JUDGMENT 1. BY this writ application, the petitioner challenged the vires of Bye-law 19 (1) of respondent No. 4. The Consumers Co-operative Stores Ltd. 2. IN the writ petition it is alleged that the petitioner is a member of the consumers Co-Operative Societies Stores Ltd. , Port Blair, Respondent No. 4 herein, since 1989 by purchase of one share of Rs. 100/ -. The said Co-operative Society was registered originally under the Co-operative Societies act, 1912, having its Registration No. 108 dated 15. 12. 62 , issued by the registrar of Co-operative Societies, Andaman and Nicobar Islands. After the promulgation of The Andaman and Nicobar Islands Co-operative Societies regulation 1973, which was enacted by the President of India in terms of he provision of Article 214 of the Constitution of India, the said Society being deemed to have been registered as Co-operative Society under the said Regulation. Under section 86 of the Andaman and Nicobar Islands Co-operative societies Regulation, 1973 (hereinafter referred to as 'regulation' for the sake of brevity), the chief commissioner of Andaman and Nicobar Islands is empowered to make rules subject to certain conditions. Be it noted here hat the said post has since been redesignated as Lt. Governor. Under the rule making power Rules can be framed to carry out all or any of the purposes of the Regulation and one of such purposes, as contained in clause (iv) of sub-section 2 of Section 86 of Regulation, is as follows : "86. **** **** (2) **** (iv) The matters in respect of which a co-operative society may or shall make bye-laws and the procedure to be followed in making, altering and abrogating bye-laws and the conditions to be satisfied prior to such malting alteration or abrogation. " 3. IN pursuance to Section 86 of the Regulation the Chief Commissioner of Andaman and Nicobar islands framed Rules, namely "the Andaman and nicobar Islands, Co-operative Societies Rules 1974 (which term will be referred to hereinafter as the "rules'" for the sake of brevity ). 4. RULE 8 of the said Rules provides the items for which a co-operative society can make bye-laws. Rule 8 of the said Rules is set out hereunder : "8. 4. RULE 8 of the said Rules provides the items for which a co-operative society can make bye-laws. Rule 8 of the said Rules is set out hereunder : "8. Subject matter of Eye-Laws.- (1) A Co-operative society shall make bye-laws in respect of the following matters: - (a) name and address of the co-operative society; (b) area and operation; (c) the objects of the co-operative society ; (d) the manner in which the funds may be raised and the maximum share capital which any one member may hold and the purpose to which the funds may be made applicable; (e) the qualifications for membership and terms for admission of members; (f) the nature and the extent of the liability of the members; (g) withdrawals and expulsion of members, and the payments, if any, to be made to such members ; (h) transfer of shares or interest of the members; (i) general meetings and procedures and powers of such meetings; (j ). procedures of election to the committee; (k) appointment, suspension and removal of the officers of the cooperative society and members of the committee; (1) constitution of the committee and procedure for holding its meetings; (m) powers and duties of the committee and officers of the cooperative society; (n) the privileges, rights, duties and liabilities of members; (o) the consequence of defaults in payments of any sum due by a member; (p) authorisation of an officers of the co-operative society to sign documents and to institute and defend suits and other legal proceedings on behalf of the society : (q) the constitution and maintenance of various funds as required to be maintained under the provisions of Regulation, Rules and bye-laws; and (r) disposal of profits; provided that if in the opinion of the Registrar the bye-laws of any cooperative society do not contain provisions with regard to the matters specified in clauses (i) and (ii) or contain insufficient provision with regard to these matters, the provisions precsbribed in appendix 'b' shall apply to such society as if the said Appendix had been part of the bye-laws registered under Section 8 ; provided further that If there is any inconsistency in the bye-laws framed by the society with regard to the aforesaid matters and the provisions contained in Appendix 'b' the bye-laws of the society shall prevail in so far they are inconsistent with the provisions contained in appendix B'. (2) The bye-laws of a co-operative society may further provide for such matters as are incidental to the organisation of the society and the management of its business." In terms of the said Rule, Respondent No. 4 made its bye-laws, which were properly certified by the Registrar of Co-operative Societies on 30. 12. 1978. The said bye-law is known as "bye-laws of the Consumers Co. Op. Stores Ltd." (which term will be referred to as the "bye-Laws"). 5. THE objects of the society as enshrined in bye-law 2 of the said Bye-Laws is set out hereunder : "2. OBJECTS the objects of the society shall be (i) to arrange for the purchase and sale to its members reasonable rate of all articles of consumption, other domestic requirements and necessities of life; (ii) to carry on in common for the benefit to its members the trade of general dealers to establish and conduct on co-operative principles such other lines of work or department of business or may, from time to time, be resolved by the General Body. (iii) to open any branches in its area of operation; (iv) to own or hire godowns far running its business; (v) to take distributorship all or any of the commodities dealt by the society; (vi) to act as agent for its affiliated societies by way of procurement and supply of their requirements; (vii) to disseminate the knowledge of cooperative principles and their realisation as far as practicable : (viii) to encourage thrift, self-help and cooperation among members; and (ix) to undertake all other activities calculated to further the objects of the society." 6. BYE-LAW 19 of that Bye-Laws provides for management of society. Bye-law 19 (i) is set out hereunder : "19. MANAGEMENT subject to such resolution the General Body may from time to time pass, the executive management of the society shall vest in a managing Committee. The Managing Committee shall consist of not more than 20 members. BYE-LAW 19 of that Bye-Laws provides for management of society. Bye-law 19 (i) is set out hereunder : "19. MANAGEMENT subject to such resolution the General Body may from time to time pass, the executive management of the society shall vest in a managing Committee. The Managing Committee shall consist of not more than 20 members. Subject to the above limit, the managing Committee shall consist of the following:- (i) Deputy Commissioner, Andaman District, who shall be the ex-officio Chairman; (ii) Eight members representing the individual members to be elected by the general body; (iii) Four representatives of affiliated societies to be elected from amongst the members) subject to the condition that the representation shall not exceed one for every 20 societies or part thereof; (iv) One member representing employees of the society who are also members of the society to be elected from amongst themselves (v) The Managing Director; (vi) Nominee not exceeding 3 of the Chief Commissioner or any person authorised by him under Section 26 of the Regulation 1973 when Government has taken share participation in the society; and (vii) One representative each of the credit agency." The writ petitioner has taken objection regarding sub-clause (i) of bye-law 19 on the ground that it contravenes section 26 of the Regulation. 7. IN this context, without referring to the other facts, I will refer to those facts which are relevant for this purpose. 8. BYE-LAW 4 of the Bye-Laws provides for provision for capital. The said bye-law is set out hereunder : "4. CAPITAL the authorised share capital of the society shall be Rs. 10 lakhs made up of 2000 A' class shares of Rs. 100/- each, 500 b' class shares of Rs. 1,000/- each and 1,500 'c class of Rs. 200/- each. A' class shares shall be admissible only to individuals. 'b' class shares shall be admissible to government and credit agency. 'c class shares shall be admissible only to affiliated societies. Provided, however, that the existing shareholders (A class shares)having less than Rs. 100/- will continue to members till their membership ceases. No further individual shares of less than Rs. 100/-will be allotted. " Bye-LAW 5 provides for membership of the society, which is set hereunder: "5. 'c class shares shall be admissible only to affiliated societies. Provided, however, that the existing shareholders (A class shares)having less than Rs. 100/- will continue to members till their membership ceases. No further individual shares of less than Rs. 100/-will be allotted. " Bye-LAW 5 provides for membership of the society, which is set hereunder: "5. MEMBERSHIP (1) (a) Any person over eighteen years of age who is competent to contract residing within the limits referred to in by-law No. 1 shall be eligible for admission as an 'a' class member, but no person can claim admission as a matter of right. The Government or a credit agency shall be eligible for admission as 'b' class members. Any cooperative society registered or deemed to be registered under the regulation shall be eligible for admission as 'c class members. Notwithstanding the provision of bye-laws 5. 1 (a) above a government Servant who has become a member of the society shall continue to be a member of the society even when he is transferred to work in a tribal area which is excluded from the area of operation of the society. (b) No member who has been expelled by the society or any other society shall be eligible for re-admission as a member of the society for a period of two years from the date of such expulsion provided that the Registrar may, in special circumstances, sanction the re-admission of any such member within the said period as a member of the society. (c) No person shall be eligible for admission as a member of the society if he is an applicant to be adjudicated a bankrupt or an insolvent or has been sentenced for any offence other than an offence of a political character or an offence not involving moral deliquency. Such sentence not having been reversed or the offence pardoned provided that this disqualification shall not apply where more than five years have elapsed from the date of expiration of such sentence. 2. Such sentence not having been reversed or the offence pardoned provided that this disqualification shall not apply where more than five years have elapsed from the date of expiration of such sentence. 2. Any member of the society shall cease to be a member of the society if he (a) applies to be adjudicated or is adjudicated a bankrupt or an insolvent; or (b) is sentenced for any such offence as is described in clause 1 (c) of this bye-law; provided where a person ceases to be a member of the society under clause (b), he shall be restored to membership of the society if and when the sentence is annulled on appeal or revised or after expiry of a period of 5 years from the date of expiry of the sentence. " 9. SECTION 18 of the Regulation contains Votes of members and Section 19 of the Regulation provides the 'manner of exercising vote. The said two sections are set out hereunder : "18. Votes of members : - Every member of a co-operative society shall have only one vote in the affairs of the society : provided that - (a) in the case of an equality of votes, the Chairman shall have a second casting vote ; (b) a nominal or associate member shall not have the right of vote; and (c) where the Government is a member of the co-operative society, such person nominated by the Chief Commissioner on the committee shall have one vote. "19. Manner of exercising vote : - (1) Every member of a co-operative society shall exercise his vote in person and no member shall be permitted to vote by proxy. (2) Notwithstanding anything contained in sub-section (1) a cooperative society which is a member of another co-operative society, may, subject to the rules, appoint one of its members to vote on its behalf in the affairs of that society. " 10. SECTION 26 of the said Regulation provides for 'election and nomination of members of committees'. Section 26 is set out hereunder : "20. Election and nomination of members of committee : - (1) The members of the committee of a co-operative society shall be elected in the prescribed manner and no person shall be so elected unless he is a shareholder of the society. Section 26 is set out hereunder : "20. Election and nomination of members of committee : - (1) The members of the committee of a co-operative society shall be elected in the prescribed manner and no person shall be so elected unless he is a shareholder of the society. (2) Notwithstanding anything contained in sub-section (1) - (a) where the Government has subscribed to the share capital of a co-operative society, the Chief Commissioner or any person authorised by the Chief Commissioner in this behalf shall have the right to nominate in the committee such number of persons not exceeding three or one-third of the total numbers of members thereof, whichever is less, as the Chief Commissioner or such authorised person may determine ; (b) where the Industrial Finance Corporation established under section 3 of the Industrial Finance Corporation Act, 1948 (15 of 1948)or any credit agency has provided finance to a co-operative society, the said Industrial Finance Corporation, or such credit agency, as the case may be, shall have the right to nominate one person on the committee. (3) A person nominated under sub-section (2) shall hold office during the pleasure of the Chief Commissioner or the said Industrial finance Corporation or such credit agency, as the case may be." Sub-CLAUSE (i) of Section 2 of the said Regulation defines the meanding of 'member', sub-clause: (j) of Sec. 2 defines the meaning of 'nominal member or associate member' and sub-clauses (k) of Section 2 defines the meaning of 'officer'. The said sub-clauses (i) , (j) and; (k) of section 2 of the said Regulation are set out hereunder: (i) "member" means a person joining in the application for the registration of a co-operative society and a person admitted to membership after such registration accordance with this Regulation, the rules and the bye-laws, and includes a nominal or associate member and the government when it subscribes to the share capital of a society; (j) "nominal or associate member" means a member who possesses only such privileges and rights of a member and who is subject only to such liabilities of a member as may be specified in the bye-laws; (k) "office" includes a President, Vice-president, Chairman, vice-Chairman, Managing Director, Secretary, Manager, member of a committee , Treasurer, Liquidator, administrator and any other person empowered under the rules or bye-laws to give directions in regard to the business of a co-operative society. 11. RULE 85 of the Rules provides for bar on voting by members nominated by the Chief Commissioner on certain matters. Provisions of rule 85 of the said Rules are set out hereunder: "85. Bar on voting by members nominated by the Chief Commissioner on certain matters : The members nominated by this Chief Commissioner to a committee of a co-operative society under clause (a) of sub-section (2) of Section 26 shall not vote in the election of the office bearers of the cooperative society. " 12. OUT of the 20 members of the Managing Committee, under By-law 19 (i) of the said Bye-laws, the Deputy Commissioner, Andaman District, shall be the ex-officio Chairman of the Managing Committee. The Managing director of the said society. Respondent No. 4, is a whole time paid employee of the society and has a seat in the Board of Managing committee. Bye-LAW 20 provides that the members of the Managing Committee, excepting the ex-officio Chairman, the Managing Director and the nominated members, shall be elected for a period of three years from among the members. By-law 21 provides certain disqualification of a person for election as a member of the Managing Committee of the society. Bye-law 22 provides the provision for meeting of the Managing Committee of the society and also provides that the Chairman of the Managing committee shall have a casting vote. This bye-law has been framed in terms of Section 18 (a) of the Regulation. Bye-law 22 provides the provision for meeting of the Managing Committee of the society and also provides that the Chairman of the Managing committee shall have a casting vote. This bye-law has been framed in terms of Section 18 (a) of the Regulation. According to bye-law 24 (l) (a), the ex-officio Chairman shall have the general control over all the affairs of the society. Bye-law 24 (1) (8) onwards provide for powers and responsibilities of the Managing Director of the society. 13. BYE-LAW 20 (2) of the said Bye-Laws provides for election of Vice Chairman and Secretary by the newly elected Managing Committee and under Section 23 of the said Regulation read with bye-law 31. general body of the society is the final authority in respect of the co-operative society. 14. IN the writ petition it is alleged that in 1978 the total number of members of the society was 500 and in the year 1992 the total number of members was 11450. The said members of the society elect the members of the Managing Committee of the society. Last election of the Managing committee was held on 27. 12. 92. In the Affidavit-in-reply, it has also been alleged by the writ petitioner that the said Managing Committee has since been suspended by the Registrar of Co-operative Societies, Andaman and nicobar Islands by his order No. 340 dated 20th June. 1993. Mr. A. S. Roy, Ld. Advocate for the petitioner, contended that in view of the provision in Section 26 of the Regulation all the members of the committees, including the Managing Committee, are either to be elected or to be nominated by the Chief Commissioner and by the financial institutions. He further contended that the Chief Commissioner is entitled to nominate persons to the Managing Committee not exceeding 3 or l/3rd of the total numbers thereof, whichever is less and that the Industrial finance Corporation established under Section 3 of the Industrial Finance corporation Act, 1948 or any credit agency, if provided finance to the cooperative society, the said Industrial Finance Corporation or such credit agency, as the case may be, shall haw the right to nominate one person in the Managing Committee. Mr. Mr. Roy further contended that the Deputy commissioner, Andaman District, who is the ex-officio Chairman of the managing Committee, as provided in bye-law 19 (i) of the said Bye-Laws is neither an elected member in the Board of the Managing Committee nor a person nominated either by the Chief Commissioner or any financial constitution in the said committee. 15. IN this context it will not be out of place to mention that the Chief commissioner in the erstwhile Managing Committee nominated three persons, namely, (1) Special Officer Andaman and Nicobar Administration, (2)the Assistant Registrar of Co-operative Societies, Port Blair and a social worker Smt. Saroja Devi Murudhavanan, who is holding the said post as nominated member of the Managing Cammittee for more than 10 years. 16. ACCORDING to Mr. Roy, as there are two streams for being members of the Managing Committee : either by way of election or by way of nomination, the provision under bye-law 19 (1) of the said Bye-Laws providing Deputy Commissioner, Andaman District, to be the ex-officio chairman of the Managing Committee, ultra vires the provisions of Section 26 of the said Regulation and he submitted that the said provisions should be struck down. In support of his contention, Mr. Roy referred to two decisions of andhra Pradesh High Court and one decision of Karnataka High Court, to wit, (1) K. Raghuarami Reddy and Ors. vs. Deputy Registrar of Co-operative societies, Cuddaph and Ors. , reported in the Cooperative Law Journal, vol. 14, July, 1968, p. 104, (2) G. V. Rao Registrar of Co-operative Societies and ors. , reported in the Co-operative journal. Vol. XI, January, 1976, Part 4, p. 247 and (3) Puttappa H. vs. state of Karnataka and Ors. , reported in the co-operative Law Journal XIV, April, 1978, p. 268. 17. I refrain from referring to the said judgements as the same do not any bearing in the present case. The decisions of the Andhra Pradesh high Court are in connection with Sections 31 (1) and 31 (4) of the Andhra pradesh Co-operative Societies Act, 1964. Karnataka decision deals with the principles to be observed by the co operative societies. 18. LEARNED Govt. Pleader, appearing for the respondents, on the other hand, challenged the writ petition on three scores. According to him, the writ petition suffers from lack of bonafides. Karnataka decision deals with the principles to be observed by the co operative societies. 18. LEARNED Govt. Pleader, appearing for the respondents, on the other hand, challenged the writ petition on three scores. According to him, the writ petition suffers from lack of bonafides. In this context he submitted that the Deputy Commissioner in his capacity as ex-officio Chairman of the society lodged a complaint on 13th February, 1993 with the Station House Officer, P. S. Aberdeen against the Managing director, M. S. Siddique and other employees who, according to the respondents, involved in various financial mismanagement, misappropriation and irregularities resulting in fast deterioration in the liquidity of the stores. Giving all possible details therein, the ex-officio Chairman requested the police to conduct a through investigation into the whole affairs of the society and to take necessary actions against them. 19. MR. Shiv Swaroop submitted that this gives rise to this writ petition by a member of the society, who is playing at the hands of the said managing Director and other employees in that the writ petition suffers from lack of bonafide. 20. SECOND submission of Mr. Shiv Swaroop was that there are alternative remedies for the reliefs prayed for in this writ petition by taking recourse to Sections 55. 68 and 69 of the Regulations and as the petitioner has not resorted to these provisions, the writ petitioner is debarred from invoking the writ jurisdiction of this court. The third and last contention of Mr. Shiv Swaroop was that the Bye-Laws, including bye-law 19 (i) were approved and passed by the general body of the society and the matter could have been placed before the general body of the co-operative society for appropriate changes or amendment of the bye-laws and in not doing so, as the petitioner has approached the High Court in its writ jurisdiction, he should not be permitted to do so. 21. SECTION 26 of the Regulation, read with bye-law 4 of the Bye-Laws clearly show that there are three categories of shareholders in respect of the society, which are as follows - (a) 'a' class shares of Rs. 100/- each which admissible to the individuals; (b) 'b' class shares of Rs. 1,000/- each which are admissible to government and agency and (c) 'c class shares of Rs. 200/- each which shall be admissible to the affiliated societies. 100/- each which admissible to the individuals; (b) 'b' class shares of Rs. 1,000/- each which are admissible to government and agency and (c) 'c class shares of Rs. 200/- each which shall be admissible to the affiliated societies. By purchase of the said shares a person or authorities named therein can be general members of the society. 22. SECTION 16 of the Regulations provides for nominal or associate members, who are the nominated members according to Section 26 (2) (b) of the Regulation. There is another type of member who are also nominated members of the Managing Committee of the society, up to a maximum numher of three to be nominated, by the Chief Commissioner, qua, Lt. Governor , Andaman and Nicobar islands. By-LAW 19 of the Bye-Laws provides amongst others, that "subject to such resolution the General Body may from time to time pass, the executive management of the society shall vest in a Managing Committee. The Managing Committee shall consist of not more than 20 members. Subject to the above limit, the Managing Committee shall consists of the following," (s/c ). 23. IT has been already pointed out earlier that the composition of the managing Committee is. keeping the limit of 20 members, as provided in bye-law 19, (i) the Deputy Commissioner, Andaman District shall be the ex-officio Chairman, (ii) 8 members representing the individual members shall be elected by the general body of the society; (iii) four representatives of affiliated societies to be elected from amongst the members, subject to condition that the representation shall not exceed one for every 20 societies; (iv) one member representing employees of the society to be elected from amongst themselves; (v) the Managing Director; (vi) nominee not exceeding 3 of the Chief Commissioner or any person authorised by him under Section 26 of the Regulation 1973 and (vii) one representative each of the credit agency. 24. SO from a plain reading of bye-law 19, it is seen that those who are in the Board of the Managing Committee are members of the Managing committee. The mode of becoming members of the committees, including the managing Committee, under Sec. 26 of the Regulation is either by election or by nomination and the nominated members shall hold office during the pleasure of the Chief Commissioner or the Industrial Finance Corporation or such credit agency, as the case may be. 25. The mode of becoming members of the committees, including the managing Committee, under Sec. 26 of the Regulation is either by election or by nomination and the nominated members shall hold office during the pleasure of the Chief Commissioner or the Industrial Finance Corporation or such credit agency, as the case may be. 25. THE definition of "members" and "nominal or associate members" are in Section 2 (i) and 2 (j) of the Regulations. Section 2{k) of the said regulation defines the 'office'. According to that provision, president, Vice-President, Chairman, Vice-Chairman, the Managing Director, Secretary, member of a committee, treasurer liquidator, administrator and any other person empowered under the rules or bye-laws to give direction in regard to the business of a co-operative society, are the officers of the co-operative society. 26. BY-LAW 20 (2) provides for election of Vice-Chairman and Secretary of the society by the newly elected Managing Committee. Rule 27 of the Rules provides that the members of the committee of a co-operative society shall be elected in accordance with the Rules given in appendix 'f'. 27. SO on conjoint reading of Section 26 of the Regulation and Rule 27 of the Rules, it is clear that the members of the Managing Committee shall be either by election or by nomination. There is no third course to be a member of the Managing Committee. 28. IT is an admitted fact that the Deputy Commissioner, Andaman district, is not an elected member to the Managing Committee. The respondents in their counter affidavit disclosed in paragraph 15 that the deputy Commissioner is not a nominated person in the Managing committee. Under bye-law 19 (i) the Deputy Commissioner, Andaman Dist, has been made the ex-officio Chairman of the Managing Committee of the society though he is neither elected by the general body nor a nominated member either by the Chief Commissioner or any financial institution. So the provision of bye-law 19 (i (of the Bye-Laws of the Consumers Cooperative Societies Ltd. militates against the provisions under Section 26 of the Regulation and Rule 27 of the Rules. So the provision of bye-law 19 (i (of the Bye-Laws of the Consumers Cooperative Societies Ltd. militates against the provisions under Section 26 of the Regulation and Rule 27 of the Rules. The general body or for that the society is not empowered under section 26 of the Regulation Rule 27 of the Rules to make Deputy commissioner, Andaman District the ex-officio Chairman of the Society by taking a course not provided) under Section 26 of the Regulation and Rule 27 of the Rules and accordingly, bye-law 19 (i) contravenes Sec. 26 of the regulation and Rule 27 of the Rules. Bye-law 19 (i) of the Bye-laws as such ultra vires the said provisions contained in Section 26 of the Regulation and Rule 27 of the Rules and the same must be struck down. 29. REGARDING the contention of the Ltd. Government pleader about the lack of bonafide, it can be pointed out that any member of the society, whose right has been affected, has a right to approach the court in its writ jurisdiction. Regarding the contention of alternative remedy, either by placing the matter before the general body for change or amendment of the bye-laws or taking recourse to the alternative remedy as enshrined in section 55, 68 and 69. the petitioner could not avail of the remedy, as prayed for in this writ petition inasmuch as, except the high Court no other authority has the power to declare any Act or Rule or bye-law as ultra vires. So it is pureile to contend that by taking such recourse the petitioner could have availed of the remedy as prayed for in the writ petition. 30. ACCORDINGLY, the Writ petition its allowed. Bye-law 19 (i) of the Bye-Laws of The Consumers Co-operative Stores Ltd. , port Blair is hereby struck down. Let a Writ of mandamus and Certiorari do issue accordingly. 31. THERE will be no order as to costs. Petitions allowed.