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Ajmer Singh Vs. the Registrar, Co-operative Societies, Punjab, Chandigarh and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 446 of 1980
Judge
Reported inAIR1981P& H266
ActsPunjab Co-operative Societies Act, 1961 - Sections 26(B) and 26(1D); Constitution of India - Articles 12 and 226
AppellantAjmer Singh
RespondentThe Registrar, Co-operative Societies, Punjab, Chandigarh and ors.
Cases ReferredCentral Bank Ltd. v. Narayan Rath
Excerpt:
.....an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - khoji on kulwant singh's case, (1972 pun lj 399)(supra) both before the motion bench as also before us for holding a contrary view does not appear to me as at all well conceived. ..xxx we would like to observe that the judgment of the high court should not be treated as an authority for the proposition that a writ petition is maintainable against a co-operative society. 1 to 4 and 6 for this limited purpose the petitioner would appear to us as entitled to sustain his challenge to annexure p/5 alone and maintain the writ against the state as also the public and statutory functionaries like. this aspect of the case is well supported on plain principle as also on..........central bank ltd.'s case (air 1977 sc 112)(supra).'... we would have liked to go into the question for ourselves, but it is unnecessary to do so asrespondent no. 1 by his writ petition was asking for relief not really against a co-operative society but in regard to the order which was passed by the registrar, who was acting as a statutory authority in the purported exercise or powers conferred on him by the co-operative societies act. the writ petition was in that view maintainable.'10. in view of the above, we hold that only to the limited extent of the challenge to annexure p/5 as being iolative of the provision of section 26(1d) of the act the writ would be maintainable against respondents nos. 1 to 4 and 6. admittedly, however, the merits of this case involve neither any.....
Judgment:

S.S. Sandhawalia, C.J.

1. The meaningful question whether a Society registered under the Punjab Co-operative Societies Act, 1961, is amendable to the writ jurisdiction under Article 226 of the Constitution of India has been reagitated before the Full Bench.

2. In view-of the pristinely legal nature of the issue aforesaid, it is unnecessary to recount the fact in detail. Suffice it to mention that the petitioner Ajmer Singh was employed as a Filed Inspector in the Punjab State Co-operative Supply and Marketing Federation Ltd. (hereinafter called Marketed) which admittedly is registered under the Co-operative Societies Act. The Managing Director of the Marketed by his order dated the 13th of November, 1978(Annexure P. 2) dismissed the petitioner from Service and his appeal against the said order was in turn dismissed by its Administrator vide Annexure P. 5. The writ petition sought to challenge the orders of dismissal and its affirmance in appeal. At the motion stage, a preliminary objection was raised on behalf of the respondent-Marketed that no writ petition was maintainable against a Co-operative Society. On behalf of the petitioner, however, reliance was firmly placed on the D. B. judgment of Julwat Singh v. State of Punjab, 1972 Pun LJ 399. The Motion Bench apparently discerning some conflict of authority admitted the present petition for a hearing by a Full Bench.

3. Now it appears to me that within this jurisdiction there is such a long line of unbroken precedent covering the legal issue before us that it would be apparently wasteful to launch on a digression on first principles. The matter had first come up directly for decision before Tuli J., in DharamPal Soni v. State of Punjab, 1969 Serv LR 349(Punj), and after exhaustively examining the point both on principle and precedent the learned Judge concluded that a Co-operative society being a non-statutory body a writ petition against it was not maintainable.The aforesaid view was strenuously challenged in a Letter Patent appeal but was conclusively repelled by the bench in Dharam Pal Soni v. State of Punjab, (1973) 2 Serv LR 845(Punj). Subsequently Dharam Pal Soni's case (supra) has been unreservedly followed by learned single judge of this court in Krishan Lal Pahwa v. State of Haryana, 1974 SLWR 298: (1975 Lab IC 672); Dilavar Singh v. Administrator, Khanna Co-op. Marketing Society Ltd., 1974 SLWR 939(Punj) and Anup Singh v State of Punjab,1975 SLWR 27(Punj). Lastly directly covering the issue is the Division Bench judgment in P. S. Saini v. State of Punjab, C.W. P. NO. 4410 of 1979 decided on the 23rd of February, 1980, wherein it has been specifically held that Marketed being a Co-operative Society a Writ petition against it was not maintainable and the same was consequently dismissed in limine.

4. Now the reliance of Mr. Khoji on Kulwant Singh's case, (1972 Pun LJ 399)(supra) both before the Motion Bench as also before us for holding a contrary view does not appear to me as at all well conceived. A close analysis of the said division Bench judgment would plaintly indicate that the learned judge did not at all dissent from the view consistently held within this Court. Indeed therein express reference has been made to Dharam Pal Soni's case (1969 Serv LR 349) and it was distinguished specifically on the ground that the observation made therein were not applicable to the facts of the case. On an in-depth examination of the judgment, it appears to us that it is no authority whatsoever for the proposition that a writ petition would be maintainable against a Co-operative Society. Indeed it is evident that the learned Judges allowed the writ petition primarily and indeed solely on the ground that the case disclosed flagrant and blatant violation f the statutory provision. Of S. 26(B) of the Punjab Co-operative Societies Act (hereinafter called the Act). It is elementary that where the infraction of a statutory provision arises, the writ jurisdiction provides an obvious remedy therefor. We must, therefore, conclude that Kulwant Singh's case is wholly distinguishable and in no way detracts from the consistent line of precedent within this Court which stands noticed above. It called for pointed notice the Mr. Khoji, learned counsel for the petitioner, conceded before us that he could not cite any other judgment whatsoever for a contrary view.

5. However, the matter does not appears to us at resting on the judgments of this court alone. It only deserves high lighting that in Dharam Pal Soni's case (1973-2 Serv LR 345) and the other judgment of the Court reliance was heavily placed by way of analogy on the observation of the final court in Praga Tools Corporation v. C. B Imanual, AIR 1969 SC 1306 and Co-operative Central Bank Ltd. v. Addl Industrial Tribunal, Andhra Pradesh, AIR 1970 SC 245. Subsequent judgments of their Lordships seem to further buttress the aforesaid view. In Sabhajit Tewary v. Union of India, AIR 1975 SC 1329, the basic distinction of a statutory corporation created by an Act and a Society merely incorporated in accordance with the provision of the Society Registration Act was highlighted and it was held that despite the factor of an overwhelming governmental interest and control over such a society it was neverthless not an authority within the meaning of Article 12 of the Constitution and no writ was maintainable against the same.

6. What then calls for pointed notice is that a Division Bench of The Orissa High Court in Narayan Rath v. Registrar, Co-operative Societies, Orissa, ILR (1970) Cut 437, took the view that an employee of a Co-operative Society can maintain a writ petition against it for the enforcement of its service conditions. On appeal, their Lordships repelling such a view in Nayagarh Co-operative Central Bank Ltd. v. Narayan Rath, AIR 1977 SC 112 have observed as follows:-

'The High Court has dealt with the question whether a writ petition can be maintained against a co-operative society, but we are inclined to the view that the observations made by the High Court and its decision that such a writ petition is maintainable are not strictly in accordance with the decision of this Court...'

xxx

'We would like to observe that the judgment of the High Court should not be treated as an authority for the proposition that a writ petition is maintainable against a Co-operative Society. That question shall have to be decided by the High Court as and when it arises in the light of the decision of this Court.'

In view of the above, affirming the earlier judgment of this Court, we would answer the question posed at the outset in the negative to the effect that a society merely registered under the Act is not amendable to the writ jurisdiction under article 226 of the Constitution of India.

7. What perhaps deserves notice is that when faced with the afore quoted unsurmountable wall of precedent, Mr. B. S. Khoji, the learned counsel for the petitioner had ultimately to concede that he was unable to sustain his proposition that a writ petition was maintainable against a Co-operative Society. Consequently he fairly stated that he would abandon all challenge to Annexure P/2 which is the order of dismissal passed by the Managing Director of the Marketed ad in express terms stated that he claims no relief against the same.

8. However, beating a tactical retreat, Mr. Khoji the submitted that nevertheless with in the writ jurisdiction he could still maintain his challenge to Annexure P/5 as against respondents Nos. 1 to 4. It was submitted by him that now, in essence, he was only assailing the validity of the order passed by the Registrar or the Additional Registrar of the Co-operative Societies in patent infraction of the provisions of Section 26(1D) of the Act. That provision runs as under:--

'Where any committee has ceased to hold office any committee has not been constituted in accordance with the provisions of this Act and rules and bye-laws, made thereunder, the Registrar may, by an order in writing appoint Government servant as an administrator for such period as may from time to time, be specified in the order and the Administrator shall, before the expiry of the period of his appointment, arrange for the constitution of a new committee in accordance with the provisions of this Act and rules and bye-laws made thereunder.

xxx

In the light of the above, it was contended that herein an Administrator had been appointed for the Marketed but this appointment suffers from a patent illegality because the law require an order in writing by the Registrar himself, where as, in the present case admittedly the order had been passed by an addition Registrar appointing the Registrar in reverse as the Administrator of the Society, Counsel submitted that for this glaring violation of Section 26(1D) of the Act the order of appointment of the Administrator was wholly illegal and as a necessary consequence Annexure P/5 passed by the purported Administrator was a nullity.

9. On the aforesaid ground the learned counsel for the petitioner seems to us as being on a plausible footing in so far as the challenge to Annexure P/5 alone is concerned. In view of the stand now taken before us this writ petition is directed only against respondent Nos. 1 to 4 and 6 For this limited purpose the petitioner would appear to us as entitled to sustain his challenge to Annexure P/5 alone and maintain the writ against the State as also the public and statutory functionaries like. Registrar and the Additional Registrar. This aspect of the case is well supported on plain principle as also on precedent. Indeed in Kulwant Singh's case (1982 Pun LJ 399)(supra), the writ was allowed to be maintained because of the fact hat it sought to challenge a glaring infraction of Section 26(b) of the Act. As already noticed, in essence, now the case of the petitioner is confined to the violation of Section 26(1D) of the Act. Where a relief is sought primarily against the registrar of the Co-operative Societies, a writ would be plainly maintainable and this view is further strengthened by the following observation of their Lordship in Nayagarh Co-operative Central Bank Ltd.'s case (AIR 1977 SC 112)(supra).

'... We would have liked to go into the question for ourselves, but it is unnecessary to do so asrespondent No. 1 by his writ petition was asking for relief not really against a Co-operative Society but in regard to the order which was passed by the Registrar, who was acting as a statutory authority in the purported exercise or powers conferred on him by the Co-operative Societies Act. The writ petition was in that view maintainable.'

10. In view of the above, we hold that only to the limited extent of the challenge to Annexure P/5 as being iolative of the provision of Section 26(1D) of the Act the writ would be maintainable against respondents Nos. 1 to 4 and 6. Admittedly, however, the merits of this case involve neither any conflict of precedent not any exceptional difficulty and can aptly be disposed of by a learned single Judge. Having settled the basic question of law which had necessitated this reference, we direct that this case be placed for decision on merits before a singly Bench.

P.C. Jain, J.

11. I agree.

J.M. Tandon, J.

12. I agree.

13. Order accordingly.


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