Skip to content


iranikkulam Co-operative Society and ors. Vs. Kuttikkad Service Co-operative Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 184 of 1974
Judge
Reported inAIR1975Ker4
ActsConstitution of India - Article 226
Appellantiranikkulam Co-operative Society and ors.
RespondentKuttikkad Service Co-operative Bank Ltd. and ors.
Appellant Advocate Varghees Kalliath,; John Koshi and; Joseph A. Vadakkel
Respondent Advocate M.I. Joseph,; P.V. Cherian, Advs. and;Govt. Pleader
DispositionAppeal allowed
Cases ReferredSee Aidal Singh v. Karan Singh
Excerpt:
civil - selection of societies - article 226 of constitution of india - appeal against order passed by single judge that impugned selection of societies without following procedural requirements - private citizen cannot claim that there has been any infringement of his rights merely on ground that such administrative instruction of government had been violated by its subordinates - no scope for interference under article 226 - order passed by single judge liable to be set aside - appeal allowed. - - 2. the writ petitioner as well as res-pondents nos. on 18-3-1974. it was clearly specified in ext. the committee also prepared a waiting list consisting of 5 societies for allotment of blocks, if any, that may fall vacant if any of the allottees of the 22 blocks failed to take the.....balakrishna eradi, j. 1. this appeal has been preferred against the judgment of a learned judge of this court allowing o. p. no. 1546 of 1974. respondents nos. 3, 4 and 5 in the original petition are the appellants before us. the petitioner in o. p. no. 1546 of 1974 is the 1st respondent in this appeal. the parties will hereafter be referred to in accordance with their array and ranking in the original petition.2. the writ petitioner as well as res-pondents nos. 3 to 5 are all co-operative societies. a fairly large extent of forest lands in the vazhachal range had been earmarked for being leased out for a special type of cultivation which goes by the name 'taungya cultivation'. under this system of cultivation the grantee is required to clear the land of forest growth so as to make it.....
Judgment:

Balakrishna Eradi, J.

1. This appeal has been preferred against the judgment of a learned Judge of this court allowing O. P. No. 1546 of 1974. Respondents Nos. 3, 4 and 5 in the original petition are the appellants before us. The petitioner in O. P. No. 1546 of 1974 is the 1st respondent in this appeal. The parties will hereafter be referred to in accordance with their array and ranking in the original petition.

2. The writ petitioner as well as res-pondents Nos. 3 to 5 are all co-operative societies. A fairly large extent of forest lands in the Vazhachal range had been earmarked for being leased out for a special type of cultivation which goes by the name 'Taungya Cultivation'. Under this system of cultivation the grantee is required to clear the land of forest growth so as to make it suitable for being planted with teak and eucalyptus plants and is allowed simultaneously to cultivate the said land for a period of two years. Duringthe first year the grantee if permitted to culti-vate the land with paddy while the department will carry out the planting of the eucaly-ptus plants. During the second year the grantee is allowed to cultivate tapioca on the land in the spaces intervening between the tapioca and teak plants raised by the department. At the end of two years the rights of the grantee terminate and the department will assume complete control over the land. The policy that was originally being followed in regard to the grant of such licences for Taungya Cultivation was to put to auction the right to cultivate the lands under the said system. On 15-12-1967 Government issued G. O. MS. 486/67/Agri. -- Ext. P1 -- laying down a revised policy in regard to the said matter. Under that order the Government announced its decision that co-operative societies interested in entering the field of Taungya Cultivation should be given special consideration. Accordingly it was directed by paragraph 2 of Ext. P1 that whenever co-operative societies come forward for taking up Taungya Cultivation, forest lands available for such cultivation should be leased out to such societies on negotiated terms and conditions. It was further directed that the rent to be paid by the co-operative societies should be fixed at 5 per cent. above the average of the bid amount fetched during the previous year worked out on a divisional basis. There are also some other provisions contained in Ext. P1 but they are hot relevant for our present purpose and hence it is unecessary to advert to them. With a view to remove some doubts and difficulties experienced by the department in the matter of implementation of the instructions given as per Ext. P1 Government issued certain clarifications as per G. O. MS. 240/ Agri. dated 3-5-1968 (Ext. P2). It was directed by the said order that for purposes of fixation of the rent to be paid by the cooperative societies to which forest lands are leased out for Taungya Cultivation pursuant to Ext. P1 the average of the bid amount fetched during the previous year should be worked out by adopting each range as a unit instead of each division as had been originally ordered in Ext. P1. Government also incorporated in Ext. P2 instructions as to the procedure to be followed by the officers empowered to lease out the land in cases where too many societies come forward requesting for the grant of the same land.

3. The 2nd respondent -- the Divisional Forest Officer, Vazaohal Industrial Plantation Division -- issued Ext. P3 notice dated 14-2-1974 announcing that the right of cultivation under the Taungya system in respect of the areas comprised in 22 blocks specified in the schedule appended to the said notification for the period of two years ending on 31-3-1976 would be sold by him in public auction at his office at 11 A. M. on 18-3-1974. It was clearly specified in Ext. P3 that co-operative societies would be given preference in the matter of granting the leaseand that interested societies should apply in writing on or before 11-3-1974 stating the name of the coupe, the extent of the area required and the name of the range wherein the land is situated. In response to Ext. P3 the writ petitioner society applied for blocks 2, 3, 8 and 15 situated within the Vazachal range. It would appear that applications had been received from as many as 93 co-operative societies including respondests Nos. 3 to 6 and some of them had applied for the very same blocks which had been applied for by the petitioner. All the applications were referred to a committee constituted for the said purpose as per G. O. Rt. 2966/69/AD dated 28-11-1969 (Ext. R1). The said committee consisted of the Divisional Forest- Officer, Deputy Registrar of Co-operative Societies, the Sub-Collector/Revenue Divisional Officer and the Block Development Officer of the area. The committee considered all the applications at its meeting held on 16-3-1974 and allotments were made to 22 societies giving one block to each of them. The committee also prepared a waiting list consisting of 5 societies for allotment of blocks, if any, that may fall vacant if any of the allottees of the 22 blocks failed to take the allotted block after executing the necessary agreement. The name of the petitioner society was not included in the select list of allottees but the petitioner has been assigned the first place in the waiting list. The writ petition was filed by the petitioner for quashing the said selection in so far as it relates; to blocks Nos. 2, 3, 8 and 15 for which the petitioner society had made the application and for the issuance of a writ of mandamus directing respondents Nos. 1 and 2 to consider afresh the petitioner's application in accordance with the provisions contained in Ext. P2.

4. The main contention taken in the writ petition is that the impugned selection has been made arbitrarily without following the procedure prescribed in Exts. P1 and P2 and in violation of some of the principles laid down in those orders. It is alleged in the original petition that the petitioner society is functioning within the Vazhachal range and was therefore entitled to preference in the matter of grant of lands situated within that range but instead of recognising this superior claim of the petitioner society allotments were made in favour of respondents Nos. 3 to 6 who have no interest whatever in the said range and the petitioner's application was rejected without any justifiable reasons. It is also alleged that no conference of the various applicants who had requested for allotment of blocks Nos. 2, 3, 8 and 15 was convened by respondents Nos. 1 and 2 as enjoined by Ext. P2. The petitioner contends that since the selection was made without following the procedural requirements laid down in Ext. P2 it is null and void.

5. The writ petition was resisted by the respondents by contending inter alia thatthe writ petitioner has no locus standi at all to seek relief from this court under Article 226 of the Constitution since the petitioner had BO legal right to get a lease of the Government lands and the impugned decision taken by the committee to allot the lands in favour of the 22 societies including respondents Nos. 3 to 6 was purely executive in character and involved no infringement of any right of the petitioner. It was also submitted on behalf of the respondents that since the provisions contained in Exts. P1 and P2 are only in the nature of administrative instructions issued by the Government to its subordinate officers, they do not operate to confer any legal or enforceable rights on private persons and hence even if it is to be assumed that there has been some violation of the procedure laid down in Exts. P1 and P2 in making the impugned allotment that will not give rise to any cause of action justiciable under Article 226 of the Constitution. On the merits the respondents stoutly denied the petitioner's allegation that the selection had been made arbitrarily without adhering to the principles laid down by the Government. It was submitted that all the applications received in response to Ext. P3 bad been duly considered by the committee constituted for the purpose under the Government order Ext. Rl and the selection was made by the committee only strictly in accordance with the guidelines issued by the Government. The petitioner's allegation that it is a society functioning within the limits of the Vazhachal range and was entitled to preference on that ground has been refuted by the respondents and it has been categorically sworn to by the Divisional Forest Officer in his counter-affidavit that the area of operation of the petitioner society does not fall within the Vazhachal territorial range nor even within any of the four ranges of the Vazhachal Industrial Plantation Division and that therefore the petitioner society was not entitled to any preference under the terms of Ext. P2 in the matter of the grant of the lease.

6. The learned single Judge first considered the question whether the impugned selection was made in accordance with the principles laid down in Exts. P1 and P2 and came to the finding that hi making the selection some of the directions contained in Ext. P2' had been violated. It was held that the selection had to be regarded as arbitrary in as much as the minutes of the committee evidenced by Ext. R2 did not contain any indication as to the criteria adopted by it in the matter of making the said selection and the reason why the 22 societies had been chosen in preference to others.

7. On the question whether the petitioner had locus standi to, maintain the writ petition for quashing the impugned selection under Article 226 of the Constitution on the ground that it had been made in violation of the principles embodied in Exts. P1 and P2, the learned Judge expressed the view thatExts. P1 and P2 embody only administrative instructions issued by the Government to its officers and that a private citizen cannot claim that there has been any infringement of his rights merely on the ground that such administrative instructions of the Government had been violated by its subordinates. The learned Judge reiterated the principle which he had laid down in an unreported judgment rendered by him in O. P. No. 3491 of 1973 = (Since reported in AIR 1974 Ker 192) that a mere breach of executive instructions in matters concerning the conduct of auctions will not vest any right in a citizen to claim that on violation thereof the High Court in the exercise of its jurisdiction under Article 226 of the Constitution must interfere. Accordingly the learned Judge held that the petitioner had no locus standi to maintain the writ petition challenging the grant of the lease to respondents Nos. 3 to 6 on the ground that there had been a breach of Exts. P1 and P2. After having recorded the aforesaid finding negativing the petitioner's locus standi to maintain the writ petition, the learned Judge, however, proceeded to observe as follows :--

'But what I have said above does not finally settle the matter. Though in cases where the petitioner's complaint is that administrative instructions issued by the Government have been violated by its officers the Court may not consider the petitioner as having a legal right to complain, it is nevertheless open to the court to interfere where it finds that the officers of the Government have been acting in a manner prejudicial to the interests of the State or that the conduct of such officers is likely to promote favouritism or such conduct is mala fide. In the same decision to which I have adverted, this Court said-- 'Of course there is an exception to this rule and that is when those who are acting on behalf of the Government are acting mala fide, in the sense prejudicial to the interests of the State by causing loss of revenue or in a manner promoting nepotism or corruption. In such a case the court entertains a petition not primarily with a view to secure any rights of the petitioner alleged to have been infringed but in the larger interests of the State.'

It is true that the Government wanted to prefer the Co-operative Societies to individuals in the matter of leasing out lands for Taungya cultivation. But even in the matter of preference of the Co-operative Sector there must be proper rules for guidance for selection. The preference given to Co-operative Societies in the Range to that in the Division and that in the Division to those in the Circle is certainly proper. Similarly in case of competition the direction to lease out the land to the Society which offers highest rent is also a proper direction. If these rules are not applied but arbitrarily some Societies are chosen that may result in loss of revenue to the State and also in the likelihood of a charge of favouring some Societies in preference to others. In view of such keen competitionthe rules as to preferring those in the Range should have been applied. Even if that was not to be applied the lease should have been given to those who were prepared to pay the highest rent. This would have brought in larger revenue for the State-- If, in spite of these, some Societies are arbitrarily chosen which selection is not sought to be justified by reference to any rule of guidance adopted by the Committee, the Court will be justified in interfering. Therefore even though the petitioner's complaint is violation of administrative instructions, there is sufficient justification for this Court to interfere in this petition under Article 226 of the Constitution of India.'

On the basis of the aforesaid reasoning the learned Judge quashed the proceedings of respondents Nos. 1 and 2 in so far as it related to the lease of blocks Nos. 3, 8 and 15 in favour of respondents Nos. 3 to 6 and directed respondents Nos. 1 and 2 to consider afresh, in accordance with law, the applications relating to the lease of those blocks.

8. It is argued on behalf of the appellants that the function performed by respondents Nos. 1 and 2 in leasing out Government lands was purely executive in character and since there are no statutory rules governing the said matter but only some executive instructions issued by the Government as per Exts P1, P2 and R1, purely for the guidance of its subordinates, there is no scope at all for any interference by this court under Article 226 of the Constitution with the decision taken by the department for the allotment of lands to 22 societies including respondents Nos. 3 to 6. The appellants' counsel further submitted that the properties in question being admittedly Government lands over which the Government have absolute power of dis-posal, Government, just like any other owner, has the fullest freedom to decide about the persons with whom it would enter into the transactions of lease and the validity of such action taken by the Government is not liable to be called in question by anyone under Article 226 of the Constitution. In support of the said contention reliance was placed by the appellants on the decisions of the Supreme Court in C. K. Achutan v. The State of Kerala, AIR 1959 SC 490 and Pursotama Ramnath Quenim v. Nakan Kalyan Tandel, (1974) 1 SCWR 384 = (AIR 1974 SC 651). It was also strongly urged on behalf of the appellants that in view of the categorical finding arrived at by the learned single Judge that the provisions of Exts. PI and P2 are only in the nature of administrative instructions a violation of which cannot give rise to a cause of action for seeking relief under Article 226 of the Constitution and that the petitioner has no locus standi to maintain a challenge against the impugned selection in as much as there had not been any infringement of his legal rights, the writ petition ought to have been dismissed by this court since the existence of a legal right and the infringe-ment thereof constitute the foundation for the exercise of the jurisdiction under Article 226 of the Constitution. It is submitted on behalf of the appellants that the view taken by the learned single Judge that even if the person who has moved this court for relief under Article 226 of the Constitution is found to have no locus standi to maintain the writ petition the court can, nevertheless, interfere with the action complained against on the ground that it has been taken arbitrarily or in a manner which is likely to cause loss of revenue or other prejudice to the interests of the State does not represent the correct legal position.

9. The lands in question being the property of the State Government over which it has absolute powers of disposal the petitioner society has no legal right at all to claim that it should be granted a lease in respect of any of the 22 blocks comprised in Ext. P3. There exist no statutory rules imposing any fetters on the Government's discretionary powers in the matter of the disposal of such lands. Exts. P1 and P2 embody only administrative instructions issued by the State Government to its subordinate officers laying down the procedure to be followed by them in the matter of granting leases of forest lands for Taungya Cultivation. It is well settled that a breach of such executive instruc-tions will not confer any right on private parties to approach the High Court under Article 226 of the Constitution seeking to quash the action allegedly taken in violation of those instructions. See State of Assam v. Ajit Kumar Sharma, AIR 1965 SC 1196 and G. J. Fernandez v. The State of Mysore, AIR 1967 SC 1753. We are, therefore, in complete agreement with the view expressed by the learned Judge that the petitioner has no locus standi to seek any relief from this court under Article 226 of the Constitution on the basis of its contention that there has been a breach of the terms of Exts. P1 and P2.

10. The further question to be considered is whether in the light of its having been found by the learned single Judge that no legal right of the petitioner society had been infringed and that hence the petitioner had no locus standi to maintain the writ petition, there was any scope or justification ia law for interference by this court on the ground that the impugned selection was either arbitrary or prejudicial to the interests of the State. The scope of the jurisdiction conferred on the High Courts by Article 226 of the Constitution has been examined and explained by the Supreme Court in a number of decisions and it has been uniformly held that the existence of a legal right in the party seeking the said extraordinary relief and the illegal infringement or threat of invasion of such right constitute the foundation of the exercise of the jurisdiction of the High Court. It is also equally well established by those decisions that though the said Article in termsdoes not describe the class of persons entitled to apply thereunder it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right and that the right that is sought to be enforced should ordinarily be the right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may be relaxed. See the State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; the Calcutta Gas Company (Proprietary) Ltd. v. The State of West Bengal, AIR 1962 SC 1044; Kalyan Singh v. State of U. P.. AIR 1962 SC 1183 and State of Punjab v. Suraj Parkash Kapur, AIR 1963 SC 507. We may, also usefully recall in this context the following observations of the Supreme Court in State of Orissa v. Ramchandra Dev, AIR 1964 SC 685 at p. 688 :--

'Under Article 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Article 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226.'

The question that arose before the Supreme Court in that case was whether the High Court of Orissa was justified in issuing a writ directing the State Government of Orissa not to dispossess the two writ petitioners from certain lands in their possession otherwise than in due course of law after that court had reached the conclusion that it was impossible for it to decide the important question relating to the writ petitioners' title to the property in writ proceedings under Article 226 of the Constitution. The Supreme Court pointed out that once it was held that the question of title could not be determined, it followed that no right could be postulated in favour of the writ petitioners on the basis of which a writ could be issued under Article 226 of the Constitution. In this view the Supreme Court held that the High Court was in error in allowing the writ petition and issuing a writ against the State Government.

11. The legal position is thus wellestablished that the sine qua non for the exercise of the High Courts jurisdiction underArticle 226 of the Constitution is the existence of a legal right in the person who movesthe court for relief and the actual infringement or threatened invasion of such right bya public authority, the only exception beingin the case of applications for the writ of habeas corpus or quo warranto where the legal right alleged to be infringed need not be that of the petitioner himself. The object and purpose of Article 226 is to provide a speedy remedy to persons aggrieved by orders passed or actions taken by public authorities and tribunals which involve the infringement of legal rights of private persons. If the party who has approached the court for relief is found to have suffered no legal injury and hence to have no locus standi to seek relief under Article 226, the court has merely to dismiss the proceeding, since the condition precedent for the exercise of its jurisdiction is not satisfied. A proceeding under Article 226 is in the nature of an individual remedy provided by the Constitution to a person aggrieved by the action of a public authority or tribunal and the power under that article is intended to be exercised by the High Court only to redress the injury suffered by such a person. The jurisdiction under Article 226 of the Constitution can be exercised by a High Court only on the application of a party and for the enforcement of a legal right, unlike the power under Article 227 of the Constitution which can be exercised suo motu by the court. See Aidal Singh v. Karan Singh, AIR 1957 All 414 (FB). On an examination of the scope and content of Articles 226 and 227 of the Constitution it appears to be clear that in enacting Article 226 the intention was only to confer power on the High Court to issue appropriate writs and directions for the enforcement of fundamental rights or other legal rights of the persons who move the court for relief, whereas by Article 227 a general power of superintendence has been conferred on the High Court over all the courts and tribunals functioning within its jurisdiction. It is by virtue of such general power of superintendence conferred by Article 227 of the Constitution that the High Court is vested with the authority to issue directions suo motu to all courts and tribunals within its jurisdiction. There is no corresponding power vested in the High Court over other public authorities under Article 226 of the Constitution.

12. It follows from the above discussion that no writ under Article 226 of the Constitution can be issued by the High Court in cases where it is found that the person who has approached the court for relief has not suffered any legal injury and has therefore no locus standi to maintain the petition. The learned single Judge has held that even in a case where the petitioner is found to have suffered no violation of any legal right it is nevertheless open to the court to interfere if it finds that the officers of the Government have been acting in a manner prejudicial to the interests of the State or that the conduct of such officers has been such as is likely to cause loss of revenue or promote nepotism or corruption. In our opinion, there is no legal basis for recognising any such excep-tion. Since the object and effect of Article 226 of the Constitution is only to enable persons aggrieved by actions of public authorities and tribunals to approach the High Court for enforcement of their fundamental or other rights and since the Constitution has not invested the High Court with a general power of superintendence over the functioning of the Government or other public authorities, it must be held that the High Court's power of interference under Article 226 of the Con-sitution can be exercised only for the purpose of enforcement of the rights of the person who approaches it for relief. If the party who has approached the court for relief is found to have no legal right at all, no occasion arises for the exercise of the court's power under Article 226 of the Constitution and the writ petition has only to be dismissed whatever may be the court's view regarding the correctness or propriety of the action of the public authority complained against by the petitioner.

13. It is true that in Guruswamy v. the State of Mysore, AIR 1954 SC 592, the Supreme Court has made certain observations regarding the necessity for avoidance of loss of Government revenue and also the elimination of favouritism, nepotism and corruption. In that case a liquor contract was knocked down in an auction by the Deputy Commissioner in favour of the writ petitioner who was the highest bidder. Another person who was present at the auction but did not bid went up to the Excise Commissioner and offered Rs. 5000 in excess of the writ petitioner's bid. The petitioner's bid was thereupon cancelled and the contract was awarded to the other party without following the procedure for negotiation prescribed under the Mysore Excise Act. The Supreme Court found that the award of the contract to the opposite party was illegal since the said action had been taken in violation of the rules framed under the statute and it was on that ground that the writ petition was allowed. The observations of the Supreme Court touching upon the necessity for avoidance of loss of revenue and elimination of nepotism, corruption etc. were made only against the said background of a clear violation of the provisions of a statutory rule. The said decision cannot be understood as an authority for the position that a writ under Article 226 of the Constitution can be issued by the High Court even in a case where the petitioner has not made out the existence of any legal right or the violation thereof, in the larger interests of safeguarding the State against loss of public revenue or for the elimination of the possibility of nepotism and corruption. We are supported in this view by the observations con-tained in a recent pronouncement of the Supreme Court in (1974) 1 SCWR 384=(AIR 1974 SC 651) wherein it has been pointed out that the basis of interference by the court in AIR 1954 SC 592, was that there was a contravention of a statutory rule framed underthe Mysore Excise Act in giving the liquor contract to Thimmappa.

14. The conclusion that emerges from the preceding discussion is that there is no scope for any interference by the High Court under Article 226 of the Constitution in cases where it is found that the petitioner who has approached the court for relief has no locus standi to maintain the writ petition; this is nonetheless so even if the court finds that the action complained against by the petitioner is prejudicial to the interests of the State, in that it might either lead to a loss of revenue or to the promotion of nepotism or corruption. It must be left to the executive government and to other controlling bodies like the legislature and its public accounts committee and agencies like the Audit and accounts department functioning under the control of the Auditor-General of India to take necessary corrective steps for the avoidance of such loss of revenue and the elimination of nepotism and corruption.

15. Although counsel for the appellants challenged before us the correctness of finding entered by the learned single Judge that in making the impugned selection there has been violation of provisions of Ext. P2 we consider it unnecessary to investigate into the said matter in view of our having held that the writ petition has only to be dismissed on the ground that the petitioner has no locus standi to seek the relief under Article 226 of the Constitution. The said question is, therefore, left open and the finding entered thereon by the learned single Judge will stand discharged.

16. In the result, the writ appeal is allowed, the judgment of the learned single Judge is set aside and O. P. No. 1546 of 1974 will stand dismissed. The appellants will get their costs of this appeal as well as of the original petition from the 1st respondent herein (writ petitioner).


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //