2005 Supreme(AP) 443

Andhra Pradesh High Court
Sadhu Varahala Babu - Appellant
Versus
Government Of A.P.,co-operation department - Respondent
Decided On : 04-29-05

Headnote:Constitution of India - Articles 12, 226 - State - writ - Maintainability - Writ against a Cooperative society being an other authority maintainable.

       Held : Whether a society or a corporation including a co-operative society is a state within the meaning of Article 12 of the Constitution of India or not is a question of fact. Some societies may be state and some may not.

       The aspect regarding the maintainability of the writ petitions can be divided into two categories - (1) writ petitions against State or its instrumentality, which falls within the definition of state under article 12 of the Constitution of India; (2) any other authority or person.

       Previously the High Courts used to refuse Certiorari or Mandamus to a body not regarded as an instrumentality of the State, which forms outside the scope of Article 12, but now it has been widened. There have been cases where Mandamus or Certiorari has been issued under Article 226 to such a body or a public utility service, or to enforce a statutory or public duty, or when it is discharging a function under some statutory provision. Thus, a writ of Mandamus or certiorari can be issued to a company, or a co-operative society, or even a private person when it discharges functions under a statute.

       Besides Article 12, the word "authority" also occurs in Article 226. There has been a question for consideration of the Courts whether the term "authority" in Article 226 ought to be interpreted in the same narrow sense as in Article 12 or more broadly than that. After several conflicting dicta, the position that emerged seems to be that Article 12 is relevant only for the purpose of Article 32 under which the Supreme Court can issue a writ only for the purposes of enforcement of fundamental rights. Article 226 is broader in scope than Article 32, as under Article 226 the High Court may issue a writ not only for enforcement of fundamental rights, but "for any other purpose" as well. There may be a body, which may not fall within the compass of Article 12, but, nevertheless, it may still be regarded as an authority under Article 226 and may thus be subjectto the writ jurisdiction of the High Court. This is made clear from the judgments of several Courts.

       The co-operative societies are established under the A. P. Co-operative societies Act, 1964. The rules regarding the functioning of the societies were framed from time to time giving statutory recognition. The bye-laws of the societies are also given statutory flavour on account of their enforcement after getting approval from the registrar of Co-operative Societies. Though the authorities of the State are not directly involving in the ordinary functioning of the societies, the authorities under the statute are regulating the functioning of the societies by fixing the staffing pattern, regulating the expenditure towards establishment charges, supervising the elections to the respective societies, conducting audit of the accounts of the societies, instructing the concerned authorities to take disciplinary actions against the erring officials and to reduce the members of the establishment in tune with the ceiling provided under the Act. In the first set of decisions mentioned in the aforementioned paragraphs, though the Courts held that a cooperative society is not a "state" or "other authority" under Article 12 of the Constitution, they did not put any embargo for treating it as "an authority" mentioned under Article 226 of the Constitution and for issuing necessary directions by invoking powers under article 226 of the Constitution. The second set of decisions are to the effect that a cooperative society would also come within the purview of Article 12 of the Constitution. Keeping in view the above trend of decisions rendered by various Courts, I wish to summarise as under: (1) Article 226 empowers the High Court to issue writs to persons or authorities to enforce ordinary rights. (2) An order can be issued against private persons by granting appropriate relief under Article 226 of the Constitution. (3) Even if a society cannot be characterized as a "state" within the meaning of Article 12, a writ would lie against it to enforce a statutory public duty. 4) In the matter of termination of service of the employees of a cooperative society, Section 47 of the A. P. Shops and Establishments Act provides a certain protection and since the said protection is based upon public policy, it will be enforced, in an appropriate case, by the High Court under Article 226 of the Constitution. (5) A writ can be maintained under article 226 if there is flagrant violation of the principles of natural justice, which are required to be followed under a statute. (6) The power of the High Court is not confined only to issue of writs to a public authority. It can also issue directions to enforce any of the fundamental rights or for any other purpose. (7) The scope of Article 226 has been widened by maintaining the writ petition against other authorities and persons also. (8) Mandamus under Article 226 may issue even to a private person or a body regarded as a government instrumentality even when it is incorporated or registered under a statute viz. , a co-operative society or a limited company.

       In the light of the above findings, I hold that even if a co-operative society is not treated as a "state" within the scope of article 12 of the Constitution, it can be treated as "an authority" for the purpose of article 226 of the Constitution.