P. Sasi Chairman, Raidco vs Joint Registrar and Others

K.P. Balanarayana Marar, J.—The two main aspects that arise for consideration in this original petition are:

i. Whether a Co-operative Society registered under the Kerala Co-operative Societies Act is an authority coming within the purview of Article 226 of the Constitution of India ?

ii. Whether an administrator appointed under the provisions of the Kerala Co-operative Societies Act is a person or authority coming under Article 226 and whether a writ will lie against an administrator?

Petitioner is the Regional Agro-Industrial Co-operative Ltd. Kannur (RAIDCO for short). RAIDCO is the supplier of pump sets through primary Co-operative societies/banks all over Kerala. Having come to know of manipulations by private dealers in the supply of pumpsets, the Registrar of Cooperative Societies, the 5th respondent was informed of the same and by order dated 27-12-1983 5th respondent directed all the Joint Registrars to issue directions to the primary Co-operative banks/soda ties to insist purchase of pumpsets from RAIDCO only. Accordingly directions were issued by the Joint Registrars in all the districts. District Co-operative Bank, Kannur was issuing loans with a stipulation that pumpsets should be purchased from RAIDCO. By Ext P2 dated 25-1-1992 the bank had insisted purchase of pumpsets from RAIDCO. Since then the elected Board of the bank had been changed and an administrator appointed. An administrator was appointed for the District Co-operative Banks in Kannur and Kasaragod Districts. Since then a circular was issued by the Kannur Bank on 26-3-1992 withdrawing condition No. 6 in the loan sanction order insisting purchase of pumpsets from RAIDCO and it was stated that the loanees can purchase pumpsets and accessories from any authorised dealer they like. That order is under challenge in this original petition on the ground that the circular has been Issued in violation of the order of the Registrar Ext. P1 dated 27-12-1983. The RAIDCO has approached this court through its Chairman seeking a writ of certiorari to quash Ext. P4 order and a direction to the 5th respondent to take necessary action to withdraw that circular and to implement Ext. P1 order.

Respondents 2 to 4 filed counter affidavits. In the counter affidavit filed on behalf of respondents 2 and 3 it is stated that Ext. P2 circular was issued on the basis of the specific directions issued by National Bank for Agriculture and Rural Development (NABARD) and that various circulars were issued by NABARD imposing conditions for sanctioning loan. That circular does not suffer from any want of jurisdiction or any other legal infirmities.

The 4th respondent, the General Manager of the District Co-operative Bank, Kannur, in her affidavit contends that no writ will lie against a co-operative society. She also stated that the scheme was evolved by the bank and approved by NABARD and $he conditions imposed by the NABARD had to be followed by the bank.

One Krishnan Kakkanath and another got themselves impleaded as supplemental respondents 6 and 7. They sought impleadment for the reason that the impugned circular was issued on the basis of a representation made by them. It is also contended that Ext P2 circular was issued without noticing the real facts and the decision of this court. The Registrar had issued a circular as per R6(b) insisting purchase of pumpsets from RAIDCO. That circular was challenged before this court in O.P. 9628/89. The original petition was allowed and the circular was quashed. During the pendency of the appeal against that decision permission was sought to withdraw Ext. R6(b) circular. This permission was granted and the appeal was disposed of without rendering a decision on the merits of the original petition. Thereafter another circular was issued as per R6(e) which also is under challenge in O.P. 8298/90 pending before this court. The petition for impleadment was allowed. A counter affidavit was filed by 6th respondent opposing the original petition and in particular contending that RAIDCO cannot have any preferential treatment at the cost of similarly situated dealers.

Heard counsel for petitioner and 6th respondent and Government Pleader.

The question whether a co-operative society is an authority coming under Article 226 of the Constitution and whether a writ will lie against the society is no longer res integra. Since learned counsel for petitioner attempted to distinguish the earlier decisions in view of the decision of the Supreme Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, it has become necessary to make a survey of the decisions of the Supreme Court, this Court and various other High Courts on this aspect As early as 1975 the Supreme Court in the decision in Executive Committee of Vaish Degree College, Shamli and Others Vs. Lakshmi Narain and Others, observed that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. The appellant in that case was the executive committee of Vaish Degree College in the district of Musaffarnagar registered under the Co-operative Societies Act. The affairs of the College were managed by the executive committee. The contention was that the College being affiliated to the Agra University it has become a statutory body and had no jurisdiction terminate the service of the respondent without seeking the previous approval of the Vice-Chancellor. It is in this connection that the Supreme Court observed that before an institution can be a statutory body it must be created by or under statute and owe its existence to the statute. This must be the primary thing which has got to be established. The Supreme Court observed that a distinction must be make between an institution which is not created by or under a statute but is governed by certain statutory provisions for the proper maintenance and administration of the institution. According to the Supreme Court the question to be asked is whether the Institution would have any legal existence if there is no statute. If the answer is in the negative, then undoubtedly it is a statutory body. If the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body. It was held that the High Court was in error in holding that merely because the executive committee followed certain statutory provisions of the University Act or the statutes made thereunder it must be deemed to be a statutory body. It is observed that the College was affiliated to the Agra University merely for the sake of convenience and mainly for the purpose that the courses of studies prevalent in the College may be recognised by the University.

The question whether a Co-operative society registered under the Orissa Co-operative Societies is an authority falling within the definition of State in Art. 12. Act came up for consideration before the Supreme Court in The Nayagarh Co-operative Central Bank Ltd. and Another Vs. Narayan Rath and Another, The Orissa High Court has held that a writ can be maintained. The Supreme Court while holding that the observation made by the High Court and its decision that such a writ petition is maintainable are not strictly in accordance with the decision of the Supreme Court left open that question to be decided by the High Court as and when it arises in the light of the decisions of the Supreme Court. In that case the writ petition was found to be maintainable since the relief was not against a co-operative society but in regard to the order passed by the Registrar who was acting as a statutory authority in exercise of the powers conferred on him by the Co-operative Societies Act. At the same time the Supreme Court trade it clear 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.

In Ajay Hasia and Others Vs. Khalid Mujib Sehravardi and Others, the Supreme Court had to consider whether the society registered under the Jammu and Kashmir Registration of Societies Act for the management the Regional Engineering College Srinagar is an authority falling within the definition of State in Article 12 of the Constitution. The Supreme Court held that the society is an instrumentality of the agency of the State. The reason for holding so is that the State Government and the Central Government have fall control of the working of the society. The monies required for running the college are provided entirely by the Central Government and the Government of Jammu and Kashmir. Other monies can be received by the society only with the approval of the State and Central Governments. The society has to comply with all such directions issued by the State Government with the approval of the Central Government in respect of any matter dealt with in the report of the reviewing committee. No immovable property can be disposed of without the approval of the Governments. The Board of Governors in charge of the general superintendence and the income and property of the society are largely controlled by the nominees of State and Central Governments. It is for these reasons that the Supreme Court held that the society is merely a projection of the State and the Central Government.

The question whether the Indian Council of Agricultural Research (ICAR) is covered by the expression ''other authorities'' in Article 12 of the Constitution came up for consideration before the Supreme Court in P.K. Ramachandra Iyer and Others Vs. Union of India (UOI) and Others, . ICAR is a society registered under the Societies Registration Act. But it was an adjunct of the Government of India and wholly financed by the Central Government. Its budget was voted upon as part of the expenses incurred in the Ministry of Agriculture. Though its status under - went a change, it continued as an attached office of the Government of India. The control of the Government of India was thus continuous and permeates through all its activities. Government of India had transferred research institutions set up by it to this body. Having regard to these features and relevant rules of ICAR and applying the criteria laid down in Ajay Hasia''s case the Supreme Court held that ICAR is a society set up by the State and an instrumentality or agency of the State covered under Article 12 of the Constitution.

A contention was arised before the Supreme Court that the Council of Scientific and Industrial Research (CSIR), a society registered under the Societies Registration Act and having an Identical set - up as well as constitution was held not to be an instrumentality of the State or other authority under Article 12 in Sabhajit Tewary Vs. Union of India (UOI) and Others, . The Prime Minister was the President of that society. The Supreme Court observed that the fact that the Prime Minister is the President or that the Government appoints nominees to the governing body or that the Government may terminate the membership will not according to that Court establish anything more than the fact that the Government takes special care that the promotion, guidance and co - operation of scientific and industrial research, the institution and financing of specific researches, establishment of development and assistance to special institutions for scientific study of problems affecting particular industry in a trade, the utilisation of the result of the researches conducted under the auspices of the Council towards the development of industries in the country are carried out in a responsible manner, and these aspects are not sufficient to reach the conclusion that the society was an agency or instrumentality of the Government. The Supreme Court observed that much water has flown down the Jamuna since the dicta in Sabhajit Ttwary case. None of the features pointed out in Ramachandra Iyer''s case was present in the case of CSIR. The Supreme Court therefore observed that the decision in Sabhajit Tewary case would not render any assistance and was clearly distinguishable. Turning to Ajay Hasia''s case the Supreme Court observed that it was held therein that the decision in Sabhajit Tewary case is not an authority for the proposition that a society registered under the Societies Registration Act 1860 can never be regarded as an authority within the meaning of Article 12. It is further observed that the conclusion that CSIR was not an agency of the Government was reached having regard to the various features enumerated in the judgment in Sabhajit Tewary case but the court did not rest its conclusion on the sole ground that CSIR was a society registered under the Societies Registration Act and on the contrary proceeded to consider various other features of the Council for arriving at the conclusion that it was not an agency of the Government. The Supreme Court ultimately held that ICAR is an instrumentality or the agency of the State and that it came into existence as an integral department of the Government of India and later on became an attached office of the Central Government.

The question whether a co-operative society governed by the Kerala Co-operative Societies Act is an authority coming under Article 12 of the Constitution came up for consideration before a Full Bench of this Court in Bhaskaran v. Addl. Secretary (1987 (2) KLT 903) The Full Bench held:

The Co-operative Societies are not created by the Co-operative Societies Act and they are not statutory bodies. They are only functioning in accordance with the provisions of the Act. These institutions would have legal existence even if the Co-operative Societies Act was not in force, Moreover, the Government have no shares in the Co-operative Societies, There is no deep and pervasive State control. The management of the societies does not vest in the Government or in the representatives of the Government. The management is under the effective control of a committee elected by the members of the societies. The statutory regulation or restriction in the functioning of the societies is not an imprint of State under Article 12.

The writ petitions were dismissed observing that no writ will lie as against a Co-operative Society governed by the Kerala Co-operative Societies Act.

The same question arose before the Punjab and Harajana High Court. A. Full Bench of that in the decision in Ajmer Singh Vs. The Registrar, Co-operative Societies, Punjab, Chandigarh and Others, held that a Cooperative society registered under the Punjab Co-operative Societies Act is not amenable to writ jurisdiction under Article 226 of the Constitution of India. The basic distinction of a statutory corporation cheated by an Act and a society merely incorporated in accordance with the provisions of the Societies Registration Act highlighted in Sabhajit Tewary''s case was noticed and followed by the Full Bench.

The matter has been exhaustively, dealt with by a Full Bench of the Madras High Court in P. Kantian v. The Director of Bandlooms and Textiles, Madras and others (1989 - 1 L.L.J. 588), The question referred to the Full Bench is whether a writ would lie against a co-operative society under Article 226 of the Constitution of India. The Full Bench after an exhaustive survey of the decisions of the Supreme Court and the decisions of the other High Courts held that a Co-operative society is not an authority or an instrumentality or agency of the Government to attract Article; 12 of the Constitution and therefore not amenable to writ jurisdiction under Article 226 of the Constitution. The Full Bench was in agreement with the views expressed by the Full Bench of this Court in Bhaskaran''s case (supra) and those of the Punjab and Haryana High Court in Ajmer Singh''s cases. A Division Bench of the Patna High Court in the decision in Harender Narain Banker v. State of Bihar (1985 Lab IC 1807) has adopted the same view after holding that none of the tests laid down in Ajay Hasia''s case is satisfied to hold the Bihar State Co - operative Marketing Union Limited to be an authority or atleast an agency or instrumentality of the State for the purposes of Article 12 of the Constitution. In that case the State Government had 99 per cent shares in the State Co - operative Marketing Union and 4th Pay Revision Committee was also made applicable to Its employees. The Managing Director of the Union was appointed by the State Government. Still the Division Bench held that those factors were not sufficient to hold that the Marketing Union is amenable to writ jurisdiction.

The settled position therefore is that a Co - operative Society cannot be considered as an authority or agency or instrumentality of the State coming under Article 12 of the Constitution. It has now to be seen whether there has been a change in law by the decision in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, . Appellant No. 1 in that case is a public trust. The trust was running a college at Ahamedabad. The college was permanently affiliated to the Gujarat University. There was some dispute between the university Area Teachers Association and the University about the implementation of certain pay scales. An award was passed by the Chancellor of the university which was accepted by the State Government and the university. The academic staff were under law entitled to terminal benefits, on the closure of the college with effect from 15-6-1975. In spite of repeated representation the benefits were not paid. The teachers moved the High Court for a direction to the trust and its trustees to pay those benefits The High Court directed the trust to make the payments in accordance with the terms stipulated in the Judgment. The appeal preferred by the trust was dismissed by the Supreme Court. The maintainability of the writ petition against the management of the college was one of the questions under consideration before the Supreme Court. After referring to Vaish Degree College case (supra) and Dipak Kumar Biswas Vs. Director of Public Instruction and Others, the Supreme Court observed that the facts before them are quite different. The Supreme Court held that if the rights are purely of a private character no mandamus can issue. If the management of the College is purely a private body with no public duty mandamus will not He. According to the Supreme Court these are two exceptions to mandamus. But once these are absent and when the party has no other equally convenient remedy mandamus cannot be denied. The Supreme Court further observed that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute After referring to a passage in Judicial Review of Administrative Act by Prof. De Smith the Supreme Court observed that the judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ''to reach injustice wherever it is found''. Technicalities should not come in the way of granting that relief under Article 226. The contention on the maintainability of the writ petition was rejected by the Supreme Court.

Relying on this decision learned counsel for petitioner would contend that the words "any person or authority" in Article 226 are not confined to statutory authorities and instrumentalities of the State. They cover any other person or body performing public duty, according to counsel and the society has a positive obligation towards its members. Counsel asserts that a writ of mandamus will therefore lie against the society. In that case the Supreme Court did not express any opinion on the well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute highlighted in the earlier decisions. While considering the issue whether a co-operative society is an authority or agency of the State the important factor to be looked into is the distinction drawn by the Supreme Court between a body created by a statute and a body which after coming into existence is governed in accordance with the provisions of the statute. A Co-operative society does not owe its existence to any statute which would be the fountain head of Its powers. After coming into existence it is governed in accordance with the provisions of the Co-operative Societies Act. The society is governed by the statutory provisions. Still it cannot be said to be a statutory body since it is not a creation of the statute. This distinction was noticed by the Full Bench of this Court in Bhaskaran''s case (supra). In the absence of any observation to the contrary in Rudanf''s case (supra) I am bound to follow the Full Bench decision of this Court in Bhaskaran''s case where it was held that a co-operative society governed by the Kerala Co-operative Societies Act is not an authority or agency under Article 12 of the Constitution and that a writ will not he against a Co-operative society governed by the Kerala Co-operative Societies Act.

Counsel would then rely on the decision of the Supreme Court in Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, . The Supreme Court held that Section 12 of the Delhi School Education Act which makes the provisions of Chapter IV of that Act Inapplicable to unaided minority institutions as discriminatory and void except to the extent that it makes Section 8(2) inapplicable to unaided minority institutions. The Union of India, the Delhi Administration and its officers were directed to enforce the provisions of Chapter IV [except Section 8(2) ] in the case of Frank Anthony Public School. The management of the school was also directed not to give effect to the orders of suspension passed against the members of the staff. This decision is of no assistance to petitioner since the Supreme Court has only declared certain provisions of the Delhi School Education Act which made the provisions of Chapter IV therein inapplicable to unaided minority institutions as discriminatory and void. True the management of the school was also directed not to give effect to the orders of suspension passed against the members of the staff. The Supreme Court was mainly considering the content and dimension of the Fundamental Right guaranteed by Article 30(1) of the Constitution. It was observed that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for imparting education cannot be considered to impinge upon the right guaranteed by Article 30 (1) of the Constitution. The question whether a society registered under the Co-operative Societies Act is an authority or agency coming under Article 12 of the Constitution did not arise for consideration in that case. That decision is therefore of no assistance to petitioner. Similar is the position regarding the other decision cited by the learned counsel reported in Miss Raj Soni Vs. Air Officer in Charge Administration and another, . A question arose whether the recognised private schools in Delhi whether aided or otherwise were governed by the provisions of the Delhi Education Act and the Delhi Education Rules. The dispute was regarding the age of superannuation provided in rule 110 of the Rules. Before the introduction of the rules the age of superannuation was 60 years but that was reduced to 58 with some exceptions where extensions were given upto the age of 60 years. The petitioner in that case was retired on attaining the age of 58 years. She claimed right to continue in service upto 60 years having joined service before the coming into force of the Act. The Supreme Court observed that the respondent management is under a statutory obligation to uniformly apply the provisions of the Act and the rules to the teachers employed in the school. When an authority is required to act in a particular manner under a statute it has no option but to follow the statute. It is further observed that the authority cannot defy the statute on the pretext that it is neither a State nor an ''authority'' under Article 12 of the Constitution. It is stated that the age of superannuation cannot be left to the whims of the employer to enable him to retire different employees at different ages. Whether the school is a State or an authority under Article 12 of the Constitution of India was not considered by the Supreme Court for the reason that it is not necessary to decide that question in the case. The Supreme Court was considering the arbitrariness of a provision in the Delhi Education Rules and it is in that connection that it was observed that a uniform rule has to be followed in the matter of superannuating the employees. That decision also is therefore of no assistance to petitioner.

Attention is also drawn to the decision of Radhaknshna Menon J. reported in 1990 (2) KLT 755Saraswathy Amma v. K.S. Co-op. Bank Denial of promotion as Junior Assistant in Kerala State Co-operative Bank was challenged before this Cour. After referring to Rudani''s Case (supra) this Court observed that there exists a legal right - duty relationship between the employees and the society and as such mandamus cannot be refused to an aggrieved party. Referring to the bye - laws of the bank it is stated that the society is not a private body and management is not vested in a private agency. Even if the management is vested in a private body the affairs of the society are managed by the Board subject to the provisions contained in the Act and the Rules. It is for these reasons that this Court held that the management of the society is not purely a private body with no public duty. The principles enunciated in the earlier decisions of the Supreme Court and the decisions of the other High Courts referred to in this judgment are not seen'' to have been considered by the learned Judge in Saraswathy Amma''s case (Supra). The Full Bench decision of this court in Bhaskaran''s case (supra) has been referred to but not followed or distinguished. The question whether a mandamus can be issued to the bank is seen to have been considered by this Court without deciding the issue whether the bank is a statutory authority and as such a State within the meaning of Article 12. That issue directly arises for consideration in this original petition. The decision in Saraswathy Amma''s case (supra) will not therefore enable petitioner to contend that a co-operative society is an authority or an agency coining under Article 12 of the Constitution.

From the discussions in the foregoing paragraphs the position that emerges is that a co-operative society governed by the Kerala Co-operative Societies Act is not created by the Act and is not a statutory body. The society is no doubt functioning in accordance with the provisions of the Act. But it does not owe its existence to any statute. It can have an existence even if there is no statute. The restriction imposed by Section 94 of the Act is only in trading or carrying on business under any name or title of which the word ''co-operative'' or its equivalent in any Indian language without the sanction of the Government by a person other than a society. The provisions regarding registration of a society are contained in Sections 4 to 8 of the Act. Section 4 enables a society to get itself registered under the Act subject to the provisions of the Act. Request for registration can fie made by a Co - operative Society which has as its object the promotion of the economic interests of its members or of the Interests of the public in accordance with co - operative principles. On presenting the application in the prescribed form and on the Registrar being satisfied that the application complies with the provisions of the Act and Rules and other requirements under the Act he may register the society and its bye-laws. These provisions make it clear that the society does not owe its existence to the Act and that the Act is not the fountain head of the societies affairs. Following the Full Beach decision of this Court in Bhaskaran''s case and the other authorities on this aspect referred to in the foregoing paragraphs it is held that a co-operative society governed by the Kerala Co-operative Societies Act is not an authority or instrumentality or agency of the Government to attract Article 12 of the Constitution. The society is therefore not amenable to the writ jurisdiction under Article 226 of the Constitution.

The next question that requires an answer is whether a writ will lie against an administrator of a Co-operative Society. What is sought to be quashed in this original petition is Ext. P4 circular issued by the General Manager of Kaanur District Co-operative Bank on the basis of the order of the administrator of the bank Counsel for petitioner argues that the administrator is a statutory authority and a writ will lie against an administrator. The decision in O.P. 5337/89 rendered on 18-7-1989 is cited by the counsel. Therein it was held that an administrator is not a co-operative society. He is able to assume the functions of the committee because he is a statutory authority under the Act. The statute clothes him with powers to exercise his functions. It is further held that the administrator is a creature of the statute and the powers enuring to him form the fountain head of the statute. In a later decision reported in 1992 (1) KLT 669-John v. Joint Registrar, this Court held that a writ petition challenging the action of the administrator in exercise of his powers as the managing committee of the co-operative society is not maintainable having regard to the Full Bench decision in Bhaskaran''s case. The relevant provisions contained in Sections 28, 32 and 33 of the Act are not seen adverted to in either of those decisions. The question whether the administrator is a statutory authority or not has to be decided in the light of the provisions contained in Sections 28, 32 and 33 of the Act and the judicial pronouncements on that aspect.

Subsection (1) of Section 28 as, amended by Act 5 of 1992 directs the general body of a society to constitute a committee for a period not exceeding three years in accordance with the bye - laws for the management of the affairs of the society. The period of the managing committee was reduced to three years by that amendment. The third proviso introduced by the amendment stipulates that If the committee bad completed three years or more it shall cease to be in existence at the commencement of the Amended Act and if it has not completed three years or the term as provided in the bye - laws the committee shall cease to be in existence on the expiry of three years or the terra as provided in the bye - laws whichever is earlier. Subsection (1A) introduced by the Amendment enables the Registrar to appoint a new committee consisting of not more that three members of the society or one or more administrator or administrators to manage the affairs of the society in case the committee of the society has ceased to be in existence as provided in third proviso to subsection (1A). Subsection (1B) directs that the committee or the administrator or administrators shall have power to exercise all or any of the functions of the committee of the society subject to the control of the Registrar and to such instructions as he may from time to time give. Section 32 empowers the registrar to remove the managing committee of a society for one or other of the reasons mentioned in that section. On such removal the Registrar can appoint a new committee or an administrator or administrators. An administrator so appointed shall have all the powers of the managing committee subject to the control of the Registrar and to such instructions as he may from time to time give. Section 33 enables the Registrar to constitute a new committee or appoint an administrator or administrators when the term of office of a committee has expired and a new committee has not been constituted. Even in such a case the administrator can exercise all the functions of the managing committee subject to the control of the Registrar and periodical instructions issued by him. The position therefore is that whatever be the circumstances under which an administrator is appointed he has to discharge the functions of the managing committee of the society. As contemplated la subsection (1) of Section 28 the managing committee is constituted for the management of the affairs of the Society. The only restriction imposed in the case of an administrator is that he should function subject to the control of the Registrar and to such instructions as he may from time to time give The question arises whether the administrator becomes a statutory authority merely because of this restriction imposed by the statute. According to me, the answer should be in the negative. The administrator is appointed only for the management of the society till election to the Board of directors of managing committee is conducted. He has therefore to discharge all the functions of the managing committee. In other words, he steps into the shoes of the managing committee and has got all the powers of the managing committee. A Division Bench of this Court had occasion to consider the functions and powers of an administrator appointed under the Act in the decision in George v. Joint Registrar (1985 KLT 836). It was held that the administrator functions as the managing Committee of the society in its absence. The administrator is the dejure committee in power when there is no elected committee. He has thus all the powers of the committee. Since the committee is entitled to enrol new members the administrator also is clothed with the same powers. It is further observed that the powers of the administrator can be curtailed in appropriate case by the Registrar who appoints him or by the court exercising powers under Article 226 of the Constitution. The administrator is not a body subordinate to the committee or Board of Directors. He is the committee or the Board itself. The question that arose for consideration in that case was only whether the administrator appointed to manage the society has the power to admit new members. This question was answered by the Division Bench in the affirmative. It necessarily follows that the administrator has got all the powers of the managing committee and such powers are to be exercised by him subject to the restrictions imposed, viz. the control of the Registrar and the periodical instructions issued by him. Such control by itself will not make him a statutory authority. No doubt the administrator is a Government officer under the direct control of the Registrar. But so long as he functions as the administrator of a society his services are deemed to have been placed at the disposal of the society, and exercises functions of the managing committee in short he is the managing committee itself. When a writ will not lie against the managing committee of a Co-operative Society a writ cannot be sustained against the administrator also.

In this connection learned Government Pleader has drawn attention to the decision of the Supreme Court in S.S. Dhanoa v. Municipal Corpn. Delhi (1981 2 L.L.J. 231). The services of an I.A.S. Officer were placed at the disposal of a co-operative society which is neither a local authority nor a corporation established by or under an act of the Central Government or the Government of a State. The question arose whether he can be treated as a public servant within the meaning of Section 21 of the Indian Penal Code for the purpose of Section 197 of the Code of Criminal Procedure. The Supreme Court held that the expression ''corporation'' must, in the context, mean a corporation created by the Legislature and not a body or society brought into existence by a group of Individuals. A co-operative society is therefore not a corporation established by or under an Act of the Central or State Legislature. The super bazaars managed by the I.A.S. Officer are owned and managed by the society and not the Central Government. The Supreme Court held that these super bazaars are not the instrumentality of the State and that the officer was not employed in connection with the affairs of the union within the meaning of Section 197 of the Code of Criminal Procedure. Reliance was placed on the All India Services (Conduct) Rules and All India Services (Discipline and Appeal) Rules which provide that a member of the Service whose services are placed at the disposal of a company, corporation or other organisation or a legal authority by the Central Government or the Government of a State shall for the purpose of those rules be deemed to be a member of the Service serving in connection with the affairs of the union or in connection with the affairs of the State, as the case may be, notwithstanding that his salary is drawn from the sources other than the Consolidated Fund of India or the Consolidated Fund of that State. On this contention the Supreme Court observed that the legal fiction contained in the explanation is for the limited purpose, viz. "for purpose of these rules" and that these provisions cannot be pressed into service for improving upon the language of clause twelfth of section 21 I.P.C. Supreme Court has thus clearly held that when the services of an I.A.S. Officer are placed at the disposal of a Co-operative Society he was not discharging functions as a public servant. The position here is identical. The administrator has been appointed to discharge the functions of the Managing Committee. The Managing Committee is not a statutory functionary and has to function in accordance with the bye - laws of the society. It is settled law that the bye - laws of a Co - operative Society cannot be held to be law or to have the force of law. This Court in A.K. Janardhanan v. Joint Registrar and others (1990 (1) K.L.J. 477) held that the bye - laws of a Co - operative Society are in the nature of Articles of Association of a company incorporated under the Companies Act binding between the persons affected by them, though not having the force of a statute. The bye-laws also constitute a contract between the Co - operative society and its members in respect of their rights qua members. An administrator appointed under the Act is bound to manage the affairs of the society in accordance with the bye - laws. For that reason also he cannot be considered as a statutory authority.

Following the decision of the Division Bench in George''s case (supra) and agreeing with the views expressed by Viswanatha Iyer. J. in 1992 (1) KLT 669 I hold that the administrator appointed under the Co-operative Societies Act is not a statutory authority but only an officer whose services were placed at the disposal of the society to exercise the functions of the managing committee for ft limited period. No writ will therefore He against the administrator challenging any of his actions in exercise of his powers as the managing committee of the co-operative society.

The Circular issued by the District Manager of the Kannur District Co-operative Bank Ext. P4 is under challenge in this original petition, That is purported to have been issued on the basis of the order of the administrator dated 26-3-1992. In view of my finding that a writ will not lie against an administrator, Ext. P4 circular is beyond challenge in a proceeding under Article 226 of the Constitution of India. That relief asked for in the petition has therefore to be denied. A direction in the nature of a writ of mandamus is sought against the 5th respondent, the Registrar of Co-operative Societies to implement Ext. P1 order issued on 27-12-1983. Since, the relief is not against a co-operative society but in regard to an order passed by the Registrar the writ petition may be maintainable. But the question arises whether the Registrar was acting as a statutory authority in exercise Of the powers conferred on him by the Co-operative Societies Act while issuing Ext. P1 order. By that order the Registrar has requested the Managing Director of the Kerala Co-operative Central Land Mortgage Bank and all Joint Registrars of Co-operative Societies to issue suitable instructions to all primary societies to insist purchase of pumpsets from RAIDCO by those who avail of the loans. A copy of that order is seen to have been marked to the General Manager, RAIDCO, Cannanore. A contention is raised by learned counsel for petitioner that first respondent is bound to comply with that direction and the administrator appointed to manage the affairs of the bank has also to follow the directions contained in Ext. P1. First of all, it has to be noted that Ext. P1 is only a request for issuing suitable instructions to primary societies regarding the purchase of pumpsets from RAIDCO by those who avail of the loans. It appears that 5th respondent has issued a circular on 30-3-1989 requiring all co-operative societies to make it a condition that pumpsets should be purchased from RAIDCO while disbursing loans. This circular was challenged before this court in O.P. 1628 of 1989. This Court quashed the circular. During the pendency of the appeal the circular was withdrawn by the Government. After leaving open the contentions of the respective parties the writ appeal was dismissed. It was made clear that if any such or similar questions arise for consideration at a later stage those questions are to be decided on merits. Thereafter another circular was issued by the Government providing for 20 percent reservation for purchase of pumpsets from RAIDCO. That order was also challenged before this Court in O.P. 8298/90. The petition is still pending. The operation of that order has been stayed. The validity of the circular providing for 20 per cent reservation for purchase of pumpsets from petitioner arises for consideration in that original petition. In these circumstances it is therefore unnecessary to consider in this petition whether a direction can be Issued to 5th respondent to implement Ext. P1 order. That question is left open.

For the aforesaid reasons the original petition is dismissed but in the circumstances without costs.