TaxTMI 
TaxTMI 
2014 (12) TMI 1385
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....der the Division Bench judgment in W.A. No. 206/1982 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 ....
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....ondents 3 and 4 to fill the post of Senior Manager (Dairy) in 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 ....
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....Article 12 of the Constitution are not existing in any of the respondents, hence the writ was clearly 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. ....
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.... person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs 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 th....
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....here were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge. The statute is phrased in flexible terms. It 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 limitat....
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....nstruction defeats the purpose of the article itself." 19. The term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only 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 dut....
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....cation of the Societies and for making rules "regulating the qualification, remuneration, allowances and other conditions of service of the officers and servants of the different classes of societies". Rules were not framed for this purpose for a 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....
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....ve Dairy Federation Limited and Another v. Rajnesh Kumar Jamindar & Ors. (2009 (2) KLT Suppl. 1154 (SC) : (2009) 15 SCC 221), referring to Ajay Hasia (supra) and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002 (2) KLT SN 82 (C. No. 96) SC : (2002) 5 SCC 111), the following 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 prot....
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.... shall lie against a Co-operative Society when it is an authority within the meaning of Article 12. We shall hereinafter consider further judgments and law laid down by the Apex Court regarding maintainability of Writ Petition under Article 226, even if the Co-operative Society does not come under Article 12. Writ Petition has been entertained in several 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 d....
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....and technicality should not be an impediment in the granting of a relief to undo injustice. It is also now trite, as held in Air India Statutory Corporation v. United Labour Union ((1997) 9 SCC 377), that though the public law remedy under Art. 226 of the Constitution can be made use of not only in the cases of violation of fundamental rights or any other rights, 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....
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....ge dismissed some of the Writ Petitions against which Writ Appeals were filed. The Division Bench framed various issues for consideration. One of the issues framed was as to whether the Writ Petition was maintainable. The Division Bench held that the Writ Petition was maintainable. The matter was taken to the Apex Court and a contention was also raised before the Apex Court that the Writ Petition is 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, impermissibl....