. Such declaration shall state that the applicant thereby creates a charge on such land or interest specified in the declaration for the payment of the amount of the loan which the society may make to the members in pursuance of the application, and for all future advance (if any) required by him which the society may make to “him as such member subject to such maximum as may be determined by the society, together with interest on such amount of the loan and advance...” The relevant portion of bye-law 12 of the Society made in exercise of the power under section 165 clause (xxx) provides that any person who is required to make a declaration as required by section 48 of the Act and rule 48 of the Maharashtra Co-operative Societies Rules 1961 (hereinafter referred to as “the Rules”) will not be entitled to exercise any right as a member unless he has made such a declaration”. Rule 48 of the Rules deals with “Form of* declarations to be made by members borrowing loans from certain societies and conditions on which charge in favour of a society shall be satisfied”. Relevant clauses (1) and (2) of rule 48 read as follows: - “(1) A declaration to be made under elauses (a) and (b) of section 48 shall be in Form 'L'. (2) A register of such declarations shall be kept by the society in Form 'M.'” 6. According to the petitioner, the rejections of the nomination papers was unjustified because the declaration in 'L' form under section 48 of the Act is noted in VI1/XII extracts under “other rights” column and that all the six persons including the petitioner had made their declarations in form 'L' in accordance with section 48 of the Act. According to the petitioner, the rejections of the nomination papers was unjustified because the declaration in 'L' form under section 48 of the Act is noted in VI1/XII extracts under “other rights” column and that all the six persons including the petitioner had made their declarations in form 'L' in accordance with section 48 of the Act. An alternative stand is taken that even assuming that the petitioner had not given the declaration, even then respondent No* 3 could not have rejected the nomination of the petitioner on the said false and frivolous grounds. 7. In the affidavit filed by the Chairman of respondent No. 4, society, the rejection of the nomination paper is justified on the ground that the petitioner had in fact not made any declaration as required by section 48 read with rule 48 and as required by bye-law 12 and, therefore, respondent No. 3, who was duly appointed as the Election Officer by the order of the Assistant Registrar of Co-operative Societies on 22nd July 1982, was justified in rejecting the nomination paper. It is also stated that the record of the society shows that the declaration forms with the society do not contain a declaration made by the petitioner and that the list maintained by the society of those persons, who have made the declaration, do not containthe name of the petitioner. 8. When the order of the Returning Officer rejecting the nomination paper of the petitioner was challenged in this writ petition, a preliminary point has been raised on behalf of the respondents by Mr. Bhimrao Naik that having regard to the earlier decision of this Court in Madhukar v. Sheshraq,1 the writ petition must be rejected on the ground that it was not maintainable as having been filed challenging the order of the Returning Officer rejecting the nomination paper. 9. The question as to whether an order of wrongful rejection or acceptance of a nomination paper by a Returning Officer, who is appointed to conduct elections to the Managing Committee of a co-operative society, as contemplated by section 73 of the Act, has been raised in several petitions. In one such petition Mr. Ajit P. Shah appears for the respondent and he has also contended that having regard to the decision of the Division Bench in Madhukar v.Sheshrao (cited supra), the writ petition was liable to be rejected. In one such petition Mr. Ajit P. Shah appears for the respondent and he has also contended that having regard to the decision of the Division Bench in Madhukar v.Sheshrao (cited supra), the writ petition was liable to be rejected. The decision in Madhukar v. Sheshrao (supra) is a Division Bench decision and if Mr. Bhimrao Naik and Mr. Shah were right that that decision held that an order of a Returning Officer conducting elections to the Managing Committee of a co-operativg society, as contemplated by section 73 of the Act is not open to challenge under Article 226 of the Constitutiun of India, we would have normally followed that decision and if we were inclined to take a different view, we would have made a reference to a Full Bench. 10. On a careful scrutiny of the decision in Madhukar v. Sheshrao, how-ever, we find that the question as to whether a Returning Officer conducting elections under section 73 of the Act is or is not amenable to the jurisdiction under Article 226 of the Constitution of India did not fall for conside-ration before the Division Bench in that case. Since we have been told that many writ petitions directed against orders of the Returning Officer under the Co-operative Societies Act have been summarily rejected in view of that decision it becomes necessary to analyse that decision. 11. All that has been held in that decision {Madhukar v. Sheshrao), by the Division Bench is that a wrong rejection or acceptance of nomination papers cannot form the subject-matter of a dispute contemplated by section 91 of the Act if such dispute is raised before the delaration of the result of the election. The society in that case was a federal co-operative society and the election to the Managing Committee of the said society was scheduled to be held on*16th September 1967. The nominations were to be submitted on or before 2nd September 1967 and after scrutiny on 4th September 1967, the list of the candidates contesting the election was to be published on 8th September 1967. Before the date on which election was to be held, that is, 16th September 1967, the respondent Sheshrao made an application purport-ing to be one under section 91 of the Act contending that though some of the member-societies were disqualified, they were allowed to contest the election. Before the date on which election was to be held, that is, 16th September 1967, the respondent Sheshrao made an application purport-ing to be one under section 91 of the Act contending that though some of the member-societies were disqualified, they were allowed to contest the election. The Registrar's Nominee heard this application and by an order dated 15th April 1968 rejected the nomination papers of the petitioner Madhukar as well as four of the respondents. This order of the Registrar's Nominee was challenged in appeal before the Maharashtra State Co-operative Tribunal. The Tribunal took the view that the dispute in question, that is, the dispute with regard to wrongful acceptance of nomination paper was not one contemplated by section 91 of the Act and hence no appeal lay to the Tribunal. The appeal was thus dismissed. The order of the Tribunal dis- missing the appeal was challenged by a petition under Article 226 of the Constitution. 12. The contention before the Division Bench raised on behalf of the petitioner was that the wrong rejection or acceptance of nomination papers canaot form the subject-matter of a dispute contemplated by section 91 of the Act if such a dispute is raised before the declaration of result of the election. The limited question before the Division Bench, therefore, was with regard to the scope of section 91 of the Act and the question was whether before the result of the election was declared, the dispute with regard to wrongful rejection or acceptance of a nomination paper can be raised under section 91 of the Act. The Division Bench referred to two decisions of the Supreme Court in (N. B. Khare v. Election Commission),2 and (N. P. Ponnu-swami v. Returning Officer),3 and the Division Bench came to the conclusion as follows :- “In view of the above two decisions of the Supreme Court, it is clear that respondent No. l's application in effect contending that the nomina- tion papers of the petitioner and respondents Nos. 2 to 5 were wrongly accepted could not be entertained before the declaration of the results of the election.” An argument was then advanced before the Division Bench on behalf of the respondent No. 1 in that case that though the dispute in question may not be a dispute under section 91, the Registrar's nominee was entitled to entertain the dispute in view of bye-law 23 (8), which was binding on all members of the federal society. The Division Bench took the view that bye-law 23 (8) did not apply to the facts of the case inasmuch as the grievance of respondent No. 1 was not that the nomination paper was wrongly rejected, but the grievance was just the converse of it namely, that the nomination papers of some members were wrongly accepted. The Division Bench took the view that on the wording of bye-law 23 (8) itself, it was clear that the said bye law did not empower the Registrar's nominee to decide the dispute raised by respondent No. 1. 13. The Division Bench also referred to an unreported decision of this Court in P. K. Patil v. R. N. Patil4, in which the learned Judge pointed out that in view of the clear wording of section 92, which provides a period of limitation for filing election disputes, an election dispute as contemplated by section 91 could not be filed nor entertained prior to the declaration of the result of the election. The view taken by Patel J. was approved by the Division Bench. 14. In the view which the Division Bench took, it was held that the application of respondent No. 1 dated 14th September 1967 was untenable and was wrongly entertained by the Registrar's nominee. The decision in Madhukar v. Sheshrao (supra) will,, therefore, show that all that the Division Bench held was that a wrong rejection or acceptance of a nomination paper cannot be made the subject-matter of a dispute under section 91 until the election has taken place and the result of the election has been declared. 15. It is no doubt true that the Division Bench has referred to the two decisions of the Supreme Court for reaching this conclusion. 15. It is no doubt true that the Division Bench has referred to the two decisions of the Supreme Court for reaching this conclusion. But a mere look at those two decisions will show that those two cases arose out of the election disputes under the Representation of the People Act and it was held that the challenge to improper acceptance or rejection of a nominationgaper could be made a ground for challenging the election only after the election has taken place, having regard to the provisions of Article 329(b) of the Constitution and section 80 of the Representation of the People Act. 16. It is necessary at this stage to refer to the provisions of Article 329 of the Constitution before the amendment by the Constitution (44th Amend-ment) Act, 1978. Article 329 read as follows :- “Notwithstanding anything in this Constitution but subject to the provisions of article 329A. (a) the validity of any law relating to the delimitation of consti-tuencies or the allotment of seats to such constituencies, made or pur-porting to be made under article 327 or article 328, shall not be called in question in any court; (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.” 17. While appreciating the decision in N. B. Khare v. Election Com- mission (supra) and in N. P. Ponnuswami v. Returning Officer (supra) it is necessary to bear in mind two main aspects of Article 329 of the Constitu- tion. Article 329 opens with a non-obstante clause and when it provided “Notwithstanding anything in this Constitution”, the effect was that Article 329 would exclude the operation of Article 226 of the Constitution which gives powers to the High Court to issue certain writs. Article 329 opens with a non-obstante clause and when it provided “Notwithstanding anything in this Constitution”, the effect was that Article 329 would exclude the operation of Article 226 of the Constitution which gives powers to the High Court to issue certain writs. The second important thing is that clause (b) of Article 329, with which Ponnuswami''s case (supra) was concerned, was in the nature of a mandatory provision which pre- vented the election to either House of Parliament or either House of the Legislature of a State from being called in question except by an election petition to be presented to such authority and in such manner as may be pro-vided by or under any law made by the appropriate Legislature. The relevant law is the Representation of the People Act and the provisions with regard to election petitions are made in part Vl of the Representation of the People Act, 1951. 18. Dealing with the question as to whether the Constitution contem- plated two attacks or two challenges on matters connected with the election proceedings, the Supreme Court observed as follows:- “The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extra-ordinary jurisdiction of the High Court under article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act which, as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court.” Referring to Article 329 (b), Fazal Ali J. in the same paragraph ob-served : “Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be expressed by the High Court at the pre-polling stage and by the elaction tribunal, which is to be an independent body, at the stage when the matter is brought up before it.” 19. The decision in Khare's case and in Fonnuswatni's case, therefore, expressly turned on the special provisions in section 329(b) of the Constitution which specifically dealt with the elections to the Parliament and elections to the State Legislature. There is nothing in the Division Bench decision in Madhukar v. Sheshrao, to indicate that the Division Bench was called upon to decide whether in a case, which does not arise out of the elections under the Constitution or under the Representation of the People, Act, a petition under Article 226 of the Constitution is wholly barred. Indeed any such argument advanced would have to be rejected outright because there can be no law, short of a constitutional provision, which can deprive the High Court of its power under Article 226 of the Constitution. We are, therefore, unable to uphold the argument that any petition filed challenging the order of the Returning Officer raising a question as to wrong acceptance or rejec-tion of a nomination paper must be rejected on the ground that such a petition does not lie, in the sense that there is a complete bar against filing of such a petition and that it should never be entertained. 20. Mr. Bhimrao Naik and Mr. Shah have placed reliance on a decision of another Division Bench reported in (Chandrakant v. District Deputy Registrar, Co-operative Societies, Nagpur)5. 20. Mr. Bhimrao Naik and Mr. Shah have placed reliance on a decision of another Division Bench reported in (Chandrakant v. District Deputy Registrar, Co-operative Societies, Nagpur)5. Now, that was a case in which the nomination papers of the petitioners for election as members of a managing committee of the society were rejected and when that rejection was challenged by a writ petition, the argument on behalf of the respondents was that “the matter constitutes a dispute under section 91 of the Maharashtra Co-oper*ative Societies Act, 1960, and the remedy of the petitioners is to file a dispute under that section after the elections of the Managing Committee are held.” The question which fell for consideration before the Division Bench was whether a dispute with regard to the election of the members of the Managing Committee is covered by section 91 of the Act because the argument advanced for the respondents was that section 91 of the Act referred to “elections “of the office bearers” and that expression covers the election of the members of the Managing Committee also. While dealing with that contention, the Division Bench referred to the definition of the term 'officer' in section 2(20) of the Act and took the view that it would not be proper to give restricted meaning to the expression “office bearer” and the term “office bearer” included a member of the Managing Committee. Having taken that view, the Division Bench held that the dispute would be covered by section 91 of the Act and the petitioners would have to seek their remedy under section 91 of the Act. There is nothing in this decision which indicates that a contention was raised before the Division Bench that notwithstanding the provisions of section 91 of the Act, the jurisdiction of the High Courtunder Article 226 of the Constitution of India could be invoked by the petitioner and he was not prevented fromraising a question that the Returning Officer had acted in excess of his statutory powers while rejecting a nomination paper and that on that ground the order of rejection of the nomination paper could be challenged under Article 226 of the Constitution of India. This decision also, in our view, does not, therefore, hold that the order of a Returning Officer wrongly rejecting or accepting a nomination paper can never be challenged under Article 226 of the Constitution. 21. This decision also, in our view, does not, therefore, hold that the order of a Returning Officer wrongly rejecting or accepting a nomination paper can never be challenged under Article 226 of the Constitution. 21. One more decision has been brought to our notice which is also of a Division Bench. That is in Special Civil Application No. 2550 of 1973 decided on 23rd September 1975 by Vimadalal and Sapre JJ. The petitioners in that petition had applied for deletion of the names of respondents Nos. 3 to 47 from the voters' list. This request was rejected and the order of rejec- tion and the further order fixing the programme of the election was challeng- ed by a writ petition under Article 226 of the Constitution. A preliminary objection to the maintainability of the petition was raised on the authority of the decision in Madhukar v. Sheshrao, there being no dispute that respon- dent No. 1 in that case was a co-operative sugar factory and was a register- ed society under the Act. The Division Bench followed the decision in Madhukar v. Sheshrao and held that the preparation of an electoral roll was a stage in the process of election and the question as to whether the names of respondents Nos. 3 to 47 were wrongly included in the voters' list arose in the process of election and that question could not be raised until the election was held and thereafter only by means of an election petition and no writ petition Jay in the High Court wider Article 226 of the Constitution to challenge that intermediate stage in the election. The petition was thus dismissed in view of the decision in TV. B. Khare's case and Ponnuswami's case. Now, even in this decision, we have not found any argument expressly raised or considered that the constitutional bar under Article 329 (b) was not relevant under the scheme of elections contemplated by the provisions of the Maharashtra Co-operative Societies Act, 1960. 22. When a petitioner comes to this Court under Article 226 of the Constitution challenging a wrong rejection or acceptance of a nomination paper, two courses, in our view, are open to this Court. 22. When a petitioner comes to this Court under Article 226 of the Constitution challenging a wrong rejection or acceptance of a nomination paper, two courses, in our view, are open to this Court. Firstly, the ques- tion to be faced at the very threshold is whether a writ can issue to a Return- ing Officer and secondly, if a Returning Officer is amenable to the jurisdic- tion of this Court under Article 226, on the facts of a given case, whether this Court will exercise its discretion in favour of the petitioner or not. The first question* relates to the maintainability of the petition. The second question relates to the exercise or the non-exercise of the power under Article 226 on the facts of each case and this must be governed by the well-known principles. One of the principles relevant will be that where an election process is challenged, if the order of the Returning Officer is on the face of it so patently erroneous or without jurisdiction, it will be improper to ask the petitioner to wait till the whole process of election is over and then challenge that order by way of an election dispute under section 91 of the Act which is a time consuming procedure. 23. The argument which has been advanced on behalf of the respon- dents in the instant case on the basis of earlier decisions really comes to this that every petition filed against a wrongful rejection or acceptance of a nomination paper must be rejected in limine out of hand merely on the ground that it is filed against the order of a Returning Officer and could not be entertained at all and the petitioner must be asked to file an election petition after the election. This, in our view, would be a wholly erroneous approach in view of the fact that powers and jurisdiction of this Court under Article 226 of the Constitution can never be taken away even by a statute. It can never be argued that in no case can a petition under Article 226 be filed in an election matter even though the provisions of Article 329 are not attracted to the facts of the case. It can never be argued that in no case can a petition under Article 226 be filed in an election matter even though the provisions of Article 329 are not attracted to the facts of the case. That such petitions* against wrongful rejection or acceptance of nomination paper have been entertained on earlier occasions is clear from observations of a Division Bench of this Court in (Suleman v. Municipal Commissioner)6. That was a case arising out of the provisions of the Bombay Provincial Municipal Corporations Act. When the order of the Returning Officer, namely, the Municipal Commissioner overruling the objections to the validity of a nomination paper was challeng-ed under Article 226 of the Constitution, it was contended before the Division Bench that the election was still to be held and that it would be open to the petitioner to challenge the election on the ground that the nomination papers of opponent No. 2 have been wrongly accepted and the High Court should not exercise its powers under Articles 2/6 and 227 and reliance was also placed on the decision in H. P. Ponuuswami's case. The Division Bench pointed out that Ponnuswimi's case was one under the Representation of the People Act, which had to be decided in the light of Article 329 of the Constitution under which no election can be called in question except by an election petition presented after the ejection is over. The Division Bench referred to a decision of the Calcutta High Court in (Narendra Nath v. Bally Municipality)7, in which the Calcutta High Court after referring to the deci-sion in Ponnuswami's case held that the High Court had jurisdiction to and may interfere even at the pre-election stage, if it finds that the candi-date's nomination paper for a municipal election had been improperly reject-ed. The respondents in that case had also relied on an earlier decision of this Court in Shankar Nanasaheb v. Returning Officer, Kolaba8, which was again a case of an election to the Bombay Legislative Assembly and it was held that in view of Article 329 (b) of the Constitution, the only way in any matter relating to or in connection with such an election can be called in question is by an election petition and that consequently the High Court could not issue a writ under Article 226 of the Constitution in order to correct the decision of a Returning Officer before the election was held. The Division Bench after referring to Shankar Nanasaheb's case observed as follows : - “Since then numerous cases have come before this Court, in which this Court has interfered at the pre-polling stage or before the election took place. It seems to us that it would not be right or proper to lay down any hard and fast rule in this matter. In (Dr. Narayan Bhaskar Khare v. Election Commission of India)9, it has been stated that “the well-recognised principle of election law, Indian and English, is that election should.not be held up and that the person aggrieved should not be permitted to ventilate, his individual interest in derogation of the general interest of the people, which requires that election should be gone through according to the time schedule”. Ordinarily the High Court should not therefore stay an election or pass any order which will result in the election being postponed. Where, however, the matter is brought before the High Court sufficiently in advance, where the matter can be heard and disposed of before the polling is due to take place and where there is an error apparent on the face of the record, we see no reason why this Court should not correct that error For instance, if a returning •officer rejects a nomination on wholly inadequate grounds, it would save public time and money, as well as expense, inconvenience and hardship to the parties, if the returning officer's action is corrected before the election takes place. In our opinion, therefore, relief should not be refused merely because the petitioner can pursue another remedy by filing an election peti- tion after the election is held. In our opinion, therefore, relief should not be refused merely because the petitioner can pursue another remedy by filing an election peti- tion after the election is held. Each case should be considered on its own facts and where without staying or postponing the election it is possible to put matters right before the election takes place, it may in appropriate cases be desirable to do so.” (Emphasis supplied.) These observations have our respectful concurrence. 24. It is no doubt true that these observations were made by the Division Bench in the context of elections under the Bombay Provincial Municipal Corporations Act, but we see no reason why the same principle should not apply in the case of an election under the Maharashtra Co-operative Societies Act if the Returning Officer is otherwise amenable to the jurisdiction of this Court under Article 226 of the Constitution of India. 25. Time and again petitions have been filed in this Court which showed that in the matter of elections to co-operative societies, nomination papers are rejected by the Returning Officer on grounds which are many times wholly untenable and this Court cannot abdicate its powers under Article 226 of the Constitution of India and decline to look into the legality of tie orders of the Returning Officer if he is amenable to the writ jurisdiction of this Court and ask the aggrieved parties to wait till the elections take place and then challenge those ejections under section 91 of the Act which is a time consuming process. The inevitable result of such a course is that persons who would get elected without a proper contest and election would continue to be in charge and management of the affairs of a society-a state of affairs which certainly cannot be said to be congenial and in the interest of the co-operative institutions and must be avoided if it is possible to do so. 26. It does not appear that the decision in Suleman's case was cited before the Division Bench which decided Madhukar v. Sheshrao, though it was a decision rendered almost 9 years before that decision. 27. The next question which must necessarily arise is whether a Returning Officer like the one in the instant case is a person to whom a writ can validly issue under Article 226 of the Constitution of India. 28. 27. The next question which must necessarily arise is whether a Returning Officer like the one in the instant case is a person to whom a writ can validly issue under Article 226 of the Constitution of India. 28. It is no doubt true that the Returning Officer is not a statutory authority under the Co-operative Societies Act. He is a creation of bye-lawsand rules made with regard to the conduct of the elections. We have already referred to the provisions of section 73 which statutorily require that the Committee,' which is entrusted with the task of management of the society, has to be constituted in accordance with the Act, the Rules and the Bye-laws of the society. Section 165 of the Act embodies the rule-making power of the State Government. One of the subjects in respect of which the said power can be exercised by the State Government is in clause (iii) of section 165 (2). Under that provision such rules may describe the matter in respect of which a society may make, or the Registrar may direct the society to make, bye-laws and (he procedure to be followed in* making, altering and abrogating bye-laws and conditions to be satisfied prior to such making, alteration and/or abrogation. Under clause (xl) of section 165(2), rules can be made requiring bye-laws to be framed prescribing qualifications for members of the Committee and employees of a society or class of society, duties to be performed by and several and joint liabilities therefore of such members and conditions of service subject to which a person may be employed by a society. 29. When we go to the Rules, we find that rule 8 prescribes matters in respect of which Registrar may direct society to make bye-laws or society may make bye-laws. Under clause (o) of rule 8, the Registrar can require the society to make bye-laws providing for the mode of appointment either by election or otherwise and removal of members of the committee and other officer, if any, their duties and powers. Clause (y) deals with “the conduct of elections to the committee and other bodies of the society as provided in the bye-laws, including the number of members to be elected by different constituencies and appointment of Returning Officer”. Clause (y) deals with “the conduct of elections to the committee and other bodies of the society as provided in the bye-laws, including the number of members to be elected by different constituencies and appointment of Returning Officer”. So far as the bye-laws are concerned, the Registrar exercises considerable amount of control on the bye-laws by virtue of the statutory powers vested in him under sections 13 and 14. Under section 13 no amendment of the bye-laws of a society is valid until registered under the Act and for the purpose of registra- tion of an amendment of the bye-laws, a copy of the amendment passed in the manner prescribed at a general meeting of a society is to be forwarded to the Registrar. There is also power under section 14 in the Registrar to call upon the Society to make any particular amendment if it appears to the Registrar that an amendment of the bye-laws of a society is necessary or desirable in the interest of the society. 30. So far as the present society is concerned, the bye-laws are styled as “Election Rules”. Under rule 25 of the Election Rules, which are really bye-laws, a provision is made that the Managing Committee shall suggest a name of a Returning Officer and the name shall be got approved from the District Deputy Registrar. The Returning Officer is entitled to take the assistance of other persons, if necessary, at the polling booth. There are several duties of the Returning Officer, which have been prescribed under the Rules, such as fixing of the voting time, deciding upon polling booth, making proper arrangements at the polling centres, restricting admission to the polling centres, stopping of voting at the fixed time. There are many other duties in the context of elections with which he is entrusted. 31. Now, what is argued before us on behalf of the respondent No. 5 by Mr. Bhimrao Naik as well as by Mr. Shah in the other petition is that these bye-laws do not have any higher status than an agreement between the parties and they cannot, therefore, be enforced under Article 226 and, there-fore, a writ under Article 226 of the Constitution will not lie to the Returning Officer. Bhimrao Naik as well as by Mr. Shah in the other petition is that these bye-laws do not have any higher status than an agreement between the parties and they cannot, therefore, be enforced under Article 226 and, there-fore, a writ under Article 226 of the Constitution will not lie to the Returning Officer. Reference has been made to a decision of the Supreme Court in Co-operative Central Bank v. Industrial Tribunal, Hyderabad10, in which the Supreme Court has made the following observations in paragraph 10- “We are unable to accept the submission that the bye-laws of a co-operative 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 incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a co-operative 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... The bye-laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such Articles of Association havene never been held to have the force of law. In a number of cases, conditions of service* for industries are laid down by Standing Orders certified under the Industrial Employment (Standing Orders) Act, 1946, and it has been held that, though such Standing Orders are binding between the employers and the employees of the industry governed by these Standing Orders, they do not have such force of law as to be binding on Industrial Tribunal adjudicating an industrial dispute.” 32. Now, so far as the jurisdiction of the High Court under Article 226 to issue writs to non-statutory authorities is concerned, it is now settled law that a mandamus lies to secure performance of a public or statutory duty, though it is not necessary that the person or authority on whom the statutory duty is cast need be a public official or an official body. In (Praga Tools Corporation v. C. V. Imanual)11, the Supreme Court has observed in para-graph 6 as follows :- “No doubt, Article 226 provides that every High Court shall have power to issue to any person or authority orders and writs including writs in the nature of habeas corpus, mandamus, etc. or any of them for the enforcement of any of the rights conferred by Part 111 of the Constitution and for any other purpose. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of reinstate-ment to an office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute Therefore, the condition, precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requir-ing him or them to do a particular thing therein specified which apper-tains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings.” 33. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings.” 33. The above observations of the Supreme Court clearly lay dgwn that it is only the performance of a public or a statutory duty in the perform- ance of which the petitioner has a sufficient legal interest for which a mandamus can be issued. Therefore, it becomes necessary to find out whe- ther the Returning Officer is required to perform a legal duty or a statutory duty which could be enforced under Article 226 of the Constitution. If it is possible to hold that in holding the elections and in the conduct of those elections, the Returning Officer, who no doubt is a private individual, is required to perform a statutory or a legal duty, we see no reason why, having regard to the ratio laid down by the Supreme Court in Praga Tools Corpora-lion case, anything done by him in the performance of his duty, if it is illegal or ultra vires his powers, cannot be set right at the instance of a person who is adversely affected by his decision and why such a person cannot approach this Court under Article 226. We might make it clear that this does not necessarily mean that this Court is bound to entertain a petition against the order of the Returning Officer and the question as to whether this Court will entertain such a petition or not will have to be decided on the facts and circumstances of each case and having regard to the well-known principles which govern the exercise of jurisdiction under Article 226 of the Constitu- tion. Entertaining a petition against the order of the Returning Officer or not entertaining it is different from holding that there is a complete bar against even approaching this Court challenging the order of the Returning Officer. 34. Section 73 of the Act, in our view, statutorily requires that the Managing Committee of every society has to be constituted not only in accor- dance with the Act and the Rules but also in accordance with the Bye-laws. 34. Section 73 of the Act, in our view, statutorily requires that the Managing Committee of every society has to be constituted not only in accor- dance with the Act and the Rules but also in accordance with the Bye-laws. Now, if section 73 requires the constitution of a Managing Committee in accordance with the Bye-laws also, then it obviously casts a statutory obliga- tion on the Returning Officer to comply not only with the Act and the Rules but also with the Bye-laws. Any decision which is not in conformity with the Bye-laws or which is in excess of the Bye-laws will clearly result in affecting the constitution of the Committee and infraction or violation of the provisions of section 73 of the Act. If it is, therefore, possible to show in a given case that at some stage of the constitution of the Committee, the order of the Returning Officer has the effect of the Committee being consti-tuted contrary to the mandate of section 73 of the Act and this mandate requires constitution in accordance with the Act, the Rules and the Bye-laws, the matter can be brought before this Court and if this Court is satisfied that in a given case, interfeience is necessary, the petition cannot be rejected in limine on the ground that it does not lie and the dispute must only be resolved by recourse to the machinery under section 91 after the result of the election is declared. 35. It is no doubt true that in the Co-operative Central Bank case the Bye-laws of a co-operative society have been described as being in the nature of Articles of Association of a company by the, Supreme Court. It is, how- ever, necessary to point out that the Bye-laws relevant in that case dealt with service conditions and any Bye-laws dealing with service conditions would be obviously binding on the employer and the employee as a part of a contract of employment. The matter before the SupremeCourt under the Andhra Pradesh Co-operative Societies Act arose out of a reference made by the Government of Andhra Pradesh to the Industrial Tribunal, Hyderabad, under section 10(1)(d) of the Industrial Disputes Act, 1947. The dispute related to service conditions as well as to transfers of some employees of two of th*e Banks and the quastio referred was as to to what relief the employees were entitled. The dispute related to service conditions as well as to transfers of some employees of two of th*e Banks and the quastio referred was as to to what relief the employees were entitled. The reference was challenged on the ground that it was invalid because such disputes were required to be referred to the Registrar of Co-operative Societies under section 61 and the effect of section 61 was to exclude the jurisdiction of the Industrial Tribunals to deal with the same dispute under the Industrial Disputes Act. This objection to the reference was rejected by the Tribunal and writ petitions were filed challenging the rejection of the objections to the writ petitions. The writ petitions were also rejected by the High Court holding that the disputes actually referred to the Tribunal were not capable of being decided by the Registrar of Co- operative Societies and consequently the reference to the Tribunal was competent. The question which fell before the Supreme Court for decision was whether the Industrial dispute referred to the Tribunal was such as was required to be referred to the Registrar and to be decided by him under sec- tion 61 of the Act. Section 61 of the Andhra Pradesh Co-operative Societies Act was similar to section 91 of the Act. The Supreme Court took the view that the issue with regard to service conditions could not possibly be referred for decision to the Registrar under section 91 of the Andhra Pradesh Co- operative Societies Act because it related to alterations of a number of con- ditions of service of the workmen,which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute. 36. Another contention which was raised before the Supreme Court was that the Industrial Tribunal had no jurisdicjion to deal with the dispute relating to conditions of service to the effect that the conditions of service having been made the subject-matter of bye-laws, the Industrial Tribunal will not be competent to alter them because even an Industrial Tribunal has no jurisdiction to make orders contrary to law. The argument on behalf of the Banks was that the bye-laws which contained the conditions of service are themselves law, so that any direction made by an Industrial Tribunal altering a condition of service contained in a bye-law would be an order contrary to law and hence illegal. The argument on behalf of the Banks was that the bye-laws which contained the conditions of service are themselves law, so that any direction made by an Industrial Tribunal altering a condition of service contained in a bye-law would be an order contrary to law and hence illegal. It was in that context that the Supreme Court observed that the bye-laws were in the nature of Articles of Associa-tion of a company incorporated under the Companies Act and had, therefore, no force of law. 37. It is necessary to point out that the provision like section 73 of the Act which mandatonly required the constitution of a Managing Com- mittee, in accordance with the Act, the Rules and the Bye-laws did not fall for consideration before the Supreme Court. While it may not be possible to dispute the general proposition, that bye-laws really form a contract bet- ween the parties, on that ground it is not possible to negative the argument that while implementing the, bye-laws in the matter of election, there is a statutory obligation on the Returning Officer having regard to the exercise of provisions of section 73 and rule 8 of the Rules. 38. We do not, therefore, think that the observations made by the Supreme Court in the Co operative Central Bank's case, bar this Court from entertaining a writ petition under Article 226 of the Constitution when a Returning Officer acts contrary to the bye-laws and, therefore, necessarily contrary to the provisions of section 73 of the Act when he rejects a nomination paper wrongly or accepts a nomination paper wrongly. 38A. Counsel on both sides have relied on some decisions of the Gujarat High Court in support of their respective arguments. 39. 38A. Counsel on both sides have relied on some decisions of the Gujarat High Court in support of their respective arguments. 39. A learned single Judge of the Gujarat High Court has taken the view in (Lambha S. S. M. v. District Registrar, Co-operative Societies, Ahmedabad)12, while dealing with the provisions of section 74 of the Bombay Co-operative Societies Act, 1925, that a committee which is not constituted in accordance with the Act, the Rules and the Bye-laws or in accordance with the statutory mandate would not be the committee which can claim power of management and to the extent that the bye-laws are in terms referred and cited in any of the provisions of the Act, they are re-writtcn in the section and the sec- tion could not be read without the language of the bye-laws being re-written therein. It was pointed out by the learned Judge that section 74 enacts a Salutary control by laying down what shall be the powers and what shall be the duties of the committee and how it shall be constituted. It was held, that if a committee is not constituted as required by section 74 or it seeks to. exercise power except in accordance with the mandatory bye-law the com- mittee would be ultra vires or the exercise of power in question would be ultra vires.section 74 of the Bombay Co-oparative Societies Act. The learned, Judge further held that in the context of a Co-operative Society or a limited company, when a regulation of bye-law is mandatory in the nature and if its conditions precedent were not fulfilled, the power sought to be exercised would be clearly vitiated as ultra vires the exercise of power and in such a case, both the remedies by way of mandamus or declaratory relief would be available especially when what is sought to be deprived of or enforced is a right of a member to become an office bearer, which could always be enforced through ordinary process of law. The learned Judge negatived the conten-tion that the bye-laws of a Co-operative Society including its election rules, which were made under the relevant bye-law, may be binding on the member but would have no binding effect so as to have a force of law. That was a case where the question was whether the rejecrion of a nomination paper could be remedied in a writ petition. 40. That was a case where the question was whether the rejecrion of a nomination paper could be remedied in a writ petition. 40. There are three other decisions out of which one is prior and one is later than the above mentioned decision, which take a contrary view and proceed on the footing that the bye-laws have a contractual force and cannot be enforced under Articles 226 and 227 of the Constitution. The earlier decision is in (Natubhai Gordhandas v. State)13. But that deals with certain rules made under the Gujarat Housing Board Act and it was observed that the bye-laws or regulations do not impose any obligations on the outsiders and generally they do not possess any statutory authority though they may possess a very potent binding force and four factors have to be taken into consideration for deciding whether a particular rule or regulation has a binding force of a statute. The four factors, which had to be taken into account in deciding whether a particular rule or a regulation has a binding force of a staiute were stated to be: (1) Nature of rule-making power; (2) the authority on which the power is conferred; (3) the purpose for which the power is given; and (4) the subject matter of rules and regulations. The learned Judge formulated some guidelines to decide whether a particular regulation or Bye-law was enforceable as a statute. The guidelines were : (1) If the regulation or bye-law in question imposes a legal obligation, breach of which is punishable at law or which can be enforced through an ordinary process of law, then it possesses a statutory character; (2) a corollary to the above proposition is that if a regulation or a bye-law creates a vested right in any individual or an ascertained body of persons, then also that regulation or bye-law may possess a statutory character; (3) But if the said regulation or bye-law has merely a contractual character, its statutory force is lost; and (4) if the regulation or bye-law does nothing more than regulating the internal affairs of the statutory body, it merely possesses the character of an article of association of company and does not possess any statu- tory authority. 41. 41. The next decision is in Rajabhai v. Member, U. T. S. K. V. S. Ltd.1*, in which the learned Judge held that bye-laws of co-operative socie- ties governed by the Gujarat Co-operative Societies Act have their origin in contract and, therefore, they do not have a force of a statute and like Articles of Association of a Company, they constitute a contract between the parties and, therefore, the bye-laws could not be enforced by a wr t of the High Court under Article 226 or Article 227 of the Constitution. It may be pointed out that that was not a case of an election but what was challenged was a resolu- tion holding that office of a member had become vacant on account of absence and by the resolution, new members were co-opted. It was this resolution which was challenged. The case, in our view, is clearly distinguishable. 42. The last case is in Balubhai Maganlal Ghaswala and others v. The State of Gujarat and others15, which follows the decision in Rajabhai y. Member, U, T. S. K. V. S. Ltd. The order challenged in that case was an order made by the Registrar of Co-operative Societies appointing a new Board of Directors in place of the petitioners on the ground that the impugn- ed order was contrary to the provisions of bye-law No. 21 (2) and it robbed the petitioners of their valuable rights to man and manage the institution, namely, respondent No. 3-Co-operative Society. The main question which seems to have fallen for decision before the learned Judge was whether having regard to the statement of the law in the Supreme Court deci- sion that the source of the bye-law is a contract, such bye-law was a bye-law as envisaged in Article 226(1) of the Constitution as amended by the Constitution (Forty-second Amendment) Act. Both these cases, in our view, are clearly distinguishable because we are dealing with a statutory pro- vision with regard to the constitution of a Managing Committee and since we have held that there is a statutory obligation to comply with the byelaws, the Returning Officer being called upon to perform a statutory duty with regard to election, any order passed by him rejecting or accepting a nomination paper could, in a proper case, be subjected to scrutiny under Article £26 of the Constitution. 43. 43. We are, therefore, of the view that a writ petition under Arti- cle 226 of the Constitution challenging an order of Returning Officer reject-ting or accepting a nomination paper cannot be rejected on the ground that such a petition does not lie. However, whether in a given case this Court will entertain a petition and will interfere or not will depend on the facts and circumstances of each Case. 44. That brings us to the specific grievance made in the instant case. On hearing Dr. Naik, we are not satisfied that there was any error on the part of the Returning Offices in rejecting the nomination paper. We have reproduced above the provisions of section 48(a), rule 48 and bye-law 12. Bye-law 12 is specific that unless a declaration in the prescribed form under section 48 is filled in, a person will not be entitled to exercise any right what-soever as a member. Standing for an erection to the Managing Committee is one of the rights of a member. All that has been argued before us is that the revenue records show that a declaration has been made by the petitioner. It is not stated even in she petition as to when and where such a declaration was made. Indeed we must proceed on the footing that a statement made in the affidavit on behalf of the society that the petitioner has made no such declaration and that his name does not appear in the list maintained by the society of persons who have made the declaration is correct. In view of the bye-law that unless a declaration is made as required by section 48, rule 48 and bye-law 12, a person will not be entitled to exercise any right whatsoever as a member, it is difficult to see how the Returning Officer could have .accepted the nomination paper validly even though no such declaration has been made. Therefore, on merits we find that there is no substance in the contention that the nomination paper has been wrongly rejected. 45. In the view which we have taken, the petition must fail and is dismissed with costs. Petition dismissed. -----