Phillip Jeyasingh vs The Joint Registrar of Co-operative Societies and Others

Srinivasan, J.—We are somewhat surprised that this matter has been referred to us once again, though it has been considered by a Full

Bench to which one of us was a party earlier and by judgment dated 22nd January, 1992, the reference had been answered. The judgment is

reported in Philip Jeyasingh v. The Joint Registrar of Co-operative Societies (1992) 1 L.W. 216.

The question referred to that Full Bench was ""can the judgment of the Full Bench in R. Tamilarasan v. Director of Handlooms and Textiles

(1991) 2 L.W. 409 be characterised as ant per incuriam or obiter dicta as opined by the Division Bench of this Court in A. Natarajah v. Registrar

of Co-operative Societies (1991) 2 L.L.J. 296 : (1991) 2 L.W. 420. The question was answered in paragraph 63 of the judgment which reads

thus:

We have no hesitation in answering the question referred to us in the negative and holding that the judgment of the Full Bench in R. Tamilarasan v.

Director of Handlooms and Textiles (1991) 2 L.W. 409 : (1991) 2 L.L.J. 296, is not per incuriam or obiter dicta and the view taken by the

Division Bench in A. Natarajan v. Registrar of Co-operative Societies (1991) 2 L.L.J. 296 : (1991) 2 L.W. 420, is not correct. We hold that the

judgment of the Full Bench is a valid precedent binding on Division Benches and single Judges of this Court as well as subordinate courts.

The last sentence in the judgment clearly holds that the judgment of the Full Bench in R. Tamilarasan v. Director of Handlooms and Textiles

(1991) 2 L.W. 409, is a valid precedent binding on Division Benches, single Judges of this Court as well as Subordinate Courts. Inspite of that

clear direction, this matter has once again been referred to, to a Full Bench by a single Judge who had nothing to do except to follow the Full

Bench in (1991) 2 L.W. 409 (F.B.) and dismiss the writ petition as not maintainable. He has been persuaded to refer the matter again to a Full

Bench in view of the judgment of a single Judge of this Court in K. Ganesan v. Special Officer, Salem Co-operative Sugars Mills Ltd. (1992) 2

L.W. 406, on which reliance was placed by learned Counsel for the petitioner. Referring to the observation in that judgment that the case was

being referred to a larger Bench with a request to the Hon''ble the Chief Justice to constitute a larger Bench, which can go into the correctness or

otherwise of the pronouncements of the Full Bench in Tamilarasan''s case (1989) 1 L.L.J. 588, the learned Judge observed in this case ""since

already the very decision rendered by the Full Bench in this very case has already been referred to the Hon''ble the Chief Justice for consideration

by a larger Bench by P.S. Mishra, J. I have no other go, but to have this matter directed to be posted and considered along with the reference

already made by the learned Judge as referred to above.

The view taken by the learned Judge that he has no other go but to refer the matter to a Full Bench is not correct. In this very case, as noticed

by the learned Judge himself, the Full Bench had already answered the reference and held that the decision in Tamilarasan''s case (1991) 2 L.W.

409 was binding upon the Division Bench as well as the single Judge. The only consequential result of that answer given by the Full Bench was to

dismiss the writ petition as not maintainable. The learned single Judge ought not to have referred the matter to the Full Bench just because another

single Judge has chosen to question the correctness of the later Full Bench also.

Learned Counsel for the petitioner contends that the question whether a writ petition is maintainable as against the Special Officer of a Co-

operative society was not considered in Tamilarasan''s case (1991) 2 L.W. 409, and, therefore, the question was still open to be considered by

the single Judge. According to learned Counsel, it is that question which has now been referred to a larger Bench by the single Judge. We are

unable to accept this contention. In Tamilarasan''s case (1991) 2 L.W. 409, the respondents in one of the writ petitions was the Special Officer of

the concerned co-operative society. The question arose whether the writ petition could be maintained. In fact in paragraph 24 of the judgment, the

question has been considered by the Full Bench in that case. The said paragraph reads as follows:

The issue can be looked from another angle. The Supreme Court in Co-operative Central Bank Ltd. v. Additional Industrial Tribunal (1969) 2

L.L.J. 698, has held that the bye-laws of a cooperative society framed in pursuance of the provisions of the Act cannot be held to be law or to

have the force of law. This also supports the view that a co-operative society is not a statutory functionary. Whether the fact that whenever the

governing body is superseded and in its place a Special Officer or other Government official is appointed to administer the affairs of the society

makes any difference has to be considered now. We are of the view that having regard to the decision of the Supreme Court in S.S. Dhanoa v.

Municipal Corporation Delhi (1981) 2 L.L.J. 231, the position is that it does not make any difference. Any officer appointed in the place of the

governing body stepping into the shoes of the governing body and discharging the functions as such definitely is not a Government servant. In the

case referred to above the Supreme Court has clearly held that when the services of an Indian Administrative Officer are placed at the disposal of

a co-operative society, he was not discharging the functions as a public servant."" There can be no doubt that the Full Bench took the view that the

position would not be different whether the co-operative society is represented by the Board of Directors or a Special Officer. Hence, the

contention that the question was not decided in Tamilarasan''s case (1991) 2 L.W. 409, is not acceptable. This matter has been considered by the

Full Bench in Philip Jeyasingh v. The Joint Registrar of Co-operative Societies (1992) 1 L.W. 216. In paragraph 50 of the Judgment, the Full

Bench referring to Tamilamsan''s case (1991) 2 L,W. 409 said,

Hence, the Full Bench had to consider (1) whether a society managed by a Board of Directors was amenable to the jurisdiction of this Court under

Article 226 of the Constitution of India, and (2) whether a society managed by a Special Officer was amenable to the said jurisdiction.

Thus, it has been held that Tamilarasan ''s case (1991) 2 L.W. 409 decides not only that a writ petition against a cooperative society represented

by Board of Directors is not maintainable but also that a writ petition against cooperative society represented by Special Officer is not

maintainable.

In those circumstances, no question survives for consideration in the present case.

However, learned Counsel for the petitioner submits that the Division Bench judgment in A. Natarajan v. Registrar of Co-operative Societies

(1991) 2 L.L.J. 296 : (1991) 2 L.W. 420, which held that the judgment in Tamilamsan''s case (1991) 2 L.W. 409 was not valid as it was

perincuriam and obiter dictum was challenged in the Supreme Court of India by a Special Leave Petition. Learned Counsel submits that in view of

the fact that the SLP has been dismissed by the Supreme Court after admission, the Supreme Court is deemed to have upheld the view expressed

by the Division Bench in that case. Therefore, it is submitted that the view taken by the Full Bench in Tamilamsan''s case (1991) 2 L.W. 409 as

well as in this case by the later Full Bench is no longer good law. We are unable to accept this contention. A copy of the order of the Supreme

Court in the SLP which was later registered as Civil Appeal No. 4357 of 1991 has been produced before us by learned Counsel for the petitioner.

The order of the Supreme Court in Salem District Co-operative Sector Bank Employ ees'' Union v. A. Natarajan (1992) 2 L.W. 30, reads thus:

All that the High Court has stated is that until the by-laws are changed, the service condition cannot be altered. We see no reason to interfere. The

appeal is, accordingly, dismissed. No costs.

It has been held by the Supreme Court in several leases that mere dismissal of a SLP without giving any reasons will not amount to declaration of

law laid down by the judgment against which the SLP was filed, One such judgment is reported in Supreme Court Employees'' Welfare

Association and Others Vs. Union of India (UOI) and Another, . The Court said that when no reason is given, but a SLP is dismissed simpliciter, it

cannot be said that there has been a declaration of law by the Supreme Court under Art 141. In fact, the said ruling was referred to by the Full

Bench in this case in its judgment dated 22nd January, 1992 in paragraph 58 of the judgment. After referring to a number of decisions of the

Supreme Court, the Full Bench said that the dismissal of a SLP simpliciter without reason will not be a declaration of law by the Supreme Court

and, therefore, the confirmation of the judgment of the Division Bench by dismissal of the civil appeal in the present case will not amount to a

declaration of law that a writ petition against co-operative society is maintainable.

Learned Counsel invites our attention to the judgment of the Supreme Court in Union of India (UOI) Vs. All India Services Pensioners''

Association and Another, . In that case, the court held that if reasons are given by the Supreme Court when dismissing a special leave petition, that

decision becomes binding under Article 141 of the Constitution of India as it declares the law on the subject. In the present case, we have already

quoted the order of the Supreme Court in the civil appeal. We find that the question which is before us has not been considered by the Supreme

Court and no declaration of law has been made by the Supreme Court. Hence, the ruling in Union of India (UOI) Vs. All India Services

Pensioners'' Association and Another, , will not apply to the present case.

Learned Counsel contends that in any case where special leave has been granted and civil appeal has been taken on file and a decision is

rendered dismissing the appeal, it would automatically declare the law on the subject. We are unable to accept that contention. Civil appeal has

been dismissed only on some other ground and not on the ground that a writ petition was sustainable against cooperative society. That question

was not considered by the Supreme Court at all.

Learned Counsel refers to the judgment of the Supreme Court in Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and Others

Vs. The State of Gujarat and Others, . In that case, the Supreme Court held that a Bench of 5 Judges of that Court cannot sit in judgment over the

correctness or otherwise of the views expressed by an earlier Bench consisting of five Judges. Learned Counsel submits that the view expressed in

Tamilarasan ''s case (1991) 2 L.W. 409, could not have been considered by the Full Bench which decided this case earlier by the judgment dated

22nd January, 1992 Philip Jeyasingh v. The Joint Registrar of Cooperative Societies (1992) 1 L.W. 216. The circumstances under which that Full

Bench was constituted have been set out in detail in the judgment of the Full Bench. There is no need to refer to the same in this judgment. The Full

Bench has taken the view that the decision of the Full Bench in Tamilarasan''s case (1991) 2 L.W. 409 cannot, be characterised perincuriam or

obiter dictum and it is a valid precedent. The Full Bench has also pointed out the questions decided in Tamilarasan''s case (1991) 2 L.W. 409.

In the circumstances, the present reference to a Full Bench is not really sustainable, but having regard to the fact that this case has been

pending for quite a long time and the parties will suffer if we send back the matter to be decided by a single Judge once again, we pass the order in

the writ petition itself, by exercising our discretionary power under O.I, Rule 7 of the Appellate Side Rules. We are also of the view that the writ

petition has itself been referred to us. In view of the judgment of the Full Bench in Tamilarasan''s case (1991) 2 L.W. 409, this writ petition is not

maintainable and it is dismissed with costs. Counsel fee Rs. 3,000 to be shared equally by counsel for respondents 1 and 2 and counsel for the

third respondent.