Ashok Bhushan, Ag.CJ
This Larger Bench has been constituted to answer the reference made by a three Judge Bench vide referring order dated 09/01/2012. The Division Bench which heard the writ petition, in turn, made a reference by their order dated 18/10/2010 on which a three Judge Bench was constituted. It is useful to quote the reference order of the three Judge Bench dated 09/01/2012 which is to the following effect.
“Pursuance to reference made by a Division Bench of this Court, this case is posted before us today. We notice from the reference order that the Bench which referred the matter does not consider the Division Bench judgment in W.A.No.206/1982 and the decision reported in BHASKARAN & OTHERS Vs. ADDL.SECRETARY & OTHERS reported in 1987(2) KLT 903 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 Vs. V.R.RUDANI reported in AIR 1989 SC 1607 and later decision of this Court in SECRETARY, CANNANORE DISTRICT MUSLIM EDUCATIONAL ASSOCIATION Vs. STATE OF KERALA reported in ILR 2010(2) Kerala 753. There is yet another Full Bench decision in JOHN Vs. LIQUIDATOR reported in 2006(1) KLT 11 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. Vs. 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 Section 9 and simultaneously introducing Section 66A in the Co-operative Societies Act which gives substantial Government authority on societies. We, therefore, concur with the view taken by the Division Bench that the earlier view that writ is not maintainable against society may no longer be good law. However, since judgments rendered are by Full Bench, we feel a larger Bench should decide the matter. We, therefore, refer this matter for decision by a larger Bench. Registry will take orders from the Honourable Chief Justice and post the case.”
2. The Learned counsel for the petitioners submits that the 7th respondent has attained the age of superannuation, hence reliefs claimed in the writ petition has virtually become infructuous. He, however, submits that reference having been made to the Larger Bench to answer the issues, the issues be considered on merit. Hence we proceed to consider the submissions for the purpose of deciding the questions.
3. Before we proceed to consider the submissions made and the issues raised by the parties, it is necessary to look into the relevant facts giving rise to the writ petition. The 1st petitioner is an Association of Officers working at Thiruvananthapuram Regional Co-operative Milk Producers Union Ltd., and the 2nd petitioner was working as Senior Manager in Charge of the said Union. Petitioners' case is that the 2nd respondent is a Society registered under the Kerala Co-operative Societies Act, 1969 and governed by its own bye laws. The objectives of the Union are to carry out the activities conducive to the socio-economic development of the Milk Producers. The Apex body of the Union is the Board of Directors. It is further pleaded that rules and regulations regarding appointment, termination and other matters regarding the conditions of service of the 2nd respondent was governed by the Staff Regulations of the 2nd respondent which are annexed as Ext.P1. It is their case that even though the 2nd petitioner was eligible to be appointed in the post of Senior Manager (Dairy), respondents 3 and 4 were taking hasty steps to appoint the 7th respondent to the said post. Petitioners claim to have submitted a representation before respondents 3 and 4. In the above backdrop, the writ petition was filed for the following reliefs:
“i) issue a writ of mandamus or any other writ, order or direction to respondents 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 the 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.”
4. The following judgments were cited before the Division Bench at the time of hearing the matter.
i) P.Bhaskaran & Others Vs. Addl.secretary & others [1987(2) KLT 903]
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 ratio requires reconsideration in view of the Apex Court judgment in S.M.V.S.J.M.S.Trust V. V.R.Rudani [AIR 1989 SC 1607] as well as another judgment of the Apex Court in Secretary, Cannanore District Muslim Educational Association v. State of Kerala [ILR 2010(2) Kerala 753]. Noticing the above, the Division Bench, thus made a reference for consideration of the above two judgments of this Court. When the matter was taken by the Full Bench consisting of three Judge, it was noticed that there is another judgment by a three Judges Bench of this Court in John v. Liquidator [2006(1) KLT 11]. Hence the three Judges who constituted the Full Bench opined that the matter be heard by a larger Bench.
5. Sri.K.Jayakumar, the learned senior counsel for the petitioners, in support of the writ petition, contended that the writ petition was maintainable since it was governed by Staff Regulations Ext.P1. He further contended that the 2nd respondent Union was constituted to carry on State function and looking into the nature of functions performed by the 2nd respondent, the writ petition has to be entertained. Learned counsel submits that the appointment in the post of Senior Manager (Dairy) has to be regulated by the rules and qualification as prescribed therein since respondents 3 and 4 were proceeding to appoint the 7th respondent who was not qualified, hence the petitioner had approached this Court by filing the writ petition. Learned counsel for the petitioners further submits that in view of the 97th Constitutional amendment in the Constitution by which Article 19(1)(c), Article 43B and Part IXB have been inserted in the Constitution, the maintainability of writ jurisdiction against Co-operative Societies has substantially increased and looking into the Constitutional amendment it has to be held that the writ petition is maintainable. Sri.Anand, learned senior counsel appearing for respondents 2 to 4 contended that respondents 2 to 4 are not authorities within the meaning of Article 12 of the Constitution of India. He submitted that there is no direct control by the State or any financial assistance to such extent that it can be said to be State. He submits that the test laid down by the Apex Court for holding a body to be State under Article 12 of the Constitution are not existing in any of the respondents, hence the writ was clearly not maintainable.
6. 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.
7. 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?
8. All these three questions, being inter-related, are being taken together. Whether a writ petition can be filed against a Co-operative Society which is registered under the Kerala Co-operative Societies Act, 1969 is the main issue to be answered. Before we enter into the facts of the case and other issues, it is relevant to note that there is no pleading in the writ petition that respondents 2, 3 and 4 are State within the meaning of Article 12. A writ petition can be filed against the State or any authority which is covered within the meaning of Article 12 of the Constitution. Although the learned counsel for the petitioners has raised certain submissions that respondents 2, 3 and 4 are performing Governmental functions and certain control of the State is also there, there being no pleadings in the writ petition, or any relevant material to enter into the issue to adjudicate as to whether respondents 2 to 4 are State within the meaning of Article 12, we do not think it proper to enter into the said issue. Whether a body or authority is a State or not is a mixed question of fact which has to be examined, taking into consideration different factors including the Constitution, finance, function, control etc. For deciding the said issue, the Court has to essentially enter into various facts. There being no foundation in the writ petition, we are of the view that it is neither necessary nor desirable to enter into the said issue. Thus, there being no foundation in the writ petition, the question as to whether respondents 2 to 4 are 'authorities' within the meaning of Article 12, cannot be considered. We thus proceed on the premise that respondents 2 to 4 are not authorities within the meaning of Article 12.
9. The power of the High Court to issue certain writs under Article 226 of the Constitution of India is not confined to the traditional powers of the English Court to issue writs. Under Article 226, power has been given to the High Court to issue writ to any person or authority, including in appropriate cases, any Government, within those territories. It is useful to refer to Article 226(1) which is to the following effect.
226. Power of High Courts to issue certain writs.- (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any 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.”
10. 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 the affiliated college to which public money is paid as Government aid.Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See - The Evolving Indian Administrative Law by M. P. Jain (1983) p. 266). So are the service conditions of the academic staff.When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.
15. The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages.To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of Section 3(1)(e) of the Law Commission Act, 1965, requested the Law Commission "to review the existing remedies for the judicial control of administrative acts and commissions with a view to evolving a simpler and more effective procedure." The Law Commission made their report in March 1976 (Law Com No. 73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by Section 31 of the Supreme Court Act 1981. It combined all the former remedies into one proceeding called Judicial review. Lord Denning explains the scope of this "judicial review" :
"At one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross-examination, no discovery, and so forth. But there 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 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 writs. This is a striking departure from the English law. Under Article 226, writs can be issued to any person or authority'. It can be issued "for the enforcement of any of the fundamental rights and for any other purpose".
17. Article 226 reads :
"226. Power of High Courts to issue certain, writs (1) Notwithstanding anything in Art. 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any 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.
xxx xxx xxx xxx"
18. The scope of this article has been explained by Subba Rao, J., in Dwarkanath. v. Income Tax Officer (1965) 3 SCR 536 at pp. (540-41) : (AIR 1966 SC 81 at pp. 84-85) :
"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction 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. Imanual (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 authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsbury's Laws of England (3rd Ed. Vol. II p. 52 and onwards)."
21. Here again we may point out that mandamus cannot be denied on the ground: that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act 4th Ed. p. 540). We share. this view. The judicial control over the fast expanding maze of bodies: affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."
11. The Full Bench judgment of this Court which has been referred to in the reference order is Bhaskaran (supra) in which interpretation of Rule 200 of Co-operative Societies Rules arose for consideration. Rule 200 has been quoted in paragraph 2 of the judgment which is to the following effect.
“2. The Kerala Co-operative Societies Act (“The Act”) meant to ‘consolidate, amend and unify the laws relating to Co-operative Societies in the State of Kerala’ came into force on 12th May, 1969. S.80 of the Act provided for classification 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 R.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 R.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 Cooperative 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 authority as a State within the meaning of Art.12 of the Constitution are now well settled with the pronouncement of the Supreme Court in the Rajasthan Electricity Board case (AIR 1967 SC 1857), Sukhdev Singh’s case (AIR 1975 SC 1331) and the Air Port Authorities case (AIR 1979 SC 1628) and the later decisions. The decision of this Court in Sofhi v. FACT (1984 KLT 32) also succinctly summarises the principles deducible from the decisions of the Supreme Court. There is, we think, no necessity thus to restate the same principles.
28 On the question whether Co-operative Society is a State, the decisions of the Supreme Court in Sabhajit Tewary v. Union of India (AIR 1975 SC 1329), Kumari Regina v. St. Aloysius Higher Elementary School, (AIR 1971 SC 1920) and Valsh Degree College v. Lakshmi Narain (AIR 1976 SC 888) are very apposite.
29 The Co-operative Societies are not created by the Co-operative Societies Act and they are not statutory bodies. They are only functioning in accordance with the provisions of the Act. These institutions would have legal existence even if the Co-operative Societies Act was not in force. Moreover, the Government have no shares in the Co-operative Societies. There is no deep and pervasive State control. The management of the societies does not vest in the Government or in the representatives of the Government The management is under the effective control of a committee elected by the members of the societies. The statutory regulation or restriction in the functioning of the societies is not “an imprint of State under Art.12”.
30 We, therefore, hold that no writ will lie against a Co-operative Society governed by the Kerala Co- operative Societies Act and these writ petitions will have to be dismissed on that score."
12. There cannot be any dispute to the test which has been laid down to identify an authority as Article 12 authority. Right from Ajay Hasia v. Khalid Mujib Sehravardi [AIR 1981 SC 487], the Apex Court has repeatedly laid down the tests for identifying a body as Article 12 authority. In Madhya Pradesh State Cooperative Dairy Federation Limited and Another v. Rajnesh Kumar Jamindar and Others [(2009) 15 SCC 221], referring to Ajay Hasia (supra) and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology [(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 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 a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16)
(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.
(SCC p. 510, para 18)”
27. It was held in Pradeep Kumar Biswas: (SCC p. 134, para 40)
“40. The 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. 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.”
13. Thus the Full Bench in paragraphs 27 to 30 of Bhaskaran (supra) has noticed the test to determine as to whether a body is an authority under Article 12 or not. There cannot be any dispute to the proposition, as laid down by the Full Bench in the above paragraphs, regarding the broad tests for determining a authority under Article 12. But, as referred above, present is not a case where there is any foundation laid down that respondents 2 to 4 are 'authority' within the meaning of Article 12. In Bhaskaran (supra), the Full Bench held that the Co-operative Society did not fulfill the test of Article 12. The discussion in the judgment was confined to only one aspect that is whether the Co-operative Society was authority within the meaning of Article 12 or not. Thus, the said ratio of the Full Bench judgment has to confine only to the effect that the writ petition 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).
14. 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. Art.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 extra ordinary jurisdiction vested in the High Court is restricted by wise and clear restraints evolved through judicial decisions and therefore, ordinarily a High Court exercising the jurisdiction under Art. 226 of the Constitution will not go beyond those wholesome inhibitions except in such situations which justify a “timely judicial interdict or mandate” as held in Rohtas Industries Ltd. v. Rohtas Industries Staff Union, (1976) 2 SCC 82. The mentor of law is justice and a potent drug should be judiciously administered. Thus under Art. 226 in appropriate situations, writ can be issued, as held in Engineering Mazdoor Sabha v. Hind Cycles Ltd., AIR 1963 SC 874, even “to any person or authority”. It is not, however, necessary that the person or authority on whom the statutory duty is imposed, need be a public authority or an official. Mandamus would also lie even against a company constituted by a statute, for the purpose of fulfilling public responsibilities as held in Praga Tools Corporation v. C.A.Imanual, (1969) 1 SCC 585. The words “any person or authority” used in Art. 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 owned 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, as held in Praga Tools Corporation's case. In other words, to be enforceable by mandamus, a public duty does not necessarily have to be one imposed by statute. A mandamus can be issued even in a case of breach of duties imposed by Charter, common law, custom or even contract, because, mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found' 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 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. Cooperative Societies Act, 1965 (for short “the Societies Act”) is constituted under the Uttar Pradesh Cooperative Land Development Bank Act, 1964 (for short “the Bank Act”). It is, therefore, governed by the provisions of both these Acts and the Rules framed thereunder. Section 122 of the Societies Act prescribes constitution of an authority to control employees of cooperative societies. This section we may reproduce as under:
“122. Authority to control employees of cooperative societies.—(1) The State Government may constitute an authority or authorities, in such manner as may be prescribed, for the recruitment, training and disciplinary control of the employees of cooperative societies, or a class of cooperative societies, and may require such authority or authorities to frame regulations regarding recruitment, emoluments, terms and conditions of service including disciplinary control of such employees and, subject to the provisions contained in Section 70, settlement of disputes between an employee of a cooperative society and the society.
(2) The regulations framed under sub-section (1) shall be subject to the approval of the State Government and shall, after such approval, be published in the Gazette, and take effect from the date of such publication and shall supersede any regulations made under Section 121.”
The Full Bench held that a writ petition would lie against a Co-operative Society when the duty owned by the Co- operative Society is of a public nature or when there is infringement of any statutory rules by such a Co-operative Society. The ratio laid down by the Full Bench in the above case is fully in consonance with the judgment of the Apex Court in Rudhani (supra).
15. The Apex Court had occasion to consider the question regarding maintainability of the writ petition against a Co-operative Society in A.Umarani v. Registrar, Co-operative Societies and Others [(2004) 7 SCC 112]. The writ petition was filed in the High Court by the employees of the Co-operative Society. The learned Single Judge 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 cooperative 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 cooperative society is violative of mandatory statutory provisions. In this case except the nodal centre functions and supervision of the cooperative 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 cooperative societies. Such an order cannot be upheld also on the ground that the employees allegedly served the cooperative societies for a long time”.
The 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.
16. Now, coming to the facts of the present case, the petitioners have referred to Ext.P1 that is Staff Regulation. Staff Regulation Ext.P1 is not shown to be a statutory regulation framed in exercise of any statutory power. The Staff Regulation, being not of statutory nature, even if the submission is accepted that action of the respondent in proceeding to appoint 7th respondent was in violation of the Staff Regulation, the said violation of the non-statutory provision could not have been made the subject matter of writ proceeding.
17. In this writ petition, counter affidavit was filed by 7th respondent as well as the 2nd respondent. 2nd respondent, in the counter affidavit, has categorically pleaded that the 2nd respondent is not an authority within the meaning of Article 12. The prayers, as noted in the writ petition, relate to issue of a mandamus for appointment of 2nd petitioner. No infraction of any statutory provisions or violation of any public duty was alleged. Thus the writ petition filed by the petitioners was not maintainable. In view of aforesaid discussion, we are of the view that the judgment of the Full Bench in John (supra) lays down the correct proposition of law and has to be approved.
18. The last submission made by the learned counsel for the petitioners is that in view of the 97th constitutional amendment, the extent of maintainability of the writ petition against Co-operative Society has largely increased. He has referred to Article 19(1)(c) which includes Co-operative Society also. In Article 19(1)(c), there cannot be any issue that now all citizens have fundamental right to form Co- operative Societies. As far as Article 43B is concerned which has been inserted in Part IV of the Constitution, it is one of the directive principles of State policy which has to be implemented by the Legislature.
19. Coming to Part IXB of the Constitution which has been inserted by the 97th amendment, it contains several constitutional provisions which regulate incorporation, number and term of members, election of the members of the Board and superannuation. Obviously, any action of any Co-operative Society if it is in breach of any of the constitutional provisions, that can be made subject matter of the writ petition. Present is not a case where there is any issue pertaining to any violation of Part IXB. In view of the foregoing discussion, our answer 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.
iv) The present writ petition is not maintainable under Article 226 of the Constitution of India.
The reference is answered accordingly and the writ petition is dismissed.
(ASHOK BHUSHAN, ACTING CHIEF JUSTICE) (A.M.SHAFFIQUE, JUDGE) (A.V.RAMAKRISHNA PILLAI, JUDGE) (A.HARIPRASAD, JUDGE) (A.K.JAYASANKARAN NAMBIAR, JUDGE) jsr