A co-operative society registered under the Tamil Nadu Co-operative Societies Act, 1983 cannot be characterised as a 'State' within the meaning of Article 12 of the Constitution.

Ajit Prakash Shah, C.J.

1. A Five-Judge Bench of this Court in M. Thanikkachalam v. Madhuranthagam Agricultural Co-operative Society, 2000 (4) CTC 556 : 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.

2. While hearing the present Writ Appeal filed against the order of the learned single Judge dismissing the Writ Petition against a co-operative society, the Division Bench [Markandey Katju, C.J. (as he then was) and F.M.I.K.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. Madhuranthakam Agricultural Co-operative Society, 2000 (4) CTC 556: 2001 WLR 1, holding that no Writ will lie against a co-operative society is correct in law?”

Pursuant to the said order, the above question was referred to a Full Bench consisting of three Judges. The Full Bench took the view that it will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before the Bench consisting of a quorum larger than the one which pronounced the decision laying down the law, the correctness of which is doubted. Consequently, the matter has been placed before this Five-Judge Bench.

3. Before considering the question referred to the Bench, it will be useful to refer to the decision of M. Thanikkachalam's case (cited supra). It is seen from paragraph 11 of the aforesaid judgment that in view of difference of opinion, a Larger Bench was constituted to answer the question put form as to whether the decision in R. Thamilarasan, etc. v. Director of Handlooms and Textiles, Madras and Others, 1989 (1) LLJ 588, which got the seal of approval of two Full Benches of this Court required reconsideration. After considering the contentions raised by the counsel, earlier decisions of this Court, as well as the Supreme Court, the Five-Judge Bench concluded thus: (LLJ p.301)

"However, we can attempt a broad classification of cases where this Court can invoke the powers under Article 226. For Mandamus to be issued to direct a person to do some particular thing, it should appertain to his office and should be in the nature of public duty. The person or the authority on whom the statutory duty is imposed, need to be a public official or an official body (vide Praga Tools Corporation v. Immanuel, AIR 1969 SC 1306 : 1969 (1) SCC 585 : 1969 (2) LLJ 7499). If there is contravention of the principles of natural justice, which is required as per the statute and not followed, however, as pointed out by the Constitution Bench of the Supreme Court in Nagendra Nath v. Commissioner of Hills Division, AIR 1958 SC 398, the rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the Act under which they function. The question whether or not any rules of natural justice had been contravened should be decided not under any pre-conceived notions, but in the light of the statutory provisions. Where no such provision which could be said to have been contravened by a Tribunal is brought to the notice of the Court, it is no ground for interference either under Article 226 or 227 simply because the Tribunal had viewed the matter in a light which is not acceptable to the Court. A duty to act fairly can be interpreted as meaning duty to observe certain aspects of rules and natural justice. Sometimes duty to act fairly can also be sustained without providing for an oral hearing. It will depend upon the nature of the interest to be affected, the circumstances in which a power is exercised and the nature of sanctions involved therein (vide Erusian Equipment and Chemicals v. State of West Bengal, (AIR 1975 SC