Dismissed

Kerala State Co-Op. Rubber Marketing Fed v. Poovarany Service Co-Op. Bank and Anr.

Kerala HC23 Jul 2009WA/1597/2009

Case brief

AI extract

What is this about?

A two-Judge Bench of the Kerala High Court dismissed an appeal challenging a Single Judge's order directing a Co-operative Society to repay a fixed deposit. The court held that a private society discharging a public duty is amenable to writ jurisdiction under Article 226 and affirmed that such jurisdiction extends beyond fundamental rights.

What did the court decide?

The Writ Appeal was dismissed; the direction to repay the deposit and interest granted by the Single Judge was upheld.

Kerala State Co-Op. Rubber Marketing Fed Vs Poovarany… — Cooperative Societies | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR &

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THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR

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THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931

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WA.No. 1597 of 2009()

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AGAINST THE JUDGMENT IN WPC.5333/2009 Dated 29/06/2009

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APPELLANT: IST RESPONDENT IN WP

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KERALA STATE CO-OPERATIVE RUBBER MARKETING FEDERATION LTD., KOCHI, REPRESENTED BY ITS MANAGING DIRECTOR.

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BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI

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SMT.SMITHA GEORGE

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RESPONDENTS: PETITIONER & 2ND RESPONDENT

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POOVARANY SERVICE CO-OPERATIVE BANK LTD., NO. 2882, POOVARANY, P.O.KOTTAYAM, REPRESENTED BY ITS SECRETARY.

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REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.

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BY GOVERNMENT PLEADER SMT. ANITHA

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. BALAKRISHNAN NAIR

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C.T. RAVIKUMAR, JJ.

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W.A. NO. 1597 OF 2009

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Dated this the 23^rd day of July, 2009

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JUDGMENT

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Balakrishnan Nair, J.

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The first respondent in the Writ Petition is the appellant. It is an Apex Society registered under the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as “the Act”). The first respondent/writ petitioner is a Co-operative Bank registered under the said Act. It made a deposit of Rs.10,00,000/- with the appellant - Society. Ext.P1 is the receipt issued for the same. Upon maturity of the said deposit, the first respondent decided to withdraw the amount as per Ext.P2 resolution and by Ext.3, the appellant was called upon to refund the amount with interest. When no action was taken by the appellant - Society, the Writ Petition was filed seeking the following reliefs:

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i. Issue a writ of mandamus or other appropriate writ, order or direction directing the 1^st respondent to repay the amount due under Ext.P1 along with interest forthwith.

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ii. Issue a writ of mandamus or other appropriate writ, order or direction directing the 2^nd respondent to issue appropriate directions to the 1^st respondent to release the amount due under Ext.P1 to the petitioner.

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In support of the above prayers, various grounds were taken. It was submitted that a writ of mandamus can be issued against the Co-operative Society under Article 226 of the Constitution of India. This ground was taken as Ground (G) in the Writ Petition. The appellant filed a counter affidavit resisting the prayers in the Writ Petition. The learned Single Judge, after hearing both sides, allowed the Writ Petition and directed the appellant to repay the amount due to the first respondent under Ext.P1 Fixed Deposit receipt along with interest. A time limit of four weeks was also fixed for complying with the direction. Challenging the decision of the learned Single Judge, this Writ Appeal is filed.

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The learned senior counsel Sri. K. Ramakumar, who appeared for the appellant, mainly canvassed three points before us. Firstly, it was contended that the Writ Petition was not maintainable, as the Society is not amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. Secondly, it was contended that no fundamental right of the first respondent was violated and, therefore, the Writ Petition should not have been entertained. Thirdly, it was submitted that even

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assuming that the Writ Petition is maintainable, this Court should have directed first respondent to invoke the alternative remedy available to it under Section 69 of the Act. Learned senior counsel also submitted that the learned Single Judge found that though the Co-operative Society is not amenable to the writ jurisdiction of this Court, a writ of mandamus can be issued, directing the Society to pay the amount. The relevant portion of the judgment dealing with the point reads as follows:

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“........ One of the plea raised in the counter affidavit is that the respondent is not an authority amenable to the writ jurisdiction of this Court. What is sought for is a writ of mandamus and hence, even if the 1^st respondent is not amenable to writ jurisdiction, since it is discharging public duties, relief sought for can be granted.”

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We have gone through the pleadings and also the submissions made by the learned senior counsel. The duty of the appellant to repay the amount deposited, on its maturity, is a public duty. If there is failure on the part of the appellant to discharge that duty, we feel that this Court, under Article 226 of the Constitution, can ask the appellant to perform that duty. Now, it is fairly settled that a private person discharging a public duty is amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. The above principle of administrative law has been developed by English Courts in R. v. Panel on Take-overs (1987) 1

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All ER 564 and R. v. Criminal Injuries Compensation Board (1967) 2 All ER 770. We notice that the above decisions have been quoted and followed by the Apex Court in Unnikrishnan v. State of A.P. (1993) 1 S.C.C. 645 . So, the nature of the person or the authority is not relevant, but the nature of the duty is important. Since the duty of the appellant to repay the amount deposited with it, on demand, is a public duty, we are sure, the learned Single Judge was fully justified in issuing the direction.

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In this case, the second prayer of the first respondent- writ petitioner was to direct the Registrar, the second respondent herein, to issue a direction to the appellant to refund the amount deposited with it. No one can have any dispute that the appellant - Society is amenable to the directions that might be issued by the Registrar. Normally, this Court should have asked the Registrar to look into the matter and, if found necessary, to issue appropriate directions to the Society. But, in certain cases, this Court itself can issue that direction, which the Registrar would have issued, had he exercised the discretion vested in him correctly: see the decision of the Apex Court in Comptroller and Auditor-General of India v. K.S. Jagannathan (1986) 2 S.C.C. 679 . So, we feel that the direction issued in this case by the learned Single Judge is sustainable in law.

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The appellant further contended that only in case of violation of fundamental rights, can this Court exercise its jurisdiction under Article 226 of the Constitution of India. In support of this contention, the learned senior counsel relied on the decision of this Court in Sofhi v. F.A.C.T. 1984 K.L.T. 32 . In that decision, it was held that a Writ Petition is maintainable against a Government Company, only for enforcement of fundamental rights. We feel that the said decision does not lay down the correct position in law, in view of the decision of the Apex Court in Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani (1989) 2 S.C.C. 691 . The restriction that the Writ Petition is maintainable only for the enforcement of fundamental rights will apply only for a motion under Article 32 of the Constitution of India. As far as the High Court is concerned, it can issue writs to enforce other legal rights against persons, amenable to its writ jurisdiction.

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The third point canvassed is based on availability of alternative remedy to the petitioner. But, once the learned Single Judge has decided to exercise discretion in favour of the first respondent, we can interfere with the same in an appeal filed under Section 5 of the High Courts Act, if

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only it is shown that the discretion exercised by the learned Single Judge is arbitrary or perverse. We find it difficult to describe the exercise of discretion by the learned Single Judge in this case as arbitrary or perverse. The learned Single Judge felt that by raising technical contentions, the appellant was wriggling out of its duty to pay the amount deposited with it. In this case, the learned Single Judge decided to invoke the writ jurisdiction under Article 226 of the Constitution and granted reliefs. So, the appellate court is not justified in interfering with the same.

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Obviously, there is a mistake in the judgment of the learned Single Judge, the relevant portion of which we have have quoted above. What the learned Single Judge meant must be that even if other writs cannot be issued to the Co-operative Society, a writ of mandamus can be issued.

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In the result, the Writ Appeal fails and it is dismissed.

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(K. BALAKRISHNAN NAIR) JUDGE

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(C.T. RAVIKUMAR) JUDGE

sp/

W.A. NO. 1597/2009