Maintainability of writ of certiorari for quashing the order.

This is an application under Article 226 of the Constitution for the issue of a writ of certiorari to quash an order dated 2nd November, 1952, passed by the Deputy Registrar of Co-operative Societies, Coimbatore, who is the first respondent. The petitioners are members of the Coimbatore Motor Transport Co-operative Society for Ex-Servicemen, Limited, which was a society registered in 1947 under the Madras Co-operative Societies Act (VI of 1932). The second respondent is the Secretary of the Society. At a General Body Meeting of the Society held on 30th July, 1952, the following resolutions were passed:

1. This Meeting of the General Body decides that members placed under suspension should be paid their basic salary and no members should be dismissed from service without the previous sanction of the General Body.

2. This meeting of the General Body decides to make arrangements to collect the bus earnings daily from the Bus Conductors on completion of their duty.

3. This Meeting of the General Body decides that no direct recruitment should be made to posts of Foreman, Assistant Foreman, Store-keeper, Assistant Store-keeper, Accountant, Cashier, Driver, etc., as there are sufficient and efficient men on the rolls of this society."

As the second respondent felt doubts concerning the validity of these resolutions, he communicated them to the Deputy Registrar and on 2nd November, 1952, the latter sent the following reply.

“The following resolutions passed by the General Body held on 30-7-1952 are irregular for the reasons noted against each and no action should therefore be taken to implement them.

1. Item No.7, Resolution No.2: Under By-law 23(b) of the Society the Secretary is competent to suspend an employee (member in the case of Coimbatore Motor Transport Co-operative Society) with the approval of the Board of Directors. Further the Board is the competent authority to decide to what extent subsistence allowance should be given to an employee who is under suspension. The interference of the General Body with the acts of the Board in respect of matters delegated to it is irregular as per by-law 32. Hence the resolutions passed by the General Body in this connection is irregular.

2. Item No.7, Resolution No.3: The Secretary is empowered to attend to the day-to-day affairs of the Society under by-law 23(b) subject to the control of the President. The interference of the General Body in these matters is irregular.

3. Item No.7, Resolution No.4: Under By-law No.23(b) the Secretary is empowered to appoint the members of the establishment. The interference of the General Body is against this by-law and is therefore irregular.”

The present application has been filed for the issue of a writ of certiorari to quash this order on the ground that it is unconstitutional interference with the fundamental right of the petitioners to form associations which is guaranteed under Article 19 (1)(c). The respondents raise a preliminary objection that the order in question is not the proceeding of any judicial or quasi-judicial tribunal and is, therefore not one liable to be quashed by a writ of certiorari:

“Certiorari lies only in respect of judicial, as distinguished from administrative acts. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench Division exercised in the writ,” (Vide “Halsbury’s Laws of England”, Second Edition, Vol. 9, p. 855, para 1449,)

and the decision of the Supreme Court in Province of Bombay v. Khushaldas S. Advani1. The question is whether the order dated 2nd November, 1952, is a judicial or a quasi-judicial order.

It is necessary to refer to the scheme of the Madras Co-operative Societies Act to ascertain the true character of the order which is now impugned. The functions which the Registrar is empowered to discharge with refere