K NITHIYANANTHAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE question referred for consideration of this Full Bench is as follows: "whether Section 89-A of the Tamil Nadu Co-operative Societies Act, 1983 introduced through the amendment Act 12 of 2001 conferring powers on the special Officer to admit new members in the Co-operative Society is arbitrary, unreasonable, ultra vires and unconstitutional, as it is the usurpation of judicial power?

(2.) RAISING the said question several writ petitions had been filed before the learned single Judge. After hearing the counsel for the parties, the learned single Judge on the basis of the Supreme Court judgment in kattappan's case (AIR 2000 S. C. 2378), held that the Special Officer has no power to admit the new members as it would affect the composition of the society and fundamental rights of the members and as such, the legislature would be incompetent to give statutory recognition to such a power being exercised by the Special Officer. However, the learned single Judge on the basis of the observation made by the Division Bench of this Court in w. P. Nos. 7442 of 1992 etc. dated 21. 12. 1995, expressing that the Special officer has power to enrol new members, thought it fit to refer to the larger bench by the order dated 9. 4. 2002. Accordingly, the Hon'ble Chief Justice ordered for hearing by this Full Bench.

(3.) THE main contentions urged by the counsel for the petitioners, while challenging the introduction of Section 89a of the Co-operative societies Act 1983, before this Full Bench are two-fold. They are as follows: 1) The Supreme Court in Shantharaj's case reported in AIR 1997 S. C. 2925 and Kuttappan's case reported in AIR 2000 S. C. 2378 had declared and laid down that the enrolment of new members in the Cooperative Society by the special Officers would be detrimental to the democratic process of the Society and such a power should be exercised by an Elected Committee only, as the co-operative Society is expected to function in a democratic manner. Therefore, the introduction of new Section 89a vesting the discretion on the special Officers to enrol new members in the Society would be violative of law laid down by the Supreme Court, as the Legislature cannot pass a law in an attempt to validate an unconstitutional action. 2) Article 19 (1) (c) of the Constitution guarantees the right to form a society. The right guaranteed under Article 19 (1) (c) not only includes the right to start an association, but also continue it, refuse to be a member of an Association, if he desires. It also includes the right that the composition of a society shall not be altered by law as to introduce the members other than who voluntarily join the Society, without the consent of members of the original Society. It is true that the fundamental right under article 19 (1) (c) is not an absolute right and can be reasonably restricted on the grounds enumerated in Clause (4) of Article 19 (1) (c ). These restrictions can be made by enacting law only in the interest of sovereignty and integrity of India or public order or morality. The Clause (4) of Article 19 would not apply to the present case as Section 89 (A) is not saved in any of the grounds of Clause (4) of Article 19. Thus, this unreasonableness is in violation of article 19 (1) (c) and not saved under Clause (4) of Article 19.