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C.V. Subrahmanyam Sastry and ors. Vs. Joint Registrar of Co-operative Societies, State of Andhra Pradesh, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 688 of 1963
Reported inAIR1965AP69
ActsConstitution of India - Article 226; Quasi-judicial Act; Madras Co-operative Societies Act, 1932 - Sections 38, 43 and 43(1)
AppellantC.V. Subrahmanyam Sastry and ors.
RespondentJoint Registrar of Co-operative Societies, State of Andhra Pradesh, Hyderabad and ors.
Appellant AdvocateM.B. Rama Sarma and ;P. Satyanarayana, Advs.
Respondent AdvocateS. Ramachandra Reddy, Govt. Pleader
trusts and societies - supersession - article 226 of constitution of india, quasi-judicial act, sections 38, 43 and 43 (1) of madras co-operative societies act, 1932 - supersession of board of directors by registrar on allegation of mismanagement - registrar authorized to supersede any society - certain charges fairly established - nothing to prove irregularities in procedures adopted - no certiorari can be issued for quashing registrar's order who is vested with quasi-judicial powers - held, order of registrar to supersede of board of directors justified. - - as the registrar was satisfied that the working of the bank is not proper, the board of directors were superseded. rama sarma, the learned counsel for the petitioners, is that the order is of a quasi-judicial nature and that.....order(1) the ongole co-operative bank ltd., is one of the oldest banks in the guntur district working under the madras co-operative societies act, hereinafter called the act. it seems to have a membership of about 900 with a working capital of about 61/2 lakhs. the bank has also a paid secretary who is of the grade of the co-operative sub register. the financing bank for the said co-operative bank is the guntur district co-operative central bank ltd., tenali. according to the bye-laws of the bank the term of the office bearers is three years. the present board of directors were elected and started functioning from 1-2-1960. (2) it is also alleged that due to some political pressures the registrar of the co-operative societies issued a notice under section 43 (1) and (3) of the act on.....

(1) The Ongole Co-operative Bank Ltd., is one of the oldest Banks in the Guntur District working under the Madras Co-operative Societies Act, hereinafter called the Act. It seems to have a membership of about 900 with a working capital of about 61/2 lakhs. The Bank has also a paid Secretary who is of the grade of the Co-operative Sub Register. The financing Bank for the said Co-operative Bank is the Guntur District Co-operative Central Bank Ltd., Tenali. According to the bye-laws of the Bank the term of the office bearers is three years. The present Board of Directors were elected and started functioning from 1-2-1960.

(2) It is also alleged that due to some political pressures the Registrar of the Co-operative Societies issued a notice under Section 43 (1) and (3) of the Act on 6-2-1963, on the ground that the Bank is not working satisfactory and is also mismanaged. The said notice was served on the President of the Bank on 12-12-1963 calling on the Board of Directors to submit their explanation on or before 25-2-1963. The Board of Directors thereafter submitted their explanation. The Registrar through his order dated 25-6-1963 superseded the Board. In this petition under Art. 226 of the Constitution it is this order of supersession of the Board of Directors which is challenged.

(3) It is alleged that the order of supersession is illegal, unjust and suffers from an error apparent on the fact of the record. There was no data available under Section 38 of the Act to warrant supersession under Section 43. It is only when the working of the Bank was found unsatisfactory financially that the supersession order can be made. There were no irregularities committed by the Bank to warrant the supersession. The order of the Registrar therefore is without jurisdiction.

(4) The respondents in their counter denied the allegation that the order of supersession was made under any political or other influence. As the Registrar was satisfied that the working of the Bank is not proper, the Board of Directors were superseded. There was enough material to warrant the conclusion to which the Registrar had reached. There were irregularities of grave nature committed by the Board of Directors. There is no defect of jurisdiction or any error apparent on the face of the record, which would call for the interference by the High Court under Art. 226 of the Constitution.

(5) The principal contention of Mr. M. B. Rama Sarma, the learned counsel for the petitioners, is that the order is of a quasi-judicial nature and that therefore this Court is competent to interfere when it is satisfied that the Registrar acted in violation of Section 43 of the Act. It is however urged on behalf of the respondents that the Registrar while exercising the powers vested in him under Section 43 of the Act neither acts judicially nor is he under any duty to act judicially. It is purely an administrative order and therefore this Court is not entitled to interfere. In order to appreciate these contention it is necessary to read Section 43 of the Act, which in so far as it is relevant for my purpose reads as follows :

'Section 43 (1). If, in the opinion of the Registrar, the Committee of any register Society is not functioning properly, he may, after giving an opportunity to the Committee to state its objections. If any, by order in writing, dissolve the Committee and appoint a suitable person or persons to manage the affairs of the Society for a specified period not exceeding two years. The period specified in such order may, at the discretion of the Registrar, be extend from time to time provided that such order shall not remain in force for more than four years in the aggregate.

(2) to (4) .....................................................

(5) Before taking any action under sub-section (1) in respect of a financing Bank or in respect of a society indebted to a financing bank, the Registrar shall consult in the former case the Madras Provincial Co-operative Bank, and in the latter case the financing Bank concerned, regarding such action.

(6) Nothing in this Section shall be deemed to affect the power of the Registrar to cancel the registration of the Society under Section 44.'

(6) Now is cannot be in doubt that in appropriate cases a writ of certiorari will issue against a Tribunal or Officer firstly having legal authority to determine questions affecting rights of subjects, secondly having the duty to act judicially, and thirdly, to determine questions affecting rights of subjects. The classic dictum of Atkin, L. J. in King v. Electricity Commissioners, (1924) 1 KB 171 at p. 205 is relevant.

'Whenever 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 these writs.'

It cannot be now in doubt that a writ of certiorari is issued when any Tribunal or officer acts in excess of its r his jurisdiction. It can also be issued when there is an error apparent on the face of the record though the Tribunal or the officer was acting within its or his jurisdiction. The first condition mentioned above does not present much difficulty because in such a case, an altogether unauthorised person purports t act in a judicial capacity. He usurps the jurisdiction which has not been conferred on him by law, and it is truism that when a Tribunal has no authority to act as such, its acts are void.

(7) It is the second and the third attributes mentioned above which present considerable difficulty in ascertaining whether a particular sought to be quashed by a certiorari is an administrative order or a judicial or quasi-judicial order. It is axiomatic that certiorari will not lie against mere administrative action which can in no sense be said to be judicial in nature or against which is called ministerial acts. Judicial acts must be distinguished from ministerial, legislative and administrative or executive acts. The distinction between the judicial and quasi-judicial acts must not also be ignored.

(8) The term 'administrative' or 'executive' is capable of bearing a wide range of meaning. Broadly speaking however this term refers to broad areas of Governmental activities in which the repositories of power may exercise every class of statutory function.

(9) I have already stated that a certiorari will go to statutory bodies which are judicial or quasi-judicial in nature and are under a duty to act judicially. It is not possible, nor do I intend, no attempt to catalogue all the contexts in which the Courts have to determine to classify the function of public authority as judicial. Many of the most difficult problems in this regard are set in these contexts and in order to solve which in every case it is of paramount importance to predict the meanings which can be attributed to the term of 'judicial'. It can be stated at once that the meaning of the term 'judicial' varies according to the purpose for which the term has to be defined. It is clear that not only between different legal contexts, but they will not infrequently vary within one individual legal context.

(10) It can be broadly stated that the more closely a statutory body resembles a Court stricto sensu the more likely is it that that body will be held to act in a judicial capacity. It must not, however, be assumed that because a body closely resembles a Court each and every one of its actions will be characterised as judicial function. But where all functions performed by the Courts cannot be characterised as judicial, the administrative or executive authorities may have to act quasi-judicially in dealing with some mattes entrusted to their jurisdiction. It is, therefore, clear that just as bodies analogous to Courts must be held to exercise non-judicial functions, so all bodies that are not analogous to Courts may be held to exercise judicial functions. It follows that the answer to the question whether a particular body is acting in a judicial capacity when performing a particular function does not necessarily depend upon the degree in which that body's general characteristics resemble those of an ordinary Court although the degree of resemblance may be a factor influencing a decision that the function in question is judicial.

(11) Attempts have been made out of a plethora of decisions, to evolve certain tests for identifying judicial functions. In this highly acrobatic part of the law, however, one can only broadly state the principle tests. It is not uncommon to find in the decision that the normal meaning of words were stretched, contorted or were made to stand upside down to suit the purpose of the user. It must, however, be acknowledged that 'the Courts have shown a remarkable dexterity in adapting their vocabulary to the requirements of particular situations.' Nevertheless what leaps to the eye is that the classification of the functions as judicial or administrative has often been taken to be nothing more than a rationalisation of a decision. When one carefully examines the important cases in this branch of law, it becomes obvious that nowhere is the pattern more intricate or more fascinating than in the law relating to judicial review of administrative orders. The words of Mahajan, J., as he then was, in Province of Bombay v. Khushaldas S. Advani, : [1950]1SCR621 in this connection are pertinent.

'In the actual application of the abstract proposition to the circumstances of different cases the exercise of jurisdiction to issue a writ of certiorari varies according to the foot of the Chancellor.'

(12) In this background if we analyse the various tests so far evolved, they fall under two broad categories : First is the character of the judgment and the other procedural attributes in making that decision. In this connection I may briefly refer to four principal tests now uniformly accepted. The first test that is applied for distinguishing judicial functions from the other functions is to find out whether the performance of the function terminates in the order that has conclusive effect. This characteristic is generally regarded as one of the essential features of judicial power and a body exercising powers which are of a mere advisory, deliberative or investigatory character or which do not have effect until confirmed by another body, will not normally be held to be acting in judicial capacity. It must, however, be remembered that merely because the orders made by an administrative body are given finality or they are exempted from judicial review, they do not thereby acquire a judicial quality if no other characteristics of judicial power are present. It follows from what has been stated above that power to make orders that are binding and conclusive is not in all cases a decisive factor.

(13) The second test can be attributed to the presence or absence of certain procedural attributes. The manner in which Courts proceed is distinguished by a number of special characteristics. It may be that a body has been endowed with many of the 'trappings of a Court' but it is not always sufficient to establish conclusively that such a body has been invested with judicial power. Presence of such trappings may however support that conclusion. Several matters connected with these procedural tests of a judicial function can be mentioned. Firstly a body that hears evidence in a dispute between parties will not normally be held to be acting in a judicial capacity, unless it has power to give a binding decision. Secondly, in administrative law many of the issues that arise between contending parties are different in character from those typically determined by Courts. And, thirdly, the rules of natural justice must be observed by a body that acts in a judicial capacity.

(14) The third test is mostly based on the characteristic of the final decision. An authority acts in a judicial capacity when after investigation and deliberation, it determines an issue conclusively by the application of the pre-existing legal rule, or any fixed rule and applies objective standards to the facts of a given situation.

(15) The fourth and the last test looks primarily to the characteristic of the final decision. An authority acts in a judicial capacity when after investigation and deliberation it performs an act or makes a decision that is binding and conclusive and imposes obligations upon and affects the rights of individuals. To be classified as judicial an act or decision had to affect the rights of the individuals. The term 'rights' is normally given a broad interpretation. The rights affected might appertain to personal liberty or status or they might be of a proprietary or fiscal or contractual nature. The rights referred to above are legal rights. They would not obviously include mere honours or precedents claimed or recognised as a matter of courtesy or usage. This list is by no means exhaustive. The term 'rights' is to be understood in a very broad sense. In this connection it must be borne in mind that if the statutory authority has power to do any act which will prejudicially affect the subject, then although there are two parties apart from the authority purporting to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. See Board of High School and Intermediate Education U. P. Allahabad v. Ghanshyam Das, : AIR1962SC1110 .

(16) In practical application of these tests we find a marked tendency to give 'judicial' a wide meaning in cases where applications are made for certiorari to quash the excess of jurisdiction than in cases where breach of the rules of natural justice is alleged. In all such cases statutory functions are normally treated as judicial unless they are purely administrative or ministerial in character , or unless they lacked in the attributes of a final determination, or unless they entailed the exercise of a wider policy discretion.

(17) After having formulated the basic principles which distinguish judicial functions from those of the administrative or executive, it is necessary to bear in mind the distinction between quasi-judicial proceeding and that of a judicial proceeding. A quasi-judicial proceeding has to be distinguished on the one hand from a judicial proceeding , and on the other, from an administrative and ministerial proceeding . I have already stated the essential characteristics of judicial function. The real distinction between a Tribunal and a Court cannot also be lost sight of. It is not necessary for my purpose to point out in this case that distinction. The distinction between judicial and quasi-judicial functions has been expressed by Lopes L. J. in Royal Aquarium and Summer and Winter Garden Society v. Parkinson, (1892) 1 QB 431 at p. 452 :

'The word 'judicial' has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in Court, or to administrative duties which need not be performed in Court , but in respect of which it is necessary to bring to bear a judicial mind ...................... that is, a mind to determine what is fair and just in respect of the matters under consideration . Justices, for instance, act judicially when administering the law in Court, and they also act judicially when determining in their private room what is right and fair in some administrative matter brought before them, as, for instance, levying a rate.'

Dealing with the distinction between a quasi-judicial order and an administrative or ministerial order May, C. J. in Reg. (John M'Evoy) v. Dublin Corporation, (1878) 2 LR Ir 371 at p. 376 observed as follows :

'It has been contended in this case that no certiorari can issue to remove the borough rate, and this point must be first considered. It is established that the writ of certiorari , does not lie to remove an order merely ministerial such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term 'judicial' does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances, and imposing liability or affecting the rights of others. And if there be a body empowered by law to inquire into facts, make estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequences would be judicial acts.'

This definition of May, C. J. , was approved by Lord Atkinson in Frome United Breweries Co. v. Bath Justice, 1926 AC 586 at p. 602 as one of the best definitions of judicial act as distinguished from an administrative act, which in turn was followed in several other cases. It will be seen that what May, C. J. , emphasises is that in order to constitute an order as a quasi-judicial order the determination must affect the rights and liabilities of subjects, which is arrived at after consideration of facts and circumstances by a competent authority although such authority may not be a Court in the regular sense of the term. I have already pointed out that these element however do not conclusively point to a quasi-judicial .d/ as distinguished from an administrative decision. Although the features mentioned by May, C. J. , and followed in several other cases are essential characteristics of a quasi-judicial decision they do not constitute the exclusive features of a quasi-judicial decision inasmuch as an administrative decision also very often possesses these characteristics. Following (1924) 1 KB 171 to which reference has already been made by me above Scrutton LJ in King v. London County Council, (1931) 2 KB 215 at p. 233 observed as follows :

'It is not necessary that the Tribunal should be a Court in the sense in which this Court is a Court : it is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition ; and it is not necessary to be strictly a Court. If it is a Tribunal which has to decide rights after hearing evidence and opposition, it is subject to the writ of certiorari.'

In the same case Slesser, L. J. , analysed the conditions laid down by Atkin, L. J. , and approved the same. It will thus be observed that Atkin, L. J. , mentions not only the features of a determination by a competent authority affecting the rights and liabilities of a subject, but also 'the duty to act judicially'. Under the analysis of Slesser, L. J. , also of the conditions as laid down by Atkin, L. J. , 'the duty to act judicially' is one of these conditions. Scrutton L. J. must be taken to have approved of the same line of approach. What is the distinction between a judicial power and power in the exercise of which there is a duty to act judicially? In this connection it is profitable to refer to a decision in Rola Co. , (Australia) Pty. Ltd. v. The Commonwealth, 69 CLR 185 Rich, J. , said at page 203 :

' ................................ it is important to remember that judicial power, and power in the exercise of which there is a duty to act judicially, are two different things. The former is a special case of the latter. If a person is invested with power, not to create new legal rights or to impose new legal duties or liabilities, but to determine, as between disputants, whether one of them possesses, as against the other, some already existing legal right to which he claims to be entitled, or is subject to some already existing legal liability to the other which the other is claiming against him, then, not only when exercising the power, is he required, amongst other things to act judicially, but the power itself is judicial power. On the other hand, if he has no authority to determine the already existing legal rights or liabilities of persons, but is empowered to impose on them new legal duties or liabilities from which they were previously free, or to alter or abrogate legal rights to which they were previously entitled, his power is not judicial, although in exercising it he may be, and commonly is, subject to a legal duty to act judicially ....................'

(18) I must also see what exactly is meant by 'the duty to act judicially'. The difference between judicial power and the power in the exercise of which there is a duty to act judicially has been discussed in a number of cases amongst others, Errington v. Minister of Health, (1935) 1 KB 249 and Robins and Son Ltd. v. Minister of Health, (1939) 1 KB 520 at p. 533 and : [1950]1SCR621 . Till recently an idea was prevalent that this duty was to be defined exclusively in procedural terms. A body was under a duty to act judicially only if it was bound by express statute to decide on evidence between a proposal and an opposition. In : [1950]1SCR621 the Supreme Court had laid down that a decision may be quasi-judicial only if the obligation to act judicially is laid down in the statute which has established the authority whose decision is in question. It is when the law under which the authority is making a decision itself required a 'judicial approach' , that the decision will be quasi-judicial. To the same effect is the decision in : AIR1962SC1110 .

(19) In Anglo American Direct Tea Trading Co. Ltd. v. Their Workmen, AIR 1963 SC 874, Gajendragadkar, J., who spoke for the Bench, however, observed :

'The question whether an act is a judicial or a quasi-judicial one, or a purely executive act depends on the terms of the particular status and on the nature, scope and effect of the particular powers in exercise of which they may be done. Where an authority is required to act judicially either by the express provision of the statute under which it acts, or by necessary implication of the said statute, the decision of such an authority generally amounts to quasi-judicial decision. Where however the executive or administrative bodies are not required to act judicially and are competent to deal with the issues referred to them administratively, their conclusions cannot be treated as quasi-judicial conclusions.'

To the same effect is the decision in Radeshyam v. State of M. P. , : [1959]1SCR1440 , where Subba Rao, J. , observed :

'The duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inexorable rule of guidance.'

(20) In Nakkuda Ali v. M. F. de. D. Jayaratne, 1951 AC 66 at p. 75 the Judicial Committee of the Privy Council laid down that the only relevant criterion was the nature of the process by which the decision was to be reached. 'When it is a judicial process or a process analogous to the judicial, certiorari can be granted' observed their Lordships. Any view that judicial duties arose only when explicit provision had been made for an authority to determine an issue resembling a lis inter partes cannot be said to be wholly true. Duty to act judicially may thus arise by implication from the effect of the exercise of a power upon the rights of individuals, despite the absence of any express duty to follow a procedure analogous to the judicial. Cases also are not wanting where certiorari was issued to quash orders made in excess of authority despite the fact that the body concerned was under no express or implied duty to afford a hearing to the contending parties. It is thus clear that the duty to act judicially may exist in situations other than those in which there is express statutory provision for the determination of an issue analogous to a lis inter partes. In this connection it is profitable to refer to R. v. Manchester Legal Aid Committee, Ex Parte R. A. Brand and Co. Ltd., (1952) 2 QB 413 at pp. 428 and 429. It was observed that 'the duty to act judicially may arise in widely different circumstances which it would be impossible, and, indeed, inadvisable, to attempt to define exhaustively.' Their Lordships went on to observed that the Legal Aid Committee must act 'judicially not judiciously'. If on the other hand, an administrative body in arriving at its decision had at no stage any form of lis before it, and throughout had to consider the question from this point of view of policy and expediency, it could not be said that it was at any stage under a duty to act judicially.

(21) What follows from this discussion is that a Court can partition the functions of the quasi-judicial authority into separate compartments and hold that it is under a duty to act judicially only at a certain stage of its functions and even in such a case writ will issue to quash an order if the decision is in excess of jurisdiction committed at a non-judicial phase of its functions. It acts judicially if it determines questions in relation to the rights of individuals or its decision affects the interests of individuals and in which a 'policy' element is absent or is relatively small. This is more so in cases where an express or implied duty is cast to hear the parties likely to be affected by its orders.

(22) It is in this background of somewhat detailed discussion that I have to consider whether the Registrar of Co-operative Societies while exercising the powers vested in him under Section 43 of the Act is under a duty to act judicially. It is now clear that the question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular relevant statute with the assistance of general principles discussed above. Viewed in that light, Section 43 of the Act prominently brings out two stages; firstly, if in the opinion of the Registrar the Committee of any registered society is not functioning properly, and secondly he may give an order in writing to dissolve the Committee after giving an opportunity to the Committee to state its objections, if any. It is also necessary under that section for the Registrar to consult the Central Co-operative Bank to which the petitioners Bank with which I am concerned is affiliated.

The question naturally is : Do these features constitute the decision of the Registrar a quasi-judicial decision? In case it is not a quasi-judicial function at all the stages, at what stage it could be said that the Registrar has a duty to act judicially? Applying the tests and the principles discussed above it can be fairly stated that the ultimate decision the Registrar reaches is purely subjective. The words 'in the opinion' clearly indicate that it is his subjective satisfaction which is contemplated by the section. The Registrar while acting under Section 43 does not, in my opinion, act as a judge. He is not expected to hole a judicial proceeding. What he has to do is to ascertain certain facts which satisfy him or entitle him to form the opinion that the society is not functioning properly. In the process of satisfying himself he is not bound to treat such a authority as though it were a trial. He can obtain information in any way he thinks best. Whether the Registrar is satisfied or not is a matter purely left to him. Assuming always of course that he acts bona fide he is the sole judge of the material which persuaded him to form an opinion that a given society is not functioning property. The matter is peculiarly left to be decided by the Registrar. No objective test is that regard is possible.

In making his decision he may obviously be guided by his own views as to whether there is enough material to reach the conclusion to which he has reached. In exercising his discretion he cannot be confined to any particular course or form of enquiry of any standard of proof or evidence. He may have and is entitled to have present in his mind his own views as well as material acquired in a purely executive capacity such as report under Section 38 or in any other manner, or even opinions obtained from sources within his official sphere. The right of the Registrar to be satisfied is not challenged. What is argued is that the Registrar can only be satisfied if at the time of the order he has before him report which satisfies all the requirements of Section 38. It is submitted that this report alone would entitle him to form an opinion. It is argued that there is no such report before the Registrar, but rather a report not fulfilling the requirements of Section 38. This contention in my opinion is based on certain fundamental misconception as to the purpose and effect of both Section 38 and Section 43. Here I may read Section 38 :

'38 (1) . The Registrar may of his own motion, and shall on the request of the Collector, or on the application of a majority of the committee or of not less than one-third of the members, hold an enquiry, or direct some person authorised by him by order in writing in this behalf to hold an inquiry into the constitution, working and financial condition of a registered society.'

Sub-section (2) is not of materiality inasmuch as the Registrar or the person authorised by him under sub-section (1) is conferred with statutory powers in that behalf. Sub-section (3) of that section however is of relevance. It states :

'(3) When an inquiry is made under this section, the Registrar shall communicate the result of the inquiry to the financing bank, if any, to which the society is indebted.'

It is clear from a reading of Section 38 that the enquiry contemplated by that section is essentially meant for the benefit of the financing Bank and the Registrar. That is why the enquiry may be made into the constitution, working and financial conditions of a registered society. Section 38 falls under a sub-chapter entitled 'Inquiry and Inspection' , whereas Section 43 falls under a sub-heading 'Supersession of Committee and Society'. It may be that the Registrar may form opinion under Section 43 (1) on a report submitted to him after an enquiry visualised in Section 38, but to say that in every case falling under Section 43 there ought to be a report regarding the constitution, working and financial condition of a society under Section 38 would be a curtail the sources from which the Registrar may get information on the basis of which he may form an opinion that the society is not functioning properly. No such inhibition can be read in Section 43. While it is pertinent that Section 43 does no contemplate any enquiry or report on the basis of which Registrar will form any opinion, Section 38 visualises an enquiry and a report. No restriction therefore can be put on the Registrar for the purpose of Section 43 to acquire any material which would be useful to him to form the opinion that the society is not functioning properly.

To that extent the opinion being a subjective one and having regard to the absence of any provision which directs the Registrar to hold any enquiry or prescribe any procedure in that behalf, it can be safely deduced that the Registrar can acquire material either under Section 38 or through other sources open to him. To that extent it cannot be said that the argument in that behalf by the learned counsel for the petitioners is correct. It will thus be seen that collecting the material and forming ultimately the opinion thereupon is exclusively left to the discretion of the Registrar. If the argument suggested by the learned counsel for the petitioners is accepted, it would amount to importing an objective test into a matter to which such a test is entirely inappropriate since it leaves to the Court to decide what matters are to what are not sufficient to justify a conclusion as to the proper working of the Co-operative Societies.

This is necessarily so since the question which according to the argument this Court has to propound to itself, will be, was the evidence before the Registrar such as to entitle him to form an opinion that the Society is not functioning properly and this is to substitute a test formulated in some unexplained manner and according to some unascertainable principles by the Court itself for the opinion of the Registrar to which the language of Section 43 commits the decision. It is therefore not for this Court to lay down the sources such as Section 38 from which alone the Registrar will be free to collect the material to form an opinion as to whether a given society is functioning properly although the language of S. 38 is wide enough to take in most of the things. The statute leaves it wide open for the Registrar, and it will not be proper to restrict his sources. To the extent he collects the material and ultimately forms the opinion on such material, it cannot be said that he is under any duty to act judicially.

Three essential features of Section 43, however, clearly point out that they cast a duty on the Registrar to act judicially. Firstly, before he forms a final opinion in regard to whether the society is functioning properly, he must give an opportunity to the Committee to state its objections, if any. This must necessarily mean that the Registrar would formulate the charges and send the same to the Society concerned in order that they may be provided an opportunity to explain. After having received the explanation from the society it is for the Registrar to evaluate the material and also the explanation offered by the society, and to form an opinion whether the society is functioning properly. As far as giving an opportunity to be heard is concerned, it is an essential attribute of a duty to act judicially. He cannot without providing an opportunity to the society supersede the society.

Apart from a statutory obligation it has the characteristics of a judicial nature founded on the principle that no party who is going to be affected by the decision will be punished unheard. A right of fair hearing therefore has been provided by the statute itself. The Section therefore prescribes one of the essential requirements of a duty to act judicially. Secondly, the decision arrived at by the Registrar is likely to affect the legal status of the member of the Board. As pointed out above whenever a Tribunal or an Officer in passing an order affects the rights of the parties, it can be stated in certain cases particularly when he can arrive at such a decision only after hearing the parties that he has a duty to act judicially. Thirdly, the Registrar is under a statutory obligation to consult the Bank to which the society is affiliated. That again is a feature pointing to the direction that the Registrar acts judicially.

It therefore follows that although the ultimate formation of opinion by the Registrar under Section 43 and collection of material preceding may be acts of purely an administrative or executive nature, not ordinarily subjected to judicial review, but the features pointed out above clearly indicate that the Registrar while exercising the powers vested in him under Section 43 has a duty to act judicially. My conclusion therefore is that his functions under Section 43 are of a quasi-judicial nature and he has a duty to act judicially in performing some of the functions at some stages. I am fortified in my conclusion by the following two decisions in.

a) K. Ramayya v. Madras State, : AIR1951Mad1003 .

b) G. N. Pattabhi Reddy v. Registrar of Co-operative Societies ( W. Petns. Nos. 1383 and 1384 of 1958, D/- 30-3-1960 (AP).

(23) The next question which immediately arises is whether the Registrar has acted in excess of his jurisdiction. No question is raised in that behalf. Section 43 expressly confers powers on him to supersede any society provided the requirements of Section 43 are fulfilled. He has undoubtedly acted within the four corners of his legal authority. Mr. M. B. Rama Sarma invited my attention to the several charges levelled against the Board of Directors and attempted to point out that they are not correct, or at best they are of technical nature. I am afraid that this argument cannot be accepted as such . Although I have a feeling that some of the charges on the basis of which the Registrar came to the conclusion that the society is not functioning properly are of a technical nature, and perhaps if I were left with a decision I would have found that they are not sufficient to warrant drastic action of superseding the Board of Directors, but it must be remembered that the writ of certiorari will not issue merely on the ground of the decision of the inferior Court or Tribunal being erroneous.

This Court cannot convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be passed. At the worst the Registrar may have come to an erroneous conclusion, but the conclusion is in respect of a matter which lies entirely within the jurisdiction of the Registrar to decide and it does not relate to anything collateral, an erroneous decision upon which might affect his jurisdiction. The records do not disclose any error apparent on the face of the proceedings or any irregularities in the procedure, adopted by the Registrar which go contrary to the principles of natural justice. Thus there are absolutely no grounds here which would justify this Court in issuing a writ of certiorari for removal of the order of the Registrar vested with quasi-judicial functions. I do not therefore propose to go into the details of the charges in order to find out whether they are correct or not.

I must however say that, if not all, some of the charges can be said to have been fairly established, and not seriously disputed by the petitioners. It is for the Registrar to say whether there was sufficient material to form the opinion which he formed. It is not for this Court to evaluate the material and say whether that material is adequate to form the opinion which the Registrar has formed. That is not the function of this Court. It cannot be however stated that there was absolutely no material or data before the Registrar to reach any conclusion. I am therefore satisfied that there was material on the basis of which the Registrar can form an opinion, and as he acted within his legal authority and there are no errors apparent on the face of the record, this Court would not interfere in such a case. Although it is alleged by the petitioners that on account of some political pressures being brought upon the Registrar, the opinion was ultimately formed on account of such pressures, no argument in that behalf was seriously advanced before me. Even otherwise there does not appear to be any material in support of that contention except the ipse dixit of the petitioners. In the counter that allegation has been strenuously refuted. In the absence of any material it would not be correct to attribute mala fides to the Registrar. I am therefore satisfied that the order does not suffer from any infirmity which warrants interference from this Court under Art. 226 of the Constitution.

(24) In the result this petition fails and is dismissed with costs. Advocate's fee Rs. 100/-.

JH/ VSB/ D. V. C.

(25) Petition dismissed.

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