Only a Five Judge Bench can decide whether judgment of earlier Five Judge Bench requires reconsideration.

(Writ Appeal filed under Clause 15 of the Letters of Patent against the order of the learned Judge Mr. Justice V.S. Sirpurkar, dated 12.02.1998 made in Writ Petition No.1245 of 1989.)

P. Sathasivam, J.

A Five Judge Bench of this Court in M. Thanikkachalam vs. Madhuranthagam Agricultural Co-operative Society (2001 WLR 1 : 2001 (1) 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 Article 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.K.,J.) doubting the Five Judge Bench decision, by order dated 09.08.2005, 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. Madhuranthakam Agricultural Co-operative Society (2001 WLR 1) 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 09.08.2005.

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 V. Madhuranthagam Agricultural Co-operative Society (2001 WLR 1) 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. 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 Art.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 Cooperative Land Development Bank Ltd. V. Chandra Bhan Dubey, ((1999) 1 SCC 741), the Supreme Court held that if the body is a State under Art. 12 of the Constitution of India, a writ will lie against it.

4. In Zoroastrian Cooperative Housing Society Ltd. V. District Registrar of Cooperative Societies, (2005) 5 SCC 632) 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) case are satisfied"

This observation indicates that sometimes a society can be 'State' under Article 12 of the Constitution. Moreover, in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 SCC 111 the Supreme Court observed