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[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION( C) No. 33644/2011

Satya Pal Anand ….Petitioner

Vs.

State of M.P. & Anr. …Respondents

J U D G M E N T

A.K.SIKRI,J.

1. The petitioner herein had filed Writ Petition under Article 226  

of the Constitution in the High Court of Madhya Pradesh, Principal  

Seat at Jabalpur,  in the nature of Public Interest Litigation. In  

that petition, the petitioner has challenged the validity of Section  

3 of the M.P. State Co-operative Societies Act, 1960 (hereinafter  

referred to as the Act) to the extent this provision permits the  

State Government to  appoint  the Registrar of the Co-operative  

Society,  as well  as Additional  Registrar,  Joint  Registrar,  Deputy  

Registrar, Assistant Registrar etc. The petitioner also challenged  

proviso added to Section 77 (3)(b) and Section 77 (6) of the Act as  

unconstitutional.  To  put  it  succinctly,  the  grievance  of  the  

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petitioner was that these provisions provide for appointment of  

persons not having any education in law, though discharging the  

judicial function, which was impermissible and ex-facie violative  

of Art. 14 and 21 of the Constitution.  The petitioner had even  

given  suggestion  to  the  effect  that  the  appointments  of  these  

presiding  officers  be made in  manner  presiding officers  of  the  

labour courts are appointed.

2. The  Writ  Petition  was  contested  by  the  respondents  on  

various grounds. In the first place, the very maintainability of the  

Writ Petition was assailed on the ground that the petitioner had  

not  approached  the  High  Court  with  clean  hands  and  had  

suppressed the fact that he was a chronic litigant whose various  

cases were pending before the Cooperative Court.  Therefore, he  

had  personal  interest  in  the  matter.  As  such,  he  was  not  

competent to file the Writ Petition in the nature of PIL. On merits,  

it was submitted that such Registrar, Addl. Registrar etc. function  

under the supervision of M.P. State Cooperative Tribunal (in short  

‘the Tribunal’). The Chairman of the Tribunal is a judicial officer.  

Again,  both  these  authorities  function  under  the  over  all  

superintendence  of  the  High  Court  under  Art.227  of  the  2

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Constitution.  In  several  other  enactments  the  administrative  

officers perform such quasi judicial functions.

3. After  considering the submissions of  both the parties,  the  

High Court repelled the challenge of the petitioner to the vires of  

the aforesaid provisions of the Act and dismissed the Writ Petition  

filed by the petitioner.

4. Against  the  aforesaid  judgment,  present  Special  Leave  

Petition  is  preferred  under  Art.  136  of  the  Constitution.  The  

petitioner has appeared in person and filed written submissions.  

At the time of  arguments,  he referred to and read out certain  

portion of those written submissions and submitted that he did  

not have to say anything more than what is contained therein.  

The learned counsel for the respondents on the other hand relied  

upon  the  reasoning  given  by  the  High  Court  in  the  impugned  

judgment to justify the said order. We have perused the judgment  

minutely and have also gone through the written submissions of  

the petitioner.   

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5. Before  adverting  to  these  submissions,  we  would  like  to  

reproduce the provisions of the Act which are subject matter of  

the present challenge:

“3. Registrar and other officers.- (1)  The  State  Government  shall  appoint  a  

person to be the Registrar of Co-operative Societies  for the State and may appoint one or more officers of  the following categories to assist him, namely:

(a)  Additional  Registrar  of  Co-operative  Societies;

(b) Joint Registrar of Co-operative Societies; (c)   Deputy  Registrar  of  Co-operative  

Societies; (d)  Assistant  Registrar  of  Co-operative  

Societies; (e) Such other categories of officers as may  

be prescribed. xxxxxx     xxxxxx             xxxxxx”

77. Madhya  Pradesh  State  Co-operative  Tribunal.

(3) (b) Of the other two members, one shall  be an officer of Co-operative Department not below  the rank of Joint Registrar and the other shall be non- official  closely  associated  with  co-operative  movement  or  an  Advocate  or  a  Pleader  having  practical  experience  for  a  period  of  not  less  than  fifteen years:

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Provided that if the State Government thinks  fit, the Tribunal may consist of a single person.

xxxx xxxxx xxxxx

(6)  Notwithstanding  anything  contained  in  sub-section (4) the State Government may terminate  at any time, the appointment of the Chairman or a  member if, in its opinion, such Chairman or member  is unable or unfit to constitute to perform the duties  of his office:

Provided  that  no  appointment  shall  be  terminated under this sub-section unless the person  whose appointment is proposed to be terminated is  given  reasonable  opportunity  of  showing  cause  against such termination.”

6. With this, now let us first deal with the argument pertaining  

to the validity of Section 3 of the Act.  As is clear from the above,  

Section 3 deals with appointment of the Registrar of Co-operative  

Societies as well as Additional Registrar, Joint Registrar, Deputy  

Registrar, Assistant Registrar  etc.   As mentioned above, the plea  

of  the  petitioner  is  that  since  Registrar  and  other  officers  are  

performing  judicial  function  under  the  Act,  any  person  to  be  

appointed as Registrar, Joint Registrar etc. has to be necessarily a  

law person, namely, a person who has education in law and is well  

equipped to discharge such adjudicatory functions.

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7. In order to appreciate this contention, we will have to look  

into the functioning of the Office of Registrar under the Act. It is  

elaborately  explained  in  the  impugned  judgment  of  the  High  

Court and no quarrel was made by the petitioner in respect of  

that portion of the judgment explaining the scheme of the Act.  

Therefore, we can briefly restate the same.     Registrar under the  

provisions  of  the Act  is  the executive head of  the cooperative  

movement which is intended to provide strength to the weaker  

sections of the community   and is based on contribution through  

an open door policy. The Registrar is supposed to be “the friend  

philosopher  and  guide”  and  is  required  to  see  that  the  

cooperative movement remains within prescribed limit. Sections 8  

and 9 of the Act empower the Registrar to deal with the question  

of  registration  of  a  society.  Under  Section  10  of  the  Act,  the  

Registrar has the power to classify the societies whereas Sections  

11 and 12 of the Act deal with the power of Registrar with regard  

to amendment of bye-laws of the society.  Section 18 empowers  

the Registrar to direct cancellation of registration of the society  

whereas under Section 18-A of the Act the Registrar can order de-

registration  of  societies.  Under  Section  19-A  of  the  Act,  the  

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Registrar may declare a person ineligible for membership of the  

society.    Section 49-D of the Act deals with the power of the  

Registrar  to  give  direction  to  the  society  to  make  regulations.  

Section  53  of  the  Act  empowers  the  Registrar  to  order  

suppression of the committee of the society in the contingencies  

mentioned in sub-section (1) of Section 53.  Under the aforesaid  

provisions, thus, the Registrar is discharging pure administrative  

functions. Section 57 of the Act deals with the power of Registrar  

to seize records of the society in the circumstances which have  

been specified in sub-section (1) of Section 57. Section 58 deals  

with the power of Registrar to audit or cause to be audited by a  

person  authorized  by  Section  59  of  the  Act  empowers  the  

Registrar to conduct an enquiry into the affairs of the society in  

the circumstances enumerated in Section 59(1).

8. However,  limited  powers  are  given  to  the  Registrar  to  

entertain certain kinds of disputes and take decision thereupon as  

well. One such provision is  Section 55 of the Act which, inter-alia,  

provides that regarding terms of  employment, working conditions  

and  disciplinary  action  taken  by  a  Society,  if  a  dispute  arises  

between a Society and its employees, the Registrar or any officer  7

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appointed by him (not below the rank of  Assistant Registrar) shall  

decide the dispute. Likewise, Section 64 of the Act provides that  

the  Registrar  shall  decide  the  dispute  touching  upon  the  

Constitution, management or business, terms and conditions of  

employment of a Society or the liquidation of the Society.   

9. The  question  that  falls  for  consideration  is  whether  it  

becomes  imperative  to  appoint  a  Registrar  with  legal  and/or  

judicial  backdrop keeping in  view the aforesaid Scheme of  the  

Act? In an endeavour to justify the appointment of a legal person  

to man this office, the petitioner submitted that the very nature  

and significance of the functions discharged by the Registrar or  

his nominee, would manifest that knowledge of law and practice  

is dispensable to effectively carry out those functions inasmuch  

as such presiding officer is supposed to be conversant with the  

provisions of Civil Procedure Code, Law of Evidence, Indian Penal  

Code, Code of Criminal Procedure, etc.  It was further submitted  

that  the  functions  are  such  that  authority  discharging  such  

function is  to be classified as “court” and it  is  so held by this  

Court  in  the  case  of  Thakur  Jugal  Kishore  v.  Sitamarhi  

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Central  Co-operative  Bank  Ltd. AIR  1967  SC  1494.  This  

decision  is  followed  subsequently  in  Mukri  Gopalan  v.  

Cheppilat Puthampurayil Aboobacker AIR 1995 SC 2272 and  

P.Sarathy v. State Bank of India AIR 2000 SC 2023.

10. The petitioner also submitted that the Bombay High Court in  

the  case  of  Maharashtra  Co-operative  Courts  Bar  

Association, Bombay & Ors. v. State of Maharashtra & Ors.  

1990  Mah.L.J.  1064  has  held  that  presiding  officer  of  the  

cooperative court form cadre of subordinate courts as understood  

by Art.234 of the Constitution of India and State Government will  

have  to  take  action  to  make  appointment  of  these  presiding  

officer  in  accordance  with  the  direction  contained  in  the  said  

Article.  In other words, it would mean that they can be selected  

by  the  Maharashtra  Public  Service  Commission  in  consultation  

with  the  High  Court.  On  that  basis,  the  petitioner  pleads  that  

State  Government  should  not  be  given  right  to  appoint  any  

person as the Registrar etc. The petitioner also went to the extent  

of   describing  these functionaries  as  the  “Cooperative  Courts”  

while discharging these duties through no such nomenclature is  

provided in the Act. He also submitted that in the   State of M.P.  9

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functioning of these authorities was dismal, creating unfortunate  

and painful situation which was because the reason that persons  

appointed were blissful ignorant about the legal aspects.  They  

were  not  functioning  “independently”  as  well,  though  

independence of judiciary was the hallmark of the basic structure  

of  the  Constitution.   He  argued  that  with  such  appointments  

impartiality,  independence,  fairness  and  reasonableness  is  

threatened and compromised.  In  support  of this argument,  the  

petitioner has referred to the following judgments.

(2010) 11 SCC 11 : UOI v. R.Gandhi President Madras Bar  

Assn.

(2012) 10 SCC 353:   State of  Gujarat  v.  Gujarat  Revenue  

Tribunal Bar Assn.

(2013) 1 SCC 745:  Namit Sharma v. UOI.

11. We have already taken note of the Scheme of the Act and  

the role and functioning of the office of the Registrar under the  

said  Scheme.  Most  of  the  powers  of  the  Registrar  are  

administrative  in  nature.  While  exercising  those  powers  the  

Registrar  is  not  deciding  any  lis.  He  is  one  of  the  main  

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administrative functionaries for the purposes of carrying out the  

objectives of the said Act. At the same time, the Registrar is also  

give  some  quasi-judicial  powers.  He,  also  for  that  matter  

Additional/Joint/Deputy/Assistant Registrar are, therefore, wearing  

two hats, with predominant role of the administrators. It is not the  

case of the petitioner that the judicial function should be taken  

away from the Registrar and assigned to some other authority.  

The petitioner has pleaded for appointment of a person with legal  

background as Registrar etc. to enable him to decide the dispute  

between the parties more effectively, as according to him, any  

person with no legal/judicial background is incapable of deciding  

those cases. However, same arguments can be pressed by other  

side in a reverse situation.  If a person with legal background is  

appointed to any of  these posts,  then his  appointment can be  

challenged on the ground that such a person though would be fit  

to discharge the quasi judicial duties, but totally unfit to discharge  

other administrative duties which are the primary and day to day  

duties attached to the said office.

12. We would have still given some weightage to the argument  

of the petitioner, had it been a case where order of the Registrar,  11

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deciding   the dispute, was made final.  That is not so. In fact,  

under  Chapter X of the Act,  M.P.  State Cooperative Tribunal  is  

constituted. This Tribunal consists of the Chairman and two other  

Members. In so far as Chairman is concerned, Section 77 (3) (a)  

unambiguously provides that no person shall be qualified to be  

the Chairman of the Tribunal unless he had been a Judge of a  

High Court or has held the office of a District Judge for not less  

than 5 years. Likewise, in respect of two Members of the Tribunal,  

Section 77 (3) (b) contains a clear stipulation that one of them  

shall be an officer of Cooperative Department not below the rank  

of  Joint  Registrar,  and  the  other  shall  be  non-official  closely  

associated with the cooperative movement or an Advocate or a  

pleader having practical experience for a period of not less than  

15 years. With such a composition of the Tribunal, which is given  

power  to  hear  appeals  from the orders  of  the  Registrar  or  his  

nominee, the apprehension of the petitioner is adequately taken  

care of . We find that in addition to hearing the appeals from the  

orders  of  the  Registrar,  the  Tribunal  is  also  given  power  of  

revision  and  review.  Similar  schemes  are  provided  in  various  

other statutes wherein at the first ladder of the lis,  powers are  

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given to the administrative authorities to decide the same with  

provision for appeal against those orders. One example is Public  

Premises (Eviction of Unauthorized Occupants) Act 1971. In such  

cases the orders are passed by the Estate Officer and the order of  

the  Estate  Officer  is  made  amenable  to  challenge  before  the  

District Judge under Section 9 of that Act. Similar position can be  

found under the Land Reforms Act and various other Acts.

13. We emphasize,  at  the cost of repetition,  that most of the  

functions are in the sphere of administration and governance with  

few additional duties having quasi judicial character.  In such a  

situation and more particularly when a Tribunal is constituted with  

all  the trappings of  a court,  we do not find any fault  with the  

provision of Section 3 of the Act empowering the Government to  

appoint persons as Registrars, Joint Registrars, Deputy Registrars  

and  Assistant  Registrars  etc.  necessarily  with  legal/judicial  

background.  Challenge to the vires of Section 3 of the Act is,  

therefore, rejected, upholding the judgment of the High Court on  

this issue for our own reasons given hereinabove.  

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14. In so far as the provisions of Section 77 (3) (b) and Section  

77 (6) of the Act are concerned, we hardly see any reason to hold  

these provisions  as  unconstitutional.  Section 77 deals  with  the  

Cooperative Tribunal. As already pointed out above, this tribunal  

consists of  a Chairman and two other Members. Chairman is to  

be a person with judicial background.  No person is qualified to be  

the Chairman  of the Tribunal unless he had been a Judge of a  

High Court or who held the office of the District Judge for not less  

than 5 years. Two Members of the tribunal are to be appointed as  

per the impugned provisions namely Section 77 (3) (b) of the Act.  

Scheme shows that out of the two, one would be ‘administrative  

member’  and  other  may  be  a  ‘judicial  member’  though  such  

nomenclature is not specifically assigned. However,  it  becomes  

clear from the provision which provides that one of the members  

would  be  the  person  not  below  the  rank  of  Joint  Registrar.  It  

clearly shows that he would be a person who would have worked  

as  Joint  Registrar  and  in  that  capacity  gained  experience  on  

administrative  side  about  the  functioning  of  the  cooperative  

societies.  In  that  capacity,  he  would  have  also  gained  some  

experience of  deciding the disputes between the parties which  

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could be assigned to him. Other member is to be non-official and  

he/ she could be the person who is closely associated with the  

cooperative movement or an Advocate or a pleader with practical  

experience for a period of not less than 15 years. Therefore, other  

members can be a person with legal background.  In nutshell, the  

tribunal consists of a former Judge as Chairman, one member who  

has held high office of Joint Registrar in the department and the  

other  member  either  with  the  legal  background  or  a  person  

closely associated with cooperative movement.  We, thus, do not  

find any fault with this provision as well.

15. In so far as Section 77 (6) of the Act is concerned, it gives  

power to the State Government to terminate the appointment of  

the Chairman or a member if,  in its opinion, such Chairman or  

Member is unable or unfit to perform the duty of his office. Thus,  

this power is given only when the State Government forms such  

an opinion about the inability or unfitness of such Chairman or  

Member  to perform the duties of his office. This opinion may be  

subjective  but  has  to  be  based  on  objective  

consideration/material on record. Since the State Government is  

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in  the  appointing  authority.  It  is  not  an  omnibus  or  

unguided/uncanalyzed  power  conferred  upon  the  Government.  

Further,  the decision is  always subject to judicial  review.  In a  

given case if  the  power  is  exercised arbitrarily  or  without  any  

material on the basis of which such an opinion is formed, it can be  

remedied by the court of law. It is further significant to mention  

that  proviso  to  this  sub-section  (6)  of  Section  77  provides  an  

additional  safeguards  which  mandates  following  procedure  in  

consonance with principle of natural justice by giving reasonable  

opportunity of  show cause against such termination. Thus, when  

such an action  is  contemplated,  the  Government   is  under  an  

obligation  to  issue show cause  notice  which  would  necessarily  

contain  the reasons/material  on the basis  of  which,  a  belief  is  

nurtured that such Chairman or Member would be unable or unfit  

to continue to perform the duties of his office. It would be open to  

the noticee to refute the same by giving suitable reply.   Final  

opinion would be formed only after eliciting and considering the  

defence. Therefore, we see no reason to hold such a provision as  

unconstitutional. In fact, in the written submissions filed by the  

petitioner, there is no plea or ground taken by the petitioner on  

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the  basis  of  which  the  petitioner  seeks  to  condemn  these  

provisions. We, therefore, reject  the prayer of the petitioner qua  

on Section 77 (3) (b) and Section 77 (6) of the Act as well.

16. Having  regard  to  our  aforesaid  discussion,  various  

arguments raised by the petitioner based on the judgments cited  

by him are of no benefit as those judgments have no applicability.  

No doubt the Registrar exercising powers under Section 48 of the  

Bihar and Orissa Cooperative Societies Act is held to be a Court. It  

was so stated in the following manner :  

“It will be noted from the above that the  jurisdiction  of  the  ordinary  civil  and revenue  Courts of the land is ousted under S.57 of the  Act in case of disputes which fell under S.48. A  Registrar exercising powers under S.48 must,  therefore,  be  held  to  discharge  the  duties  which  would  otherwise  have  fallen  on  the  ordinary civil and revenue Courts of the land.  The Registrar has not merely the trappings of  a Court but in many respects he is given the  same  powers  as  are  given  to  ordinary  civil  Courts  of  the  land  by  the  Code  of  Civil  Procedure including the power to summon and  examine witnesses on oath, the power to order  inspection of  documents,  to  hear  the parties  after framing issues, to review his own order  and even exercise the inherent jurisdiction of  Courts mentioned in S.151 of the Code of Civil  Procedure. In such a case there is no difficulty  in holding that in adjudicating upon a dispute  

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referred under S.48 of the Act, the Registrar is  to  all  intents  and  purposes,  a  Court  discharging the same functions and duties in  the same manner as a Court of law is expected  to do.”

However,  it  does not necessarily follow from that the Registrar  

exercising  such  powers  has  to  be  necessarily  a  person  with  

judicial/legal  background.  That  was  not  even  an  issue  in  the  

aforesaid case.

17. In  so  far  as  judgment  in  the  case  of  Mukrigopalan  is  

concerned, the Court therein discussed the power of the appellate  

authority  constituted  under  Section  18  under  Kerala  Building  

Lease  Rent  Control  Act.  In  the  instant  case,  the  appellate  

authority is the tribunal which is headed by a judicial person. The  

judgment  in  R.Gandhi  (supra)  again  pertains  to  the  National  

Company Law Tribunal and the law stated therein, emphasizing  

the need for person with judicial background, is in the context of a  

tribunal. Same is the position in the matter of Gujarat Revenue  

Tribunal Bar Association case (supra).  In so far as Namit Sharma  

(supra) is concerned, much of what is stated therein is watered  

down in the decision dated September 3, 2013 rendered in the  

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Review  Petition  (C)  No.  2309  of  2012  titled  Union  of  India  v.  

R.Gandhi. The Court has gone to the extent of holding that CIC is  

not discharging judicial duties.  

18. We would like to point out that such quasi judicial powers  

are  given  even  to  the  Election  Commission  under  the  

Representation of People Act, 1951 in a matter where it decides  

as to whether to register a political party or not. This was so made  

clear in the case of Indian National Congress (I) vs. Institute  

of Social Welfare & Ors.  2002 (5) SCC 685. Notwithstanding  

that Election Commission under Section 29-A of the said Act is  

required  to  act  judicially  and  the  act  of  Commission,  in  that  

capacity, is quasi judicial, nobody has ventured to say that such  

functions  be  discharged  only  by  a  person  with  judicial/legal  

background.

19. Having  determined  the  question  raised,  we  would  like  to  

emphasize the need for appointment of suitable persons not only  

as Registrar, Joint Registrar etc. but as Chairman and members of  

the  tribunal  as  well.  While  discharging  quasi-judicial  functions  

Registrar,  Joint  Registrars  etc.  have to  keep in  mind that  they  

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have  to  be  independent  in  their  functioning.   They  are  also  

expected to acquire necessary expertise to effectively deal with  

the  disputes  coming  before  them.  They  are  supposed  to  be  

conscious of competing rights in order to decide the case justly  

and fairly and to pass the orders which are legally sustainable. In  

this behalf,  we would like to refer to judgment dated 3.9.2013  

passed in the Review Petition (C) No.2309/2012 (Namit Sharma  

case).  In that case, one unfortunate feature that was noted was  

that experience over the years has shown that the orders passed  

by  Information  Commissions  have,  at  times,  gone  beyond  the  

provisions of the Right to Information Act and that Information  

Commissions  have  not  been  able  to  harmonise  the  conflicting  

interests indicated in the preamble and other provisions of the  

Act. The reasons for this experience about the functioning of the  

Information Commissions could be either that the persons who do  

not  answer  the criteria  mentioned in  Sections  12(5)  and 15(5)  

have been appointed as Chief Information Commissioner or that  

the  persons  appointed  even  when  they  answer  the  aforesaid  

criteria,  they  do  not  have  the  required  mind  to  balance  the  

interests  indicated  in  the  Act.   It  was  therefore  insisted  that  

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experienced suitable persons should be appointed who are able  

to perform their functions efficiently and effectively. In this behalf  

certain directions were given and one of the directions was that  

while  making  recommendation  for  appointment  of  CIC  and  

Information  Commissioners  the  Selection  Committee  must  

mention against name of each candidate recommended the facts  

to indicate his eminence in public life ( which is the requirement  

of the provision of that Act), his knowledge and experience in the  

particular field and these facts must be accessible to the citizens  

as  part  of  their  right  to  information  under  that  Act,  after  the  

appointment is made.  

20. Taking clue from the aforesaid directions, and having gone  

through  the  similar  dismal  state  of  affairs  expressed  by  the  

petitioner  in  the  instant  petition  about  the  functioning  of  the  

cooperative societies, we direct that the State Government shall,  

keeping in mind the objective of the Act, the functions which the  

Registrar,  Joint  Registrar  etc.  are  required  to  perform  and  

commensurate with those, appointment of suitable persons shall  

be made. Likewise, having regard to the fact that the Chairman of  

the Tribunal is to be a judicial person, namely, Former Judge of  21

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the High Court  or the District Judge, we are of the opinion that for  

appointment of the Chairman and the Members of the Tribunal,  

the respondent-State is duty bound to keep in mind and follow the  

mandate  of  the  Constitution  Bench  judgment  of  this  Court  in  

R.Gandhi  (supra).  Thus,  for  appointment  of  the  Chairman  and  

Members  of  the  Tribunal,  the  selection  to  these  posts  should  

preferably  be  made  by  the  Public  Service  Commission  in  

consultation with the High Court.

21. As a result, subject to the aforesaid directions, this Special  

Leave Petition is dismissed.  

    ………………………………………J. (Anil R. Dave)

…………………………………….J.          (A.K.Sikri)

New Delhi, Dated: May 6, 2014

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