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2019 DIGILAW 396 (ALL)

Krishna Mohan v. State of U. P.

2019-02-14

ROHIT RANJAN AGARWAL

body2019
JUDGMENT : ROHIT RANJAN AGARWAL, J. 1. Heard Sri Sujeet Kumar Rai, learned Counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Sri H.R. Mishra, learned Senior Counsel assisted by Sri Abhishek Mishra, learned Counsel for respondent nos. 2 and 3. 2. The petitioner is an Accountant in Sadhan Sahkari Samiti Limited, Saingai, Block District Firozabad. He has challenged the order dated 24.12.2018 passed by the Chairman of the said Society. 3. Sri H.R. Mishra, learned Senior Counsel has raised a preliminary objection regarding maintainability of the writ petition. He has relied upon the judgment of Full Bench of this Court in case of Vijay Bihari Srivastava vs. U.P. Postal Primary Co-operative Bank Ltd. and Another, (2003) 1 UPLBEC 1 . It was held as under:- "35. In the light of foregoing discussions, we answer question as to whether a writ petition in the nature of certiorari will lie against a Co-operative Society or it comes within the meaning of the words other Authority occurring in Article 226 of the Constitution, as follows: The writ petition in the nature of certiorari will lie against a Co-operative Society only when such Society has ingredient of an Authority within the meaning of Article 226 of the Constitution and not otherwise. The following guidelines are culled out from the various decisions of the Supreme Court, referred to above:- 1. The constitution of the Managing Body/Committee constitutes the functionaries of the Government. 2. There is an existence of deep and pervasive control of the management and policies of the Co-operative Society by the Government. 3. The function of the Co-operative Society is of public importance and closely related to the Governmental functions. 4. The financial control is by the Government or it provides financial aid controlling its affairs. 5. The violation of statutory rules applicable to the Society in regard to the service matters of its employees. 6. Statutory violations or non-compliance of it by an authority under the Act." 4. He further relied upon the judgment of the Apex Court in case of General Manager, Kisan Sahkari Chini Mills Ltd. vs. Satrughan Nishad and Others, (2004) 1 UPLBEC 7 . In the said case, the Apex Court held as under:- "6. The point raised is no longer res integra as the same is concluded by decisions of this Court. He further relied upon the judgment of the Apex Court in case of General Manager, Kisan Sahkari Chini Mills Ltd. vs. Satrughan Nishad and Others, (2004) 1 UPLBEC 7 . In the said case, the Apex Court held as under:- "6. The point raised is no longer res integra as the same is concluded by decisions of this Court. In the case of Ajay Hasia and Others vs. Khalid Mujib Sehravardi and Others, (1981) 1 SCC 722 , a Constitution Bench of this Court, while approving the tests laid down in the case of Ramana Dayaram Shetty vs. International Airport Authority of India and Others, (1979) 3 SCC 489 , as to when a corporation can be said to be an instrumentality or agency of the government, observed which runs thus:- "The tests for determining as to when a corporation can be said to be an instrumentality or agency of government may now be culled out from the judgment in the International Airport Authority case. These tests are not conclusive or clinching, but they are merely indicative indicia which have to be used with care and caution, because while stressing the necessity of a wide meaning to be placed on the expression "other authorities" it must be realised that it should not be stretched so far as to bring in every autonomous body which has some nexus with the government within the sweep of the expression. A wide enlargement of the meaning must be tempered by a wise limitation. We may summarise the relevant tests gathered from the decision in the International Airport Authority case as follows: (1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (3) It may also be a relevant factor whether the corporation enjoys monopoly status which is State conferred or State protected. (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (3) It may also be a relevant factor whether the corporation enjoys monopoly status which is State conferred or State protected. (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (6) "Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference" of the corporation being an instrumentality or agency of Government. If on a consideration of these relevant factors it is found that the corporation is an instrumentality or agency of government, it would, as pointed out in the International Airport Authority case, be an authority and therefore, State within the meaning of the expression in Article 12." 7. In the case of Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and Others (2002) 5 SCC 111 , a Bench of seven Judges of this Court, in para 27 of its judgment has noted and quoted with approval in extenso the aforesaid tests propounded in International Airport Authority case (supra) and approved in the case of Ajay Hasia (supra) for determining as to when a corporation can be said to be an instrumentality or agency of the government so as to come within the meaning of the expression authority in Article 12 of the Constitution. There the Bench referred to the case of Chander Mohan Khanna vs. NCERT, (1991) 4 SCC 578 where, after considering the memorandum of association and the rules, this Court came to the conclusion that NCERT was largely an autonomous body and its activities were not wholly related to governmental functions and the government control was confined only to the proper utilisation of the grants and since its funding was not entirely from government resources, the case did not satisfy the requirements of the State under Article 12 of the Constitution. Further, reference was also made in that case to the decision of this Court in Mysore Paper Mills Ltd. vs. Mysore Paper Mills Officers' Association and Another, (2002) 2 SCC 167 , where it was held that the company was an authority within the meaning of Article 12 of the Constitution as it was substantially financed and financially controlled by the Government, managed by a Board of Directors nominated and removable at the instance of the Government and carrying on important functions of public interest under the control of the Government. 8. From the decisions referred to above, it would be clear that the form in which the body is constituted, namely, whether it is a society or co-operative society or a company, is not decisive. The real status of the body with respect to the control of government would have to be looked into. The various tests, as indicated above, would have to be applied and considered cumulatively. There can be no hard and fast formula and in different facts/situations, different factors may be found to be overwhelming and indicating that the body is an authority under Article 12 of the Constitution. In this context, Bye Laws of the Mill would have to be seen. In the instant case, in one of the writ applications filed before the High Court, it was asserted that the Government of Uttar Pradesh held 50% shares in the Mill which fact was denied in the counter affidavit filed on behalf of the State and it was averred that majority of the shares were held by cane growers. Of course, it was not said that the Government of Uttar Pradesh did not hold any share. Before this Court, it was stated on behalf of the contesting respondents in the counter affidavit that the Government of Uttar Pradesh held 50% shares in the Mill which was not denied on behalf of the Mill. Therefore, even if it is taken to be admitted due to non traverse, the share of the State Government would be only 50% and not entire. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. Thus, the first test laid down is not fulfilled by the Mill. It has been stated on behalf of the contesting respondents that the Mill used to receive some financial assistance from the Government. According to the Mill, the Government had advanced some loans to the Mill. It has no where been stated that the State used to meet any expenditure of the Mill much less almost the entire one, but, as a matter of fact, it operates on the basis of self generated finances. There is nothing to show that the Mill enjoys monopoly status in the matter of production of sugar. A perusal of Bye-Laws of the Mill would show that its membership is open to cane growers, other societies, Gram Sabha, State Government, etc. and under Bye-Law 52, a committee of management consisting of 15 members is constituted, out of whom, 5 members are required to be elected by the representatives of individual members, 3 out of co-operative society and other institutions and 2 representatives of financial institutions besides 5 members who are required to be nominated by the State Government which shall be inclusive of the Chairman and Administrator. Thus, the ratio of the nominees of State Government in the committee is only 1/3rd and the management of the committee is dominated by 2/3rd non-government members. Under the Bye-Laws, the State Government can neither issue any direction to the Mill nor determine its policy as it is an autonomous body. The State has no control at all in the functioning of the Mill much less deep and pervasive one. The role of the Federation, which is the apex body and whose ex-officio Chairman-cum-Managing Director is Secretary, Department of Sugar Industry and Cane, Government of Uttar Pradesh, is only advisory and to guide its members. The letter sent by Managing Director of the Federation on 22nd November, 1999 was merely by way of an advice and was in the nature of a suggestion to the Mill in view of its deteriorating financial condition. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. From the said letter, which is in the advisory capacity, it cannot be inferred that the State had any deep and pervasive control over the Mill. Thus, we find none of the indicia exists in the case of Mill, as such the same being neither instrumentality nor agency of government cannot be said to be an authority and, therefore, it is not State within the meaning of Article 12 of the Constitution." 5. Further, in the case of S.S. Rana vs. Registrar, Coop Societies and Another, (2006) 11 SCC 634 , the Apex Court held as under:- "12. It is well settled that general regulations under an Act, like Companies Act or the Co-operative Societies Act, would not render the activities of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper functioning of the Society and the State or statutory authorities would have nothing to do with its day-to-day functions. 13. The decision of the Seven Judge Bench of this Court in Pradeep Kumar Biswas (supra), whereupon strong reli:- 12. It is well settled that general regulations under an Act, like Companies Act or the Co-operative Societies Act, would not render the activities of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper functioning of the Society and the State or statutory authorities would have nothiance has been placed, has no application in the instant case. In that case, the Bench was deciding a question as to whether in view of the subsequent decisions of this Court, the law was correctly laid down in Sabajit Tewary vs. Union of India and Others, (1975) 1 SCC 485 and it not whether the same deserved to be overruled. The majority opined that the Council of Scientific and Industrial Research (CSIR) was a 'State' within the meaning of Article 12 of the Constitution of India. This Court noticed the history of the formation thereof, its objects and functions, its management and control as also the extent of financial aid received by it. The majority opined that the Council of Scientific and Industrial Research (CSIR) was a 'State' within the meaning of Article 12 of the Constitution of India. This Court noticed the history of the formation thereof, its objects and functions, its management and control as also the extent of financial aid received by it. Apart from the said fact it was noticed by reason of an appropriate notification issued by the Central Government that CSIR was amenable to the jurisdiction of the Central Administrative Tribunal in terms of Section 14(2) of the Administrative Tribunals Act, 1985. It was on the aforementioned premises this Court opined that Sabhajit Tewary (supra) did not lay down the correct law. This Court reiterated the following six tests laid down in Ajay Hasia vs. Khalid Mujib Sehravardi: "(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with Governmental character. (3) It may also be relevant factor........whether the corporation enjoys monopoly status which is State conferred or State protected. (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (5) If the functions of the corporation are of public importance and closely related to Governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government." This Court further held: "40. This picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesi, be considered to be a State within the meaning of Article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State." (Emphasis supplied) 6. Similarly a Full Bench of this Court in Writ Appeal No. 60557 of 2015, Anil Kumar Pandey and Others vs. State of U.P. and Others decided the following questions:- 1. Whether a writ petition under Article 226 of the Constitution of India would be maintainable against a Cooperative Cane Development Society at the instance of its employee, for alleged breach of the provisions of the Uttar Pradesh Cane Cooperative Service Regulations, 1975 which govern his service conditions. 2. Whether the law laid down in Ram Karan vs. State of U.P. and Others, or Srinarayan Gupta vs. State of U.P. is the correct law, in view of the law laid down by the Full Bench in Vijay Bihari Srivastava vs. U.P. Postal Primary Co-operative Bank Ltd. 3. Whether the U.P. Cane Cooperative Service Regulations, 1975 are statutory in nature having been issued under Section 122 of the Uttar Pradesh Cooperative Societies Act, 1965 or are merely in the nature of administrative instructions. 7. Court held as under:- Having regard to this position, we would necessarily have to hold, as we do, that the broad principle of law which has been formulated in the judgment of the Division Bench in Shrinarayan Gupta (supra) would not be reflective of the correct position of law. Both the judgments of the Division Bench in Shrinarayan Gupta and of the learned Single Judge in Ram Karan would necessarily have to be read in a manner consistent with the view Having regard to this position, we would necessarily have to hold, as we do, that the broad principle of law which has been formulated in the judgment of the Division Bench in Shrinarayan Gupta (supra) would not be reflective of the correct position of law. Both the judgments of the Division Bench in Shrinarayan Gupta and of the learned Single Judge in Ram Karan would necessarily have to be read in a manner consistent with the view taken in the judgment of the Bench of five learned Judges of this Court in Vijay Bihari Srivastava's case. The Regulations which have been framed in exercise of the power conferred by Section 122 of the Act are traceable to a source of statutory power. These Regulations are framed by the Cane Commissioner as an authority to whom the functions of doing so have been delegated by the State Government under Section 122. Hence, the Regulations cannot be regarded merely as administrative instructions. The Regulations have been made in pursuance of the statutory power conferred by Section 122. We accordingly answer Questions (2) and (3) referred by the learned Single Judge in the aforesaid terms. Insofar as Question (1) is concerned, the issue would have to be resolved having due regard to the tests which have been laid down in the judgment of five Judges of this Court in Vijay Bihari Srivastava's case. Moreover, the issue of maintainability is distinct from whether the discretion should be exercised under Article 226 in a given case. Even if a petition is maintainable, the Court may, in the facts of a particular case, decline to entertain it under Article 226 as, for instance, where disputed questions of fact arise or an efficacious alternate remedy is available. 8. That the matter relating to the dismissal from service was challenged before this Court in Kisan Sahkari Chini Mills Ltd. and Another vs. Rakesh Chandra Gangwar and Others, (2004) 3 UPLBEC 2447, it was held as under:- 52. We cannot accept this submission. Even assuming that the action against the respondents was taken in pursuance of these letters and circular, a cooperative society is autonomous in its functioning and the aforesaid letters and circular can only be deemed to be advice to the society. Moreover, even without these letters and circular action had to be taken against those who/indulged in disruptive activities, as no organization can function without discipline. 53. In the writ petition there is no mention in any Paragraph giving details as to how it can be said that the Society is State under Article 12 of the Constitution. Moreover, even without these letters and circular action had to be taken against those who/indulged in disruptive activities, as no organization can function without discipline. 53. In the writ petition there is no mention in any Paragraph giving details as to how it can be said that the Society is State under Article 12 of the Constitution. In fact it is admitted in Paragraph 3 that the society is neither a statutory corporation nor has been created or established by any statute. It is also averred in Paragraph 3 of the writ petition that the society is not engaged in discharging any service whatsoever for the public at large. The society has been constituted as a cooperative sugar factory and registered as a cooperative society under the U.P. Cooperative Societies Act. 1965. It is engaged in the manufacture of sugar. It is alleged in Paragraph 5 of the writ petition that the corpus of the cooperative society has been contributed by the individual members who hold specified shares in the cooperative society. No doubt an averment has been made in Paragraph 5 of the writ petition that according to the information of the petitioner the State Government is also one of the subscribers and its share holding constitutes the majority share holding. However, this is only a bald assertion without giving any details. 54. In the absence of any details in the petition mentioning clearly what exactly is the kind of deep and pervasive State control over the society, what exactly is the shareholding of the Government, etc. it is not possible for us on the pleadings to hold that the cooperative societies of the respondents are State under Article 12 of the Constitution. 55. However, even assuming that the societies were State under Article 12 of the Constitution we are of the opinion that the writ petitions should have been dismissed on the ground of alternative remedy. After all, writ jurisdiction is discretionary jurisdiction, and one of the settled principles is that ordinarily a writ petition should not be entertained if there is an alternative remedy. 9. That in case of Thalappalam Ser. Coop. Bank Ltd. and Others vs. State of Kerala and Others, the Apex Court while deciding the Civil Appeal No. 9017 of 2013 while considering the cooperative societies and Article 12 of the Constitution held as under:- 13. 9. That in case of Thalappalam Ser. Coop. Bank Ltd. and Others vs. State of Kerala and Others, the Apex Court while deciding the Civil Appeal No. 9017 of 2013 while considering the cooperative societies and Article 12 of the Constitution held as under:- 13. We may first examine, whether the Co-operative Societies, with which we are concerned, will fall within the expression "State" within the meaning of Article 12 of the Constitution of India and, hence subject to all constitutional limitations as enshrined in Part III of the Constitution. This Court in U.P. State Co-operative Land Development Bank Limited vs. Chandra Bhan Dubey and Others, (1999) 1 SCC 741 , while dealing with the question of the maintainability of the writ petition against the U.P. State Co-operative Development Bank Limited held the same as an instrumentality of the State and an authority mentioned in Article 12 of the Constitution. On facts, the Court noticed that the control of the State Government on the Bank is all pervasive and that the affairs of the Bank are controlled by the State Government though it is functioning as a co-operative society, it is an extended arm of the State and thus an instrumentality of the State or authority as mentioned under Article 12 of the Constitution. In All India Sainik Schools Employees' Association vs. Defence Minister-cum-Chairman Board of Governors, Sainik Schools Society, New Delhi and Others, (1989) Supp. 1 SCC 205, this Court held that the Sainik School society is "State" within the meaning of Article 12 of the Constitution after having found that the entire funding is by the State Government and by the Central Government and the overall control vests in the governmental authority and the main object of the society is to run schools and prepare students for the purpose feeding the National Defence Academy. 14. This Court in Executive Committee of Vaish Degree College, Shamli and Others vs. Lakshmi Narain and Others, (1976) 2 SCC 58 , while dealing with the status of the Executive Committee of a Degree College registered under the Co-operative Societies Act, held as follows: "10.........It seems to us that before an institution can be a statutory body it must be created by or under the statute and owe its existence to a statute. This must be the primary thing which has got to be established. This must be the primary thing which has got to be established. Here a distinction must be made between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. There have been a number of institutions which though not created by or under any statute have adopted certain statutory provisions, but that by itself is not, in our opinion, sufficient to clothe the institution with a statutory character.........." 15. We can, therefore, draw a clear distinction between a body which is created by a Statute and a body which, after having come into existence, is governed in accordance with the provisions of a Statute. Societies, with which we are concerned, fall under the later category that is governed by the Societies Act and are not statutory bodies, but only body corporate within the meaning of Section 9 of the Kerala Co-operative Societies Act having perpetual succession and common seal and hence have the power to hold property, enter into contract, institute and defend suites and other legal proceedings and to do all things necessary for the purpose, for which it was constituted. Section 27 of the Societies Act categorically states that the final authority of a society vests in the general body of its members and every society is managed by the managing committee constituted in terms of the bye-laws as provided under Section 28 of the Societies Act. Final authority so far as such types of Societies are concerned, as Statute says, is the general body and not the Registrar of Cooperative Societies or State Government. 16. This Court in Federal Bank Ltd. vs. Sagar Thomas and Others, (2003) 10 SCC 733 , held as follows: "32. Merely because Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business or commercial activity of banking, discharge any public function or public duty. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. As to the provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now a judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for the acquiring authority." 17. Societies are, of course, subject to the control of the statutory authorities like Registrar, Joint Registrar, the Government, etc. but cannot be said that the State exercises any direct or indirect control over the affairs of the society which is deep and all pervasive. Supervisory or general regulation under the statute over the co-operative societies, which are body corporate does not render activities of the body so regulated as subject to such control of the State so as to bring it within the meaning of the "State" or instrumentality of the State. Above principle has been approved by this Court in S.S. Rana vs. Registrar, Co-operative Societies and Another, (2006) 11 SCC 634 . In that case this Court was dealing with the maintainability of the writ petition against the Kangra Central Co- operative Society Bank Limited, a society registered under the provisions of the Himachal Pradesh Co-operative Societies Act, 1968. After examining various provisions of the H.P. Co-operative Societies Act this Court held as follows: "9. It is not in dispute that the Society has not been constituted under an Act. Its functions like any other cooperative society are mainly regulated in terms of the provisions of the Act, except as provided 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. Its functions like any other cooperative society are mainly regulated in terms of the provisions of the Act, except as provided 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 cooperative society, indisputably, are governed by the Rules. Rule 56, to which reference has been made by Mr. Vijay Kumar, does not contain any provision in terms whereof any legal right as such is conferred upon an officer of the Society. 10. It has not been shown before us that the State exercises any direct or indirect 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 to statutory functions or public functions? (4) Can it be characterised as public authority? 11. Respondent 2, the Society does not answer any of the aforementioned tests. In the case of a non-statutory society, the control thereover would mean that the same satisfies the tests laid down by this Court in Ajay Hasia vs. Khalid Mujib Sehravardi and Zoroastrian Coop. Housing Society Ltd. vs. District Registrar, Coop. Societies (Urban). 12. It is well settled that general regulations under an Act, like the Companies Act or the Cooperative Societies Act, would not render the activities of a company or a society as subject to control of the State. Such control in terms of the provisions of the Act are meant to ensure proper functioning of the society and the State or statutory authorities would have nothing to do with its day-to-day functions." 18. Such control in terms of the provisions of the Act are meant to ensure proper functioning of the society and the State or statutory authorities would have nothing to do with its day-to-day functions." 18. We have, on facts, found that the Co-operative Societies, with which we are concerned in these appeals, will not fall within the expression "State" or "instrumentalities of the State" within the meaning of Article 12 of the Constitution and hence not subject to all constitutional limitations as enshrined in Part III of the Constitution. We may, however, come across situations where a body or organization though not a State or instrumentality of the State, may still satisfy the definition of public authority within the meaning of Section 2(h) of the Act, an aspect which we may discuss in the later part of this Judgment. 10. As in the case of Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology, (2002) 5 SCC 111 has laid the test in regard to the instrumentality of State and Article 12 of the Constitution. 11. That Section 34 of the U.P. Cooperative Societies provide for Government nominee on the board of Committee of Management in case, there is funding by the State Government or the share money of the Government is in the said society. Section 34 of the Act reads as under:- 34. Nominees of the Government on the Committee of Management. - (1) Where the State Government has:- (a) subscribed directly to the share capital of a co-operative society under Chapter VI. (b) assisted indirectly in the formation or argumentation of the share capital of a co-operative society as provided in Chapter VI. (c) given loans or made advances to a co-operative society or guaranteed the repayment of principal and payment of the interest on debenture issued by a co-operative society or guaranteed the repayment of principal and payment of interest on loans or advances to a co-operative society. The State Government shall have the right to nominate on the Committee of Management of such society not more than two persons one of whom shall be a Government servant, so, however, that the Government servant shall not vote at an election of an office bearer of the society: Provided that where the society is engaged in production of sugar:- (i) the share capital subscribed to by the State Government is not less than one crore rupees. (ii) the share of the State Government in the share capital of the society exceeds fifty per cent of the total share capital of the society. (iii) the State Government has given loans or made advances to the society or guaranteed the repayment of principal or payment of interest on debentures issued by the society or guaranteed the repayment of principal and interest on loans and advances 34. Nominees of the Government on the Committee of Management:- (1) Where the State Government has:- (a) subscribed directly to the share capital of a co-operative society under Chapter VI. (b) assisted indirectly in the formation or argumentation of the share capital of a co-operative society as provided in Chapter VI. (c) given loans or made advances to a co-operative society or guaranteed the repayment of principal and payment of the interest on debenture issued by a co-operative society or guaranteed the repayment of principal and payment of interest on loans or advances to a co-operative society. The State Government shall have the right to nominate on the Committee of Management of such society not more than two persons one of whom shall be a Government servant, so, however, that the Government servant shall not vote at an election of an office bearer of the society: Provided that where the society is engaged in production of sugar:- (i) the share capital subscribed to by the State Government is not less than one crore rupees. (ii) the share of the State Government in the share capital of the society exceeds fifty per cent of the total share capital of the society. (iii) the State Government has given loans or made advances to the society or guaranteed the repayment of principal or payment of interest on debentures issued by the society or guaranteed the repayment of principal and interest on loans and advances 34. Nominees of the Government on the Committee of Management. (1) Where the State Government has - to the societto the society and the amount exceeds fifty per cent in the aggregate of the total amount so borrowed by the society. Nominees of the Government on the Committee of Management. (1) Where the State Government has - to the societto the society and the amount exceeds fifty per cent in the aggregate of the total amount so borrowed by the society. The State Government shall also have the right to nominate the Chairman of the Committee of Management, who shall be a Government servant, of such societies and their apex society, namely, the Uttar Pradesh Co-operative Sugar Factories Federation Ltd. Provided further that in the case of a Central Co-operative Bank or the Uttar Pradesh Co-operative Bank the State Government shall nominate not more than one person who shall be a Government servant in the Committee of Management thereof : Provided also that on the Committee of Management of a Primary Agricultural Co-operative Credit Society, there shall be no nominee of the State Government. (2) A person nominated under sub-section (1) shall hold office during the pleasure of the State Government. (3) The right of nomination vested in the State Government under this section may be delegated by it to any authority specified by it in that behalf. Explanation - For the purpose of this section any Guarantee given by the Central Government on the recommendation of the State Government shall be deemed to be a guarantee given by the State Government. 12. In the State of U.P. we have three tier system of cooperative societies i.e. primary level, central level and the apex level societies. In the present case, the society in question is a Primary Agricultural Cooperative Credit Society (PACCS) which does not have any share money of the Government nor has any nominee of the Government on its board. 13. In view of the judgments of Apex Court in case of Satrughan Nishad (supra), S.S. Rana (supra), Thalappalam Ser. Coop. In the present case, the society in question is a Primary Agricultural Cooperative Credit Society (PACCS) which does not have any share money of the Government nor has any nominee of the Government on its board. 13. In view of the judgments of Apex Court in case of Satrughan Nishad (supra), S.S. Rana (supra), Thalappalam Ser. Coop. Bank (supra) and ratio laid down in two Full Benches of this Court in case of Vijay Bihari Srivastava (supra) and Anil Kumar Pandey (supra) and perusing Section 34 of the Act, it leaves no doubt that only those societies which owe their genesis and are created by the statute or those societies which have deep and pervasive control of the management and policies by the Government or have financial control by the Government or the Government provides financial aid or funding or those societies which have Government functionaries on its Board, can safely be the society which can be regarded instrumentality of State under Article 12 of the Constitution of India. 14. In the State of U.P. nearly all the primary level societies do not have any deep and pervasive control of the Government nor there is any financial assistant of the State Government nor there is any Government functionary on its Board as envisaged under Section 34 of the Act. These types of societies are not amenable to the jurisdiction of Writ Court under Article 226 of the Constitution of India. 15. As far as the central level and apex level societies are concerned, they do attract Government funding and have deep control of the State Government. Further there are also Government nominees on the Board. Thus before considering the question regarding the maintainability of writ petition against such types of societies, the guidelines as culled out in Vijay Bihari Srivastava (supra) case is concerned, the same should be considered and further the subsequent judgments of the Apex Court in case of Satrughan Nishad (supra), S.S. Rana (supra), Thalappalam Ser. Coop. Bank (supra) is of great help. 16. During the course of argument, it was pointed out that by the 97th Constitutional amendment w.e.f. 15.2.2012, cooperative societies had been included in the Constitution. 17. By the above mentioned amendment Part IXB was inserted in the Constitution containing Article 243ZH to 243ZT. The relevant article is Article 243 ZL which deals with super-session and suspension of Board and interim management. 18. 17. By the above mentioned amendment Part IXB was inserted in the Constitution containing Article 243ZH to 243ZT. The relevant article is Article 243 ZL which deals with super-session and suspension of Board and interim management. 18. The Hon'ble Apex Court while dealing with Thalappalam Ser. Coop. Bank Ltd. and Others (supra) also had the opportunity to consider the 97th Constitutional Amendment and while dealing with constitutional provisions and cooperative autonomy, held as under:- 19. Rights of the citizens to form co-operative societies voluntarily, is now raised to the level of a fundamental right and State shall endeavour to promote their autonomous functioning. The Parliament, with a view to enhance public faith in the co-operative institutions and to insulate them to avoidable political or bureaucratic interference brought in Constitutional (97th Amendment) Act, 2011, which received the assent of the President on 12.01.2012, notified in the Gazette of India on 13.01.2012 and came into force on 15.02.2012. 20. Constitutional amendment has been effected to encourage economic activities of co-operatives which in turn help progress of rural India. Societies are expected not only to ensure autonomous and democratic functioning of co-operatives, but also accountability of the management to the members and other share stake-holders. Article 19 protects certain rights regarding freedom of speech. By virtue of above amendment under Article 19(1)(c) the words "co-operative societies" are added. Article 19(1)(c) reads as under: "19(1)(c) - All citizens shall have the right to form associations or unions or co-operative societies." Article 19(1)(c), therefore, guarantees the freedom to form an association, unions and co-operative societies. Right to form a co-operative society is, therefore, raised to the level of a fundamental right, guaranteed under the Constitution of India. Constitutional 97th Amendment Act also inserted a new Article 43B with reads as follows:- "The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co- operative societies." 21. By virtue of the above-mentioned amendment, Part IX-B was also inserted containing Articles 243ZH to 243ZT. Cooperative Societies are, however, not treated as units of self-government, like Panchayats and Municipalities. 22. Article 243(ZL) dealing with the super-session and suspension of board and interim management states that notwithstanding anything contained in any law for the time being in force, no board shall be superseded or kept under suspension for a period exceeding six months. Cooperative Societies are, however, not treated as units of self-government, like Panchayats and Municipalities. 22. Article 243(ZL) dealing with the super-session and suspension of board and interim management states that notwithstanding anything contained in any law for the time being in force, no board shall be superseded or kept under suspension for a period exceeding six months. It provided further that the Board of any such co-operative society shall not be superseded or kept under suspension where there is no government shareholding or loan or financial assistance or any guarantee by the Government. Such a constitutional restriction has been placed after recognizing the fact that there are co-operative societies with no government share holding or loan or financial assistance or any guarantee by the government. 23. Co-operative society is a state subject under Entry 32 List I Seventh Schedule to the Constitution of India. Most of the States in India enacted their own Co-operative Societies Act with a view to provide for their orderly development of the cooperative sector in the state to achieve the objects of equity, social justice and economic development, as envisaged in the Directive Principles of State Policy, enunciated in the Constitution of India. For co-operative societies working in more than one State, The Multi State Co-operative Societies Act, 1984 was enacted by the Parliament under Entry 44 List I of the Seventh Schedule of the Constitution. Co- operative society is essentially an association or an association of persons who have come together for a common purpose of economic development or for mutual help. 19. Thus in view of the above, the present petition seeking relief for quashing the order dated 24.12.218 passed by the Chairman of the Primary Agricultural Co-operative Credit Society, i.e. Sadhan Sahkari Samiti Limited, Firozabad is not maintainable. 20. This Court is flooded with petitions filed by mostly the Cadre Secretaries or employees of the Primary Level Co-operative Societies seeking relief either against the Society or challenging the resolution of Committee of Management of the Society or any other action taken by the Society against its employees or members. 21. As these primary level societies are neither the instrumentality of the State nor they are funded or aided by the State Government nor there is Government nominee in the Committee of Management as such writ petitions filed against such societies seeking relief is not maintainable. 22. 21. As these primary level societies are neither the instrumentality of the State nor they are funded or aided by the State Government nor there is Government nominee in the Committee of Management as such writ petitions filed against such societies seeking relief is not maintainable. 22. It has also come to notice of the Court that just to create the jurisdiction and to make a petition maintainable under Article 12, an application is moved before the District Cooperative Authorities or before the Registrar/Commissioner Cooperative Societies and a direction is sought in garb of this application. No such directions can be issued to the District Cooperative Authorities or to the Registrar/Commissioner Cooperative Societies in respect of these primary level cooperative societies who had moved the said authorities in order to create jurisdiction. As it is well settled in the case of Ghaziabad Zila Sahkari Bank Ltd vs. Additional Labour Commissioner and Others, 2007 (11) SCC 756 that U.P. Cooperative Societies Act, 1965 is a complete code and as such no interference is required by this Court in form of issuance of any mandamus to the concerned authorities for the remedy already provided in the Act. 23. Sri Sujeet Kumar Rai, learned Counsel for the petitioner, at this stage submits that he does not want to press the relief no. 1 and submits that a direction be issued to the respondent no. 3, Member-Secretary, District Administrative Committee, Firozabad for his joining at some other place, as his earlier joining had been put on hold by the interim order of this Court. 24. Considering the facts and circumstances of the case, as the writ petition is not maintainable in view of the judgment of Apex Court. However, it is directed that if the petitioner approaches the respondent no. 3, Member-Secretary, District Administrative Committee, Firozabad making a suitable application for his posting at some other society then the respondent no. 3 shall consider the same. 25. The petition stands disposed of.