MARAPPAN Vs. DY REGISTRAR OF CO OPERATIVE SOCIETIES

JUDGEMENT

(1.) A Five-Judge Bench of this Court in M. Thanikkachalam v. Madhuranthagam Agricultural Co- operative Society 2001-I-LLJ-285, has held that no writ will lie against a Co-operative Society, since it is not an instrumentality of the State within the meaning of Art.12 of the Constitution of India. While hearing Writ Appeal No. 1573 of 1998 filed against the order of learned single Judge dismissing the Writ Petition that no writ will lie against a co-operative society, the then First Bench (Markandey Katju, C. J. & F. M. Ibrahim Kalifullah, J.) doubting the Five Judge Bench decision, by order dated 9.8.2005, referred the following question to be decided by a Larger Bench. "whether the decision of the Five-Judge Bench of this Court in M. Thanikkachalam v. Madhuranthagam Agricultural Co-operative Society 2001-I-LLJ-285 holding that no writ will lie against a co-operative society is correct in law?" Pursuant to the same, the said question is referred before a Full Bench of us consisting of Three Judges.

(2.) BEFORE considering the said question and whether the decision of the Five Judge Bench of this Court in M.Thanikkachalam's case (supra) needs to be reconsidered by a Larger Bench, it is useful to refer the details mentioned by the Division Bench in the order of Reference dated 9.8.2005: "This Writ Appeal has been filed against the order of the learned single Judge dated 12.2.1989. The learned single Judge has held that since the second respondent is a co- operative society, no writ will lie against it. 2]. A Five-Judge Bench of this Court in M. Thanikkachalam's case (supra) has held that no writ will lie against a co-operative society since it is not an instrumentality of the State within the meaning of Article 12 of the Constitution. With due respect to the aforesaid Five-Judge Bench decision we are of the respectful opinion that it needs to be reconsidered. There can be two kinds of co-operative societies - one which can be regarded as an instrumentality of the State within the meaning of Art.12 of Constitution of India and the other which is not an instrumentality of the State within the scope of Art. 12 of the Constitution. In our opinion, while a writ will lie against a co- operative society falling under the first category, no writ will lie against the second category of co-operative societies. Whether a co-operative society is an instrumentality of State under Article 12 of the Constitution or not will depend upon the various tests laid down by the Supreme Court in various decisions e. g., Whether there is deep and pervasive control of the Government, extent of the shareholding of the Government, etc. In our opinion it cannot be laid down as a universal proposition that no writ can ever lie against a co- operative society. It will depend on the nature of the society and various other factors. Also the concept of instrumentality of State is not confined to entities created by the statute vide Mysore Paper Mills. Limited v. Mysore Paper Mills Officers Association (AIR 2002 SC 609): 3]. In U. P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey (AIR 1999 SC 75), the Court held that if the body is a State under Article 12 of the Constitution of India, a writ will lie against it. 4]. In Zoroastrian Co-operative Housing Society Ltd. v. District Registrar of Co-operative Societies ( (2005) 5 SCC 632 = 2005 (2) KLT SN 74 (C.No.88) SC, the Supreme Court observed as follows: "A Co-operative Society is not a State unless the tests indicated in Ajay Hasia's case (1981) 1 SCC 722 are satisfied." This observation indicates that sometimes a society can be 'State' under Art.12 of the Constitution. Moreover, in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 = 2002 (2) KLT SN 82 (C.No.96) SC, the Supreme Court observed that the tests formulated in Ajay Hasia's case are not a rigid set of principles. 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. 5]. In Gayatri De v. Mousumi Co-operative Housing Society Ltd. (( 2004) 5 SCC 19 = 2004 (2) KLT SN 58 (C.No. 68) SC (vide para 50) the Supreme Court referred to the tests to decide whether a society is a State under Art. 12 of the Constitution or not. If there is no deep and pervasive control of the Government, the society will not be 'State' under Art. 12 vide General Manager, Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad, AIR 2003 SC 4531 : Federal Bank Ltd. v. Sagar Thomas & Ors. ( 2003 (3) KLT 876 (SC) = 2003 (7) Supreme 22, G. Bassi Reddy v. International Crops Research Institute ((2003) 4 SCC 225) etc. 6]. There are various other decisions of the Supreme Court which we need not quote here. However, we are of the opinion that the decision of the Five-Judge Bench of this Court in M.Thanikkachalam's case (supra) needs to be reconsidered by a larger Bench to decide the following question:

(3.) BEFORE considering the doubt raised on the order of Reference made by the Division Bench, it is useful to refer the question raised before the Five-Judge Bench. It is seen from para 11 of the decision in M. Thanikkachalam's case (supra), in view of difference of opinion, a Larger Bench has been constituted to answer the question put forth as to, whether the decision in R. Thamilarasan and others v. Director of Handlooms and Textiles, Madras & Ors. 1989-I-LLJ-588 which got the seal of approval by two Full Benches of this Court requires reconsideration. After considering the contentions raised by all the counsel, earlier decisions of this Court as well as the Supreme Court, finally, the Five-Judge Bench has concluded thus: