Kandaswamy and Others vs The Deputy Registrar of Co-operative Societies, Coimbatore and Another

Venkararama Ayyar, J.—This is an application under Article 226 of the Constitution for the issue of a Writ of Certiorari to quash an order

dated 2-11-1952 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, Ltd, which was a society registered in

1947 under the Madras Co-operative Societies Act, 4 of 1932. The second respondent is the Secretary of the Society. At a General Body

Meeting of the Society held on 30-7-1952 the following resolutions were passed:

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.

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.

This Meeting of the General Body decides that no direct recruitment should be made to posts of Foreman, Assistant Foreman. Storekeeper,

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 2-11-

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.

Item No. 7. Resolution (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.

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.

Item No. 7. Resolution No. 4: Under bylaw 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 lise 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, 2nd Edn. Vol. 9, Page 855 para 1449 and the decision of the Supreme Court in -- Province of Bombay Vs.

Kusaldas S. Advani and Others, . The question is whether the order dated 2-11-1952 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 reference to co-operative societies under the Act are both

administrative and judicial. The object of the Act is to promote thrift, self-help and mutual aid and for that purpose to encourage the formation and

working of societies on co-operative principles. To achieve this object, the Government renders financial aid to the societies. It confers certain

extra privileges on the societies such as freedom from Income Tax, stamp duty, registration fees and the like. To ensure the proper working of the

societies, the Government exercises control over the grant of loans and investment of funds. The Registrar has to arrange for audit of the accounts

of the societies and for the inspection of their books. He has also powers to supersede the committee, to dissolve the society and direct its winding

up. All these functions are purely of an administrative character.

Section 51 provides for reference of disputes mentioned therein to arbitration. Then follow provisions for the conduct of the arbitration, for appeals

from the decisions of the arbitrator and for execution of the award. These are judicial functions involving the adjudication of civil rights of parties.

This being the general scheme of the Act; it has to be seen whether the order dated 2-11-1952 is judicial in character. It is not an order passed

in proceedings u/s 51 of the Act. It is not a decision on a dispute between the members of the society. Under the bye-laws of the society the

Secretary has to be a person appointed by the Department. The second respondent is a Government servant and an officer of the Co-operative

Department whose services have been lent to the society and he is responsible to the Department for his acts. If the resolution passed on 30-7-

1952 was ultra vires and payments had been made in pursuance of resolution (1), he would be liable to be surcharged and it is in these

circumstances that he wrote to his Departmental superior for instructions and the communication, dated 2-11-1952 is a reply to his letter and is

intended for his guidance.

On behalf of the petitioners emphasis was laid on the fact that the communication in question is styled an order, that it was communicated to all the

members and that in its contents it reads like an order. But the substance of the communication is that it is in, the nature of departmental instructions

given to the Secretary in reply to his letter. It is noteworthy that the letter to which this is .a reply was marked ""confidential"". I am unable to regard

the communication dated 2-11-1952 as a judicial or a quasi-judicial order. In my opinion it is a purely departmental communication and no writ of

Certiorari is admissible to quash it.

It is next argued that even if a writ of Certiorari does not lie, I should exercise my power under Article 226 of the Constitution to issue proper

directions as the fundamental rights of the petitioners to form an association under Article 19(1)(c) have been violated. I am unable to see how that

Article can have any application to the facts of this case. The communication dated 2-11-1952 does not prohibit the formation of any association.

It merely expresses the view that the resolutions passed on 30-7-1952 are not in accordance with the bye-laws of the society and therefore void.

It was argued that the members of an association have the right to pass any resolution to regulate their right and an interference with that right is

repugnant to Article 19(1)(c). But the rules and by-laws of an association are binding on its members and so long as they are in force all the

members are bound to act in accordance therewith and it is no infringement of the right to form an association under Article 19(1)(c) to require that

members of an association should act in conformity with the rules of that association. If the majority of the members are dissatisfied with those

rules, their only remedy is to get them amended in accordance with law and not to break them.

If moreover, the order dated 2-11-1952 is merely a departmental communication to the Secretary, it is difficult to see how the members are

entitled to impugn its validity. They cannot be said to be aggrieved by that order. If in pursuance of the directions contained therein the Secretary

does anything which infringes the rights of the members, then it will be open to them to move in the matter and claim such appropriate reliefs as

they may be entitled to in proceedings properly taken in that behalf. At this stage, there is only an expression of opinion by the Registrar that the

resolutions are ultra vires and I am unable to hold that on that the petitioners are entitled to any directions under Article 226 of the Constitution.

In the counter affidavit on behalf of the second respondent, apart from alleging that the order dated 2-11-1952 was an administrative one, it was

also stated that the remedy of the petitioners, if at all, was by way of an appeal to the Registrar of Co-operative Societies. In the arguments before

me it was conceded that an appeal would lie to the Registrar u/s 12 only if the resolutions passed on 30-7-1952 were amendments to by-laws.

The affidavit in support of the petition proceeds on the footing that they are mere resolutions. I am of opinion that that is the correct position. These

resolutions cannot be treated as amendments to bylaws and the objection that an appeal lies against the order dated 2-11-1952 must be overruled.

For the reasons already given, I must decline to interfere and this petition is accordingly dismissed with costs, two sets. Advocate''s fee Rs. 100.

C. M. P. No. 19 of 1953, C. M. P. No. 326 of 1953, C. M. P. No. 1629 of 1953 and C. M. P. No. 1630 of 1953: No further orders are

necessary in these petitions. They are dismissed.