JUDGMENT :- Heard. Rule. Rule, heard forthwith with the consent of the parties. 2. An interesting question as to the right of voters from borrower category to the non-borrower constituency candidate and voters from non-borrower category the borrower constituency candidate is raised in this petition. 3. Respondent No.2 is a Seva Sahakari Society, working at Daryapur, Distt. Amravati. The petitioner is one of the voters of the said society having his name as voter at Sr. No. 77 in voter list in borrowers category. The election programme for the year 2008 was declared and published by respondent No.3 Election Officer, whereby 13 members were to be elected for the Managing Committee of respondent No.2 Society. The said election programme was published on 17-12-2008. The respondent No.3 - Election Officer had issued 16 directions in the said programme. The conditions and directives Nos. 4 and 5 regarding the availability of voting' right mentioned therein, which are relevant for the purpose of this petition read thus :- .. Clause 4. The borrower voters in the list of borrower members can submit their nomination from the borrower constituency and it is necessary that his seconder and proposer shall be from the list of borrdwer voters. Borrower voter member will vote for 7 fleneral borrower members and 5 members from reserved constituency. Clause 5. The members in the non-borrower voters list can submit their nomination for this constituency and it is necessary that his seconder and proposer shall be from the list of non-borrower voters. Voters in nonborrower list will vote for non-borrower member and 5 members from reserved constituency. (Emphasis supplied) Accordingly, it was stipulated that borrower voter could vote for 7 general borrower members and 5 members from reserved constituency, thereby he was not permitted to vote for non-borrower candidate. Clause 5 stipulated that voters in non-borrower list would vote only for non-borrower members and 5 members from reserved constituency. Therefore, some of the non-borrower members made complaint to the Assistant Registrar, Co-operative Societies, Daryapur, and claimed that they are not allowed to vote for borrower candidate and therefore, they are deprived of the voting rights. Later on, a clarification was issued by the Assistant Registrar on 20-12-2008, saying that the said Clause Nos. Therefore, some of the non-borrower members made complaint to the Assistant Registrar, Co-operative Societies, Daryapur, and claimed that they are not allowed to vote for borrower candidate and therefore, they are deprived of the voting rights. Later on, a clarification was issued by the Assistant Registrar on 20-12-2008, saying that the said Clause Nos. 4 and 5 are withdrawn and they could vote irrespective of these restrictions, meaning thereby the voters from borrower category could vote to the candidate from non-borrower category and non-borrower category voters could vote to the candidates from borrower category. Therefore, each of the voter could cast 13 votes i.e. for members; which was not available as per the earlier Clause Nos. 4 and 5, referred above. Later on, respondent No.6 raised grievance and thereafter the said change was withdrawn, and it was informed that for voting purpose in the election so declared, the earlier clause Nos. 4 and 5, as referred above, were to prevail. This communication was issued by the Election Officer on 23-12-2008. Therefore, as per this new communication, the Election Officer - respondent No.3 directing that the earlier Clauses 4 and 5 would prevail for the purpose of election to the members of the Managing Committee. Petitioner took exception to this new communication, whereby, according to him, his right i.e. voting right is restricted i.e. Borrower voter could vote only to the borrower constituency candidate and non-borrower voter could vote only for non-borrower constituency candidate. Thus, according to the petitioner, he is prevented from voting to all 13 members of the Managing Committee. According to him, as such restriction is not provided in the bye-laws of the society, the Election Officer could not impose such a restriction on them and therefore, the same is illegal and violative of constitutional mandate of Article 14 of the Constitution of India. He, therefore, claimed that writ of certiorari or any other writ, order or direction may be issued to the Election Officer to revoke those clauses and allow the petitioner to vote for all the 13 candidates including the candidates from borrower category and nonborrower category, apart from the reserved category candidates. Therefore, he claimed following reliefs. (i) Declare that condition clause Nos. Therefore, he claimed following reliefs. (i) Declare that condition clause Nos. 4 and 5 given in the election directives notified by respondent No. 3 Election Officer vide Annexure P-1 dated 17-12-2008 as illegal; (ii) Order respondents and respondent No. 3 Election Officer specifically to delete condition Clauses 4 and 5 in election directives Annexure P-1 and it be ordered that voters from borrowers or non-borrower constituencies are entitled to exercise "all 13 votes to be given to 13 members to be elected upon managing committee of the respondent No.2 Co-operative Society. (iii) By way of interim order, condition clause Nos. 4 and 5 mentioned in the election directives Annexure P-1 dated 17-12-2008 issued by respondent No. 3 Election Officer be stayed and respondents be ordered to clarify that voters are entitled to exercise 13 votes to the members to be elected upon managing committee of respondent No. 3 society in the elections for the year 2008. (iv) Grant any other relief that deem suitable in the circumstances of the case. 4. Respondent Nos. 1 and 3 have contended that the stipulation laid by earlier Clauses 4 and 5 are in accordance with the provisions of Co-operative law. According to the Registrar, Co-operative Societies, as per Maharashtra Cooperative Societies Act, the constituencies of borrower members and nonborrower members create two separate constituencies and the borrower member and the non-borrower member cannot vote to the candidates for other constituency candidate contesting for Managing Committee. According to them, therefore, the election programme which was declared earlier; was proper and in accordance with law. As regards interim relief, it was contended that the election programme has begun and therefore, the respondent No. 3 had restored the election programme by issuing correction i.e. withholding of the effect of changed Clauses 4 and 5, which was in accordance with the co-operative law. 5. Respondent No.5 contended that the action of change of Clause Nos. 4 and 5 of the election programme at the request of the petitioner and some others was not proper. Once the election programme was declared, the only remedy which would available; was by way of election dispute/petition. According to him, Clauses 4 and 5 were in accordance with the co-operative law. According to him, there was no illegality in incorporating the Clause Nos. Once the election programme was declared, the only remedy which would available; was by way of election dispute/petition. According to him, Clauses 4 and 5 were in accordance with the co-operative law. According to him, there was no illegality in incorporating the Clause Nos. 4 and 5 in the election programme when it was declared and therefore, its recall and inserting new clauses during the course of the Election Process was not permissible and as such, the action of withdrawal of changes in Clause Nos. 4 and 5 during the course of Election Programme was correct. Therefore, the petition is devoid of any merits and the same is liable to be dismissed. 6. I have heard the learned counsel at length. 7. Before referring to their submissions, it is necessary to mention that the election as per the election programme was to be held on 25-1-2009. The petition took considerable time for hearing and as there was no interim order of stay to the election, the said election was held and the election results are declared. Therefore, the question of any interim relief now does not survive. Therefore, the question of any interim relief now does not survive. Therefore, I need not consider the submissions of the parties as to whether the election during its process could be stayed or not? Suffice to say that it would be only of academic interest now. Even the learned counsel for the petitioner has later submitted that the petitioner has become infructuous as the election has already been held and the petitioner can take appropriate remedies to claim the appropriate reliefs, other than this petition. 8. No doubt, the cause in the petition now does not survive, but the fact remains that important issue has been raised in this petition as regards voting rights of the non-borrower members to the candidate for the post of representative on the Managing Committee from borrower constituency and vice versa; therefore, I propose to decide the said issue in this petition in particular as regards the societies as respondent No.2; having specific bye-laws. 9. Learned counsel for respondent No. 5 had raised a contention that petition is not maintainable as the relief claimed is against the co-operative society which is not a public body or a State. 9. Learned counsel for respondent No. 5 had raised a contention that petition is not maintainable as the relief claimed is against the co-operative society which is not a public body or a State. He has referred to the decision of the Apex Court in (2006) 11 SCC 634 , S. S. Rana vs. Registrar, Co-op. Societies and another, wherein it has been held thus - Kangra Central Co-operative Bank Ltd. (respondent 2, "the society") has not been constituted under a statute. Its functions like any other cooperative society which are mainly regulated in terms of the provisions of the Himachal Pradesh Co-operative Societies Act, 1968 ("the Act"} except as provided for in the bye-laws of the Society. The State has no say in the functions of the society. Membership, acquisition of shares and all other matters are governed by the bye-laws framed under the Act. The terms and conditions of an officer of the co-operative society, indisputably, are governed by the Kangra Central Co-operative Bank Employees (Terms of Employment and Working Conditions) Rules, 1980 ("the Rules "}. Rule 56 does not contain any provision in terms whereof any legal right as such is conferred upon an officer of the society. It has not been shown that in terminating the services of the appellant, the respondent has violated any mandatory provisions of the Act or the rules framed thereunder. In fact, in the writ petition no such case was made out. It has not been shown that the State exercises any direct or indicate control over the affairs of the society for deep and pervasive control. The State furthermore is not the majority shareholder. The State has the power only to nominate one Director. It cannot, thus, be said that the State exercises any functional control over the affairs of the Society in the sense that the majority Directors are nominated by the State. For arriving at the conclusion that the State has a deep and pervasive control over the society, several other relevant questions are required to be considered, namely: (1) How was the society created? (2) Whether it enjoys any monopoly character? (3) Do the functions of the society partake statutory functions or public functions? And, (4) Can it be characterised as public authority? Respondent 2, the Society does not answer any of the aforementioned tests. (2) Whether it enjoys any monopoly character? (3) Do the functions of the society partake statutory functions or public functions? And, (4) Can it be characterised as public authority? Respondent 2, the Society does not answer any of the aforementioned tests. As respondent No. 2 does not satisfy any of the tests laid down in Pradeep Kumar Biswas, (2002) 5 SCC 111 , the High Court cannot be said to have committed any error in arriving at a finding that the respondent Bank is not a part of "the State" within the meaning of Article 12 of the Constitution. " According to him, the petition is not maintainable because the writ jurisdiction is not available against the private bodies. 10. In this behalf, the learned counsel for the petitioner has relied on the decision of this Court in 1983 Mh.L.J. 1081, Pandurang Hindurao Patil vs. State of Maharashtra and others, wherein it has been held thus: "A petition filed challenging an order of the Returning Officer in respect of election to Managing Committee of a Co-operative Society raising a question as to wrong acceptance or rejection of nomination papers cannot 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 petition and that it should never be entertained. When a petitioner comes to the High Court under Article 226 of the Constitution challenging a wrong rejection or acceptance of a nomination paper two courses are open to the High Court. Firstly, the question to be faced at the threshold is whether the writ can issue to a Returning Officer and secondly if a Returning Officer is amenable to the jurisdiction of the High 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 and the second question relates to the exercise or non-exercise of the power under Article 226 on the facts of each case and this must be governed by the well-known principles. The first question relates to the maintainability of the petition and the second question relates to the exercise or 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 Maharashtra Co-operative Societies Act, which is a time consuming procedure. 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 of the Constitution are not attracted to the facts of the case. Where the matter is brought before the High Court sufficiently in advance, that the matter can be heard and disposed of before the polling is due to take place and where there is an error on the face of the record such as if a Returning Officer rejects a nomination paper on a wholly inadequate ground, 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 such a case relief should not be refused merely because the petitioner can pursue another remedy by filing an election petition after the election is held. Each case should be considered on its own facts and where without staying and 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. The Returning Officer is not a statutory authority under the Maharashtra Co-operative Societies Act but is a creation of bye-laws and rules made with regard to the conduct of the elections. The Returning Officer is not a statutory authority under the Maharashtra Co-operative Societies Act but is a creation of bye-laws and rules made with regard to the conduct of the elections. So far as the jurisdiction of the High Court under Article 226 to issue writs to nonstatutory 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 a person or authority on whom the statutory duty is cast need be public official or an official body. The Returning Officer even though he is a private individual is required to perform a statutory or a legal duty and anything done by him in the performance of his duty if it is illegal or ultra vires his powers can be set right at the instance of a person who is adversely affected by his decision and such a person can approach the High Court under Article 226. Section 73 of the Maharashtra Co-operative Societies Act statutorily requires that the Managing Committee of every society has to be constituted not only in accordance with the Act and the Rules, but also in accordance with the Bye-laws. If section 73 thus requires the constitution of a Managing Committee in accordance with Bye-law also then it obviously casts a statutory obligation on the Returning Officer to comply with not only the Act and Rules but also with Bye-laws. Any decision which is not inconformity with the Bye-laws or which is in excess of the Bye-laws will clearly result in affecting the constitution of the Managing Committee and infraction or violation of the provisions of section 73 of the Act. Any decision which is not inconformity with the Bye-laws or which is in excess of the Bye-laws will clearly result in affecting the constitution of the Managing 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 constituted contrary to the mandate of section 73 of the Act and its mandate requires constitution in accordance with the Act, the Rules and Bye-laws, the matter can be brought before the High Court and if the High Court is satisfied that in a given case interference is necessary the petition cannot be rejected in limine on the grounds that it does not lie and the dispute must only be resolved by recourse of the machinery under section 91 of the Maharashtra Cooperative Societies Act after the result of the Election is declared. A writ petition thus lies under Article 226 of the Constitution challenging an order of a Returning Officer rejecting or accepting a nomination paper and it cannot be rejected on the ground that the petition does not lie. However, whether in a given case the High Court will entertain the petition and interfere or not will depend on the facts and circumstances of each case. " He has also relied on the decision of this Court reported in 2007(1) Mh.L.J. 771 , Jagannath Pandharinath Rewaskar and others vs. Minister of State for Cooperation and others, wherein it has been held thus "An election officer appointed under Maharashtra Co-operative Societies Act is to be regarded as public authority and in appropriate cases writ can be issued against him. He is born under the said Act and cannot do anything which is not provided for or prescribed under it. All his orders and actions which have any bearing or effect on election programme will have to be treated as orders under Maharashtra Cooperative Societies Act. Hence, all his orders can be challenged only before Single Judge of High Court in view of Chapter XVIL Rule 18(12) of the Bombay High Court Appellate Side Rules. " 11. All his orders and actions which have any bearing or effect on election programme will have to be treated as orders under Maharashtra Cooperative Societies Act. Hence, all his orders can be challenged only before Single Judge of High Court in view of Chapter XVIL Rule 18(12) of the Bombay High Court Appellate Side Rules. " 11. As the action of Election Officer as a consequence of direction issued by the Assistant Registrar and District Deputy Registrar has been challenged, in my opinion, this Court can exercise the powers under writ jurisdiction to rectify the errors and set right the illegalities, if it is required so. 12. In the present case, the learned counsel for the respondents have relied on the provisions of section 73-C(3) of the Maharashtra Co-operative Societies Act to justify the action of insertion of Clause Nos. 4 and 5 in the election programme by the Election Officer. They also relied on the Full Bench judgment of this 'Court in 2008(6) Mh.L.J. 914 , Kushal Bapurao Pawar vs. State of Maharashtra and others; whereas the learned counsel for the petitioner vehemently contended that the petitioner and other members of the society have been denied the right of voting to all 13 members of the Managing Committee. According to him, the non-borrower category voters have been prevented to vote to the candidate from borrowers category and borrower category voters have been prevented to vote to the candidate from non-borrowers category and therefore, they have been deprived of the right of casting all the 13 votes. He has also relied on the same judgment of this Court in 2008(6) Mh.L.J. 914 , Kushal Bapurao Pawar vs. State of Maharashtra and others, saying that in the case of the present society, bye-laws of the society do not permit such categorization of the voters i.e. non-borrower and borrowers. According to him, such classification is permissible only when the bye-law permits such separation. He has further relied on the judgments of this Court in 2002(3) Mh.L.J. 863 , Dadarao Apparao Khatke vs. State of Maharashtra and others, 2007(3) Mh.L.J. 539, Vijay Shivaji Kokate vs. Divisional Joint Registrar, Co-operative Societies, Nashik and others, and 2004(1) Mh.L.J. 923 , Bhajandas Gorekh Bhuirkar vs. District Election Officer and others. He has further relied on the judgments of this Court in 2002(3) Mh.L.J. 863 , Dadarao Apparao Khatke vs. State of Maharashtra and others, 2007(3) Mh.L.J. 539, Vijay Shivaji Kokate vs. Divisional Joint Registrar, Co-operative Societies, Nashik and others, and 2004(1) Mh.L.J. 923 , Bhajandas Gorekh Bhuirkar vs. District Election Officer and others. He has also relying on 1982 Mh.L.J. 543, Deorao Vithoba Kale vs. Divisional Joint Registrar, Co-operative Societies, Nagpur and others, contended that review of the order of the Assistant Registrar was not permissible and as such even the Election Officer could not review his own change of Clause 4 and 5 at the instance of respondent No. 5 and therefore, he should have stuck up to the change in Clause Nos. 4 and 5 which he had caused during the course of election programme to correct the situation, whereby all the voters should had been allowed to cast all 13 votes for the 13 candidates for the Managing Committee. Therefore, according to him, latter action taken by the Election Officer and the respondent Nos. 1 and 3 was not correct. As such, according to him, the non-borrower voters should have been allowed to cast the vote to the borrower category candidate and the borrower voters should have been allowed to cast the vote to the candidate of non-borrower category. 13. As stated above, the respondents relying on the provisions of section 73-C(3) of the Maharashtra Co-operative Societies Act tried to justify the later action. 14. At this stage, one has to see the provisions of section 73-C(3) of the Maharashtra Co-operative Societies Act, the same read thus : "73-C(3). In the case of an Agricultural Credit Society which gives loans to individuals for the raising of crops, there shall not be more than one representative on the Committee of such society of members who have not taken any loans from the society; and that representative shall be elected only from amongst members who have not taken loans. Such representative shall not be eligible for being elected as a designated officer. " The relevant bye-laws in respect of respondent No.2 Society read thus 7. Any member can propose or remain seconder the names of candidates equal to the candidates for the post of member of managing committee to be elected. The proposer or the seconder should be from the voter list of that category. " The relevant bye-laws in respect of respondent No.2 Society read thus 7. Any member can propose or remain seconder the names of candidates equal to the candidates for the post of member of managing committee to be elected. The proposer or the seconder should be from the voter list of that category. If anyone has proposed or seconded the more names than that the requirement, then such application will be treated as cancelled. 14. The election would be by separate ballot. Any voter will be entitled to cast vote more than the percentage of the posts to be elected. If the more votes are registered in the ballot then such ballot would be treated as cancelled. The candidate to whom the vote is cast, it should be specifically indicated. There should be no scoring on the ballot in any way. Whether the ballot on which vote is cast is valid or not would be within the power of Returning Officer. If there arises any dispute appeal under section 91 of the Maharashtra Co-operative Societies Act, 1956 could be preferred. 15. Learned counsel for the petitioner has contended that the bye-law (14) does not provide for such separate category of voters and candidates in borrower and non-borrower constituencies, and therefore, the insertion of Clauses 4 and 5 in the election programme was illegal. As against this, the respondents contend that it was correct in view of the provisions of section 73-C(3) quoted above. 16. Bye-law No. 38-A of society reads thus – 38-A. One member from the managing committee would be elected from non-borrower members. However, such elected member would not be eligible to be elected as nominated officer bearer like Chairman, Vice Chairman, President, Vice President, Non-salaried Secretary, Joint Secretary or Managing Director. Note: Non-borrower member means a member who has not taken loan since becoming member. (Emphasis mine) Therefore, it clearly appears that Bye-law 38-A is in consonance with section 73-C(3) of the Maharashtra Co-operative Societies Act. 17. In order to appreciate the controversy in the matter, Full Bench Judgment of this Court in Kushal 's case needs to be referred. The majority view therein as regards the interpretation of section 73-C(3) is thus "It would, therefore be clear on the literal interpretation that the subsection permits representation, and that representative shall be from amongst non-borrower members. Is such representation to be elected from them? The majority view therein as regards the interpretation of section 73-C(3) is thus "It would, therefore be clear on the literal interpretation that the subsection permits representation, and that representative shall be from amongst non-borrower members. Is such representation to be elected from them? Chikhali v. K.S.S. noted that whereas section 73-C(1) uses the expression "by", section 73-C(3) used the expression "from amongst". This itself will indicate that under section 73-C(1), it is permissible to create a constituency and that will not be in conflict with section 27. Section 165(3) provides that the Government may make rules for carrying out the purpose of the Act and sub-section (2) provides that such rules may prescribe the manner in which a society may make or the Registrar may direct a society to make bye-laws and the conditions to be followed in making, altering and abrogating bye-laws and the conditions to be satisfied prior to such making alteration or abrogation. " Further, the majority view in the aforesaid decision is that separate byelaws can be validly framed for creating the restrictive right of voting to a class of members. Apart from this, it was also held therein that as the Maharashtra Cooperative 'Societies Act and its Rules provide that bye-laws must provide of constituency, if constituencies are created for a class of members, considering the language of section 73-C(3) and the right to vote is restricted to such class of members, then such bye-laws will not be ultra-vires". This majority view expressed by Hon'ble Shri Justice F.I. Rebello and Hon'ble Shri Justice V. R. Kingaonkar. 18. It may be mentioned that there is also a dissenting view of Hon'ble Shri Justice S. B. Deshmukh therein. 19. Here it may also be noticed that in 2004(1) Mh.L.J. 923 , Bhajandas Gorekh Bhuirkar vs. District Election Officer and others. The Division Bench of this Court has held thus "12. In the present case, the petitioner has not challenged and we are not called upon to decide the validity of the bye-law No. 38A of the respondent No. 3 Society. We have accordingly, proceeded on the assumption that the bye-law No. 38A of bye-laws of the respondent No.3 Society is valid and binding on the members. Bye-law No. 38A of respondent No. 3 society creates two separate constituencies, one of the borrower members and another of the non-borrower members. We have accordingly, proceeded on the assumption that the bye-law No. 38A of bye-laws of the respondent No.3 Society is valid and binding on the members. Bye-law No. 38A of respondent No. 3 society creates two separate constituencies, one of the borrower members and another of the non-borrower members. A member belonging to one of the constituency is not entitled to vote at election of the member of the Managing Committee from the other constituency under the said bye-law. The contention of the petitioner that though he was a non-borrower member, he was entitled to vote at the election of the respondent No. 3 Society for all constituencies including the constituency of borrower members cannot be accepted. The petition would, therefore, have to be dismissed. " Further, the other Division Bench of this Court in 2007(4) Mh.L.J. 888 , Sanjay D. Jadhav vs. State of Maharashtra and others, has held that when there is an election to the Managing Committee of Vividh Karyakari Sahakari Society and which Bye-law of the Society carve out separate constituencies for borrower and non-borrower members, voting right of the members should have to be restricted to their respective constituencies. The relevant para 10 in this regard reads thus : “10. We have given our anxious consideration to the rival contentions. A reading of the bye-law makes it absolutely clear that there are three separate constituencies carved out. However, in view of the present position wherein there were only two constituencies i.e. borrower and non-borrower constituencies in the respondent No. 3 society. Though there is no express bar in bye-laws restricting the right of voting to the members belonging to the respective constituencies, the fact that separate constituencies have been created would imply that the right of voting would have to be necessarily restricted as otherwise there would have been no necessity of carving out separate constituencies and only the seats could have been reserved for the said categories. We, therefore, find considerable merit in the submission of the learned counsel for the respondents that in view of the fact that separate constituencies have been' 'Carved out for borrower and non-borrower members, voting right would therefore have to be restricted. " 20. Thus, it would be seen that if bye-laws provide for separate constituencies i.e. one for non-borrowers and other for borrowers, there can be a provision for restrict right of voting on the voters. " 20. Thus, it would be seen that if bye-laws provide for separate constituencies i.e. one for non-borrowers and other for borrowers, there can be a provision for restrict right of voting on the voters. In my opinion, the main thrust appears to be on the requirement of availability of such eloquent provisions in the bye-laws in that respect. 21. I have already pointed out above the relevant extracts of bye-laws of respondent No. 2 society. It does not provide for separate constituencies for borrowers and non-borrowers in specific. Bye-law No. 38-A only shows that one member would be elected from non-borrower members. The restriction is provided on the number of such members in the Managing Committee, so that there should be a representative of the non-borrower members on the Managing Committee. Learned counsel for the respondents are unable to point out anything from the bye-laws of the society - respondent No. 2 that provides for separate constituencies of borrower voters and non-borrower voters, in a way; therefore, the voting right of the remembers does not appear to be restricted by bye-laws. The judgments referred above would show that if bye-laws provide such restrictions, the restrictions would not be illegal or violative of provisions of section 73-C(3) of the Maharashtra Co-operative Societies Act or the principle enshrined in the Article 14 of the Constitution of India. But when such bye-law does not provide for such restricted right of voting. In my opinion i.e. the restriction on such right as provided in Clauses 4 and 5 by the Election Officer would be without any authority and therefore, is liable to be struck down. 22. It is necessary again to note that the authority in Kushal's case is in respect of provisions of restrictive rights created by the bye-laws and its validity. If such restriction is provided by the bye-laws, then that would be valid. But when such restriction is not at all provided by the bye-laws, by implication it cannot be interpreted to invite an effect of restricting the right of the voters. The members have to be permitted to vote to the candidates from borrower category as well as non-borrower category; as in the case of candidates in reserved category. 23. But when such restriction is not at all provided by the bye-laws, by implication it cannot be interpreted to invite an effect of restricting the right of the voters. The members have to be permitted to vote to the candidates from borrower category as well as non-borrower category; as in the case of candidates in reserved category. 23. To clarify further, it may be stated, Full Bench of this Court by majority has answered the relevant questions, thus (1) Whether, section 73-C of the Maharashtra Co-operative Societies Act, 1960, carves out restrictive right to vote for borrower or nonborrower members or all the members should have a right for electing all the seats of the managing committee? (2) Whether, separate bye-law can validly be framed for creating restrictive right of voting? 19=Conclusions (i) Section 73-C(3) of the Maharashtra Co-operative Societies Act, 1960, read with the bye-laws enables a restrictive right to vote, for non-borrower members. (ii) As the Act and its rules provide that the bye-laws must provide for constituencies, if constituencies are created for a class of members , considering the language of section 7 3-C(3) and the right to vote is 'restricted to such class of members, then such bye-laws will not be ultra vires section 73-C(3) or section 27 of the Maharashtra Cooperative Societies Act, 1960. " 24. In earlier part of the judgment, it has been observed thus "17. In our opinion, however, a statutory provision including a bye-law, even if be not an exercise in subordinate legislation, which is unreasonable can also be struck down for violation of Article 14. Therefore, it cannot be said that Article 14 cannot be invoked in a case even where a provision is said to be unreasonable or arbitrary. As such, it would not be a fundamental right of a member which is being affected but a provision of a bye-law. Those unreported judgments can also be read in the another context to mean that what the learned Benches really held, was that the bye-laws were ultra vires the provisions of section 73C(3) and section 27. If so read, then the issue of fundamental right would not arise. Considering the judgments, apart from using the expression "discriminatory ", the learned Division Benches have not proceeded on the footing that they are violative of the fundamental rights of a member. If so read, then the issue of fundamental right would not arise. Considering the judgments, apart from using the expression "discriminatory ", the learned Division Benches have not proceeded on the footing that they are violative of the fundamental rights of a member. They proceed on the footing that they will be ultra-vires section 27. 18. In our opinion, it will not be possible to accept the view taken by the two Division Benches in the unreported judgments as also the view taken by the learned Single Judge in Utrane V.K.S.S.(supra). Section 73-C(3) permits a restriction on representation from amongst non-borrowers and further provides that such members must be from the class of nonborrowers. Bye-laws, therefore, can provide that from such constituency only members belonging to that class can vote. This is a view held by this Court from Chikhali V.K.S.S. till Sanjay Jadhav (supra). In our view, considering that this view is prevailing from 1984 onwards and our earlier discussion, it cannot be said that such a bye-law is not in conformity with the language of section 73-C(3) or in conflict with section 27 of the Act. The reference insofar as the second point is concerned, will have to be answered in the affirmative namely that separate bye-laws can be validly framed for creating restrictive right of voting to a class of members. It therefore, clearly appears that section 73-C(3) of Maharashtra Co-operative Societies Act read with the bye-laws enables to create the restrictive right to vote to the non-borrower members. 25. It is pointed out by the learned counsel for the petitioner that in earlier elections of this society, there were no such restrictions on the right of voting of members. For the first time, this was brought by the instant election programme and therefore, though section 73-C(3) provides for restriction of election of representative, only amongst the members who have taken loan, the restriction on ' non-borrowers for voting to other categories, in absence of bye-laws, would not be justified. The representative has to be elected only from the members who have not taken loan. Therefore, such representative or the candidate can only be from the members who have taken 'non-loan'. Therefore, unless there is some bye-laws tJ prescribe separate constituencies for borrowers and non-borrowers, in my opinion, the impugned conditions i.e. clause Nos. 4 and 5 would not withstand the legal scrutiny. 26. Therefore, such representative or the candidate can only be from the members who have taken 'non-loan'. Therefore, unless there is some bye-laws tJ prescribe separate constituencies for borrowers and non-borrowers, in my opinion, the impugned conditions i.e. clause Nos. 4 and 5 would not withstand the legal scrutiny. 26. In my considered opinion, there has to be a bye-law which can be supported by the provisions of section 73-C(3) of the Maharashtra Co-operative Societies Act, for a society to provide restrictive right to vote for non-borrower members. Considering the facts of the present case and bye-laws of respondent No.2-society, it does not appear so. 27. In sequel; the petition succeeds. Ordered accordingly. However, in the circumstances of case it is ordered that unless vote of petitioner can affect the result of the Elections, the same shall not be held illegal merely because of the view expressed in this judgment on this issue. The Election dispute, filed to challenge the instant election, if any, shall be decided on its own merits. Order accordingly.