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TMI Blog2014 (12) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... 982 and the decision reported in Bhaskaran & others v. Addl. Secretary & others reported in (1987 (2) KLT 903 (F.B.)) declaring that Co-operative Societies are not amenable to writ jurisdiction do not appear to be correct. In the reference order itself they have referred to decision of the Supreme Court in S.M.V.S.J.M.S. Trust v. V.R. Rudani reported in (AIR 1989 SC 1607) and later decision of this Court in Secretary, Cannanore District Muslim Educational Association v. State of Kerala reported in (2010 (2) KLT 725 (SC) : ILR 2010 (2) Ker. 753). There is yet another Full Bench decision in John v. Liquidator reported in (2006 (1) KLT 11 (F.B.)) holding the position that writ is not maintainable against a Co-operative Society. Besides the contrary position declared by the Supreme Court cited by the Division Bench in the reference order, we notice in the decision in Sumangalam Co-operative Housing Society Ltd. v. Suo Motu High Court of Gujarat ( (2007) 2 SCC 301) the Supreme Court proceeded to examine the matter on merit assuming that writ is maintainable against a society. Above all, we notice that there has been an amendment by Act 7 of 2010 amending S. 9 and simultaneously introduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Thiruvananthapuram Regional Co-operative Milk Producers Union permanent by a permanent appointee having the qualification prescribed by Ext. P3. ii) issue a writ of mandamus or any other writ or direction to respondents 3 and 4 to appoint the 2nd petitioner to the post of Senior Manager (Dairy) in the Thiruvananthapuram Regional Co-operative Milk Producers Union. iii) issue a writ of mandamus or any writ order or direction to the respondents 3 and 4 to consider me name of the 2nd petitioner to be permanently appointed to the post of Senior Manager (Dairy) in Thiruvananthapuram Regional Co-operative Milk Producers Union. iv) Issue a writ of mandamus or any other writ, order or direction respondents 3 and 4 to consider Exhibit P4 in accordance with law." 3. The following judgments were cited before the Division Bench at the time of hearing the matter. i) P. Bhaskaran & Others v. Addl. Secretary & Ors. (1987 (2) KLT 903 (F.B.)). ii) Division Bench judgment on 06.11.1986 in W.A. No. 205/1982. In both the aforesaid Division Bench judgments, a view was taken that the Writ Petition was not maintainable against the 2nd respondent. The Division Bench opined that the said r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not maintainable. 5. Learned counsel for the parties have relied upon various judgments of this Court and Apex Court which shall be referred to while considering the issue. The learned Government Pleader has submitted that the State is also providing finance to respondents 2 to 4 and it cannot be said that no financial assistance is provided by the State to this society. 6. From the submissions which have been made before us, the pleadings on record and the order of reference, following are the issues which arise for consideration before the Larger Bench. i) Whether a Writ Petition under Article 226 of the Constitution of India is maintainable against Co-operative Societies registered under the Kerala Co-operative Societies Act, 1969? ii) Whether the Full Bench judgments of this Court in Bhaskaran (supra) as well as John (supra) lay down the correct law? iii) Whether, in the facts of the present case and on the basis of the pleadings made in the Writ Petition, the Writ Petition was entertainable under Article 226 of the Constitution of India? 7. All these three questions, being inter-related, are being taken together. Whether a Writ Petition can be filed against a Co-oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose." 9. Judgment of the Apex Court in V.R. Rudani (supra) has been referred to in the reference order and relied by the learned counsel for the parties. The Apex Court, in the said case, had occasion to consider the issue as to whether writ of mandamus can be issued against an institution run by a private trust affiliated to Gujarat University. The Apex Court, while considering the power of High Court to issue writ under Article 226, has laid down the following in paragraphs 14, 15, 19, 20 and 21. "14. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants-trust was managing unaffiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to 'have regard to' it. So the previous law as to who are - and who are not - public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing." (See - The Closing Chapter - by Rt. Hon. Lord Denning p. 122). 16. There, however the prerogative writ of mandamus confined only to public authorities to compel performance of public duty. The 'public authority' for them means every body which is created by statute -- and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all 'public authorities'. But there is no such limitation for our High Courts to issue the writ 'in the nature of mandamus'. Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "Any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. 20. In Praga Tools Corporation v. Shri C.A. Manual (1969 KLT SN 9 (C. No. 17) SC : (1969) 3 SCR 773 : AIR 1969 SC 1306), this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at p. 778) (of 1969-3 SCR) : (At pp. 1309-10 of AIR): "It is, however, not necessary that the person or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long time till Chapter XV, with Rules 182 to 200, came into force with effect from 1st January, 1974. On that date, it is said there were 4502 Co-operative Societies and thousands of employees in service in these societies. While the new rules, classified the societies, and prescribed the qualifications for appointment to several categories of service in the Societies, a saving clause was inserted in Rule 200 as follows: "Nothing in these Rules or any rules made thereunder shall operate to debar from enjoyment of any person or employee of any right or privilege of emoluments to which he is entitled by the term of any contract or agreement or conditions of service subsisting between such person and a Co-operative Society on the date on which these Rules shall come into force. Nothing in these Rules shall be interpreted as disqualification for promotion to a higher post and benefits conferred by these rules to the existing employees of any Co-operative Society." In the above context, the Full Bench proceeded to consider Article 12 of the Constitution. In paragraphs 27, 28, 29 and 30, the following was laid down by the Full Bench. "27. The distinguishing features to identify an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing was laid down in paragraphs 26 and 27. "26. This Court referred to Ajay Hasia wherein the tests gathered from the decision of this Court in Ramana Dayaram Shetty were stated in the following terms: (Pradeep Kumar Biswas case, SCC pp. 130-31, para 27) "(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. (Ramana Dayaram Shetty case, SCC p. 507, para 14) (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. (SCC p. 508, para 15) (3) It may also be a relevant factor... whether the corporation enjoys monopoly status which is State-conferred or State protected. (SCC p. 508, para 15) (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15) (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... everal other circumstances and facts. Hence the Full Bench judgment cannot be read as holding that Writ Petition will lie only against Co-operative Society which is State or authority within the meaning of Article 12. Upto that extent, we approve the law laid down by the decision in Bhaskaran (supra). 13. In the 2nd Full Bench judgment in John (supra), the Writ Petition was filed by an individual seeking a direction to a Co-operative Society to return the title deeds of the properties mortgaged by the petitioners to obtain housing loans. The question that arose for consideration before the Full Bench was, whether the Writ Petition was maintainable or not. The Full Bench, in the above context, proceeded to examine the ambit and scope of Article 226. The Full Bench laid down the following in paragraphs 8 and 9. "8. Article 226 does not admit any of the limitation on the powers of the High Court to exercise the jurisdiction vested in that article. It is now trite that the writ proceeding is a public law remedy and it can be exercised when a body or authority is exercising its power in discharge of a public duty resulting in infringement of the right of another. Exercise of this ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights, but also "for any other purpose" as well. 9. Even though it is different for determining the dividing line between the public law domain and the private law field, the question posed must be decided in each case with reference to a particular action, the activity in which the State or the instrumentality of the State is engaged while performing the action complained of, the public law or the private law character of the question and a host of other relevant circumstances, as held by the Apex Court in Air India Statutory Corporation's case. Thus what is material is the nature of the duty placed on the authority concerned." It is also noticed by the Full Bench that the Apex Court in U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey ((1999) 1 SCC 741) has held that when the service rules of the employees of Co-operative Societies are governed by the statutory provisions, the writ petition shall lie. In U.P. State Co-operative Land Development Bank Ltd (supra), the Supreme Court laid down the ratio in Paragraph 11. "11. The appellant though a cooperative society registered under the U.P. Co-operative Societies Act, 1965 (for short "the Societies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not maintainable against a Co-operative Society. Answering to the said question, following was laid down in paragraph 60 of the judgment. "60. Although we do not intend to express any opinion as to whether the co-operative society is a "State" within the meaning of Article 12 of the Constitution of India but it is beyond any cavil of doubt that the Writ Petition will be maintainable when the action of the co-operative society is violative of mandatory statutory provisions. In this case except the nodal centre functions and supervision of the co-operative society, the State has no administrative control over its day-to-day affairs. The State has not created any post nor could it do so on its own. The State has not borne any part of the financial burden. It was, therefore, impermissible for the State to direct regularisation of the services of the employees of the co-operative societies. Suchan order cannot be upheld also on the ground that the employees allegedly served the co-operative societies for a long time". Apex Court reiterated that a Writ Petition against a Co-operative Society is maintainable if the action of the Co-operative Society is violative of statutory provisions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the above questions are as follows: i) The Writ Petitions against Co-operative Societies are maintainable in certain circumstances. When the action complained in the Writ Petition is of any statutory violation on the part of the Co-operative Society, a Writ Petition will lie. The action of the Co-operative Society, if falls in a public domain or breach of the public duty is complained of, writ may also lie. However, in the absence of breach of any statutory duty or public duty, a Writ Petition cannot be entertained against a Co-operative Society. ii) The judgment of the Full Bench in Bhaskaran (supra) confines to only consideration of a Co-operative Society under Article 12. In regard to Co-operative Society which does not fall under Article 12, writ cannot be maintainable against the Co-operative Society on that basis. However, as we have already observed by considering issue No. (i), Writ Petition may be maintainable against Co-operative Society in the circumstances mentioned therein. Thus the ratio of the judgment in Bhaskaran (supra) is approved only to above extent. iii) The Full Bench judgment in John (supra) lays down the correct law and we approve the said judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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