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Judgment
V.S. Sirpurkar, J.—This judgment will dispose of the aforementioned writ petitions as a common question of law is involved in the same. In
majority of the writ petitions, the validity of G.O.Ms.No.269, Co-operative Department, dated 8.6.1988, is questioned. In the rest, the validity of
the action pursuant to the said Government Order is challenged on the basis of the plea of invalidity of the said Government Order though there is
no prayer for declaring the said Government Order as invalid. In short, all the writ petitions depend upon the validity of the said Government
Order. It is agreed at the Bar by all the concerned lawyers that the writ petitions can be disposed of on the question of the validity of the
aforementioned Government Order alone. It will be, therefore, our task to test the constitutional validity of the abovementioned Government
Order.
We have found practically from all the writ petitions that on the basis of the aforesaid Government Order, the proceedings of inquiry started
under Sec.81 of the Tamil Nadu Co-operative Societies Act, 1983 (hereinafter referred to as ""the Act"" for the sake of brevity) have been
questioned contending that the officers holding those inquiries on the direction of the ""empowered officers"" under the aforesaid Government Order
could not hold legally the inquiries as authorisation in their favour is itself wanting in legal sanction.
The aforementioned Government Order has been issued by the State Government in exercise of the powers conferred by Sec.3 of the Act and
thereby powers specified in entries in column 2 were conferred on the officers specified in column 1 of the table appended to the said order. It will
be beneficial first to see the provisions of Sec.3 of the Act, which reads as under:
The Registrar :- The Government may appoint any officer of the Government to be Registrar of Co-operative Societies for the Slate of Tamil
Nadu or any portion of it or for any class or classes or category or categories of registered societies and may by general or special order, confer
on any other officer of the Government or any officer of any body corporate owned or controlled by the Government all or any of the powers of a
Registrar under this Act.
From the plain language of Sec.3, it will be seen that the Government may appoint any of its officers to be the Registrar of the Co-operative
Societies for the State of Tamil Nadu or any portion thereof or for any classes or categories of registered societies. The latter pan of the Section
authorises the Government that it may, by general or special order, confer on any other officer of the Government or any officer of the body
corporate, which is owned or controlled by the Government, all or any of the powers of a Registrar.
At this juncture, it will be also necessary to see the provisions of Sec.81 of the Act as practically all the writ petitions pertained to the enquiries
initiated under that Section. The relevant portions of Sec.81 are as follows:
Inquiry :- (1) The Registrar may, of his own motion and shall, on the application of a majority of the board or of not less than one-third of the
members or on the request of the financing bank or of the District Collector, hold an inquiry, or direct some person authorised by him by order in
writing in this behalf to hold an inquiry into the constitution, working and financial condition of a registered society or any alleged misappropriation,
fraudulent retention of any money or property, breach of trust, corrupt practice, or mismanagement in relation to that society or into any particular
aspect of the working of that society.
(2) The Registrar or the person authorised by him under subsection (1) shall have the following powers, namely:-
(a)... not relevant...
(b)... not relevant...
(c)... not relevant...
(d)... not relevant...
(e)... not relevant...
(3)...not relevant...
(4) The inquiry shall be completed within a period of three months from the date of ordering the inquiry or such further period or periods not
exceeding three months at a time as the next higher authority may permit provided that such extended periods shall not exceed six months in the
aggregate.
(5) It shall be competent for the Registrar to withdraw any inquiry from the person authorised by him under sub section (1) and to hold the inquiry
himself or entrust it to any other person as he deems fit.
(6) Not relevant.
""Registrar"" is defined in Sec.2(23) of the Act, which runs as under: ""Registrar"" means an officer of the Government appointed to perform the
duties of a Registrar of Co-operative Societies under this Act, and includes any other officer of the Government or any officer of any body
corporate owned or controlled by the Government on whom all or any of the powers of a Registrar under this Act have been conferred u/s 3.
The conjoint reading of these provisions suggests that under Sec.81 of the Act, there is a power in the Registrar to hold the inquiry into the
affairs of the registered societies and the Registrar can also direct some ""other person"", authorised by him, by order in writing, to hold such inquiry.
In so far as the powers while conducting the inquiries are concerned, such ""other person"" authorised by the Registrar to hold the inquiry has the
same power as the Registrar, which include access to the books of accounts, summoning any person for producing such books of accounts, the
power of seizure of such books of accounts, proceeding against any person refusing to comply with the summons, summoning and examining any
person having the knowledge of the affairs of the society, calling and holding a general meeting or meeting of the Board, etc.
What has been done in the challenged Government Order is that the various officers at various levels have been clothed with various powers of
the Registrar and excepting the Extension Officers (Co-operation), the power under Sec.81 is conferred on Additional Registrars, Joint Registrars,
Deputy Registrars and Sub-Registrars. Thus, a power is created in the aforesaid officers not only to initiate and hold inquiries into the affairs of any
registered society but also to direct ""any other person"" to hold such inquiry by authorising him in that behalf and that is precisely what has happened
practically in all the aforesaid writ petitions where the officers clothed with the powers of the Registrar by the aforesaid Government Order have
authorised ""some other officers"" to hold the inquiries into the affairs of the registered societies, conduct of its servants in some cases and office-
bearers in others regarding the financial mismanagement or as the case may be other affairs. With the obvious object of nipping in bud the inquiries,
a plea is raised that the aforementioned Government Order itself is not valid constitutionally thereby the officers could not have been clothed with
the powers of the Registrar under Sec.81 of the Act and, therefore, could not have directed the inquiry to be conducted by ""some other officers
authorising them in that behalf. Grounds of challenge are manifold:
(i) Such ""clothed officers"" are sub-delegates and, therefore, cannot further delegate their functions to ""some other officers"" which have been
delegated to them by the State Government.
(ii) The State Government in clothing the abovementioned officers with the powers has made an ""excessive delegation"" and, therefore, this exercise
of ""excessive delegation"" is constitutionally invalid.
(iii) The language of Sec.3 itself does not permit the conferral of powers by the State Government and the Section has to be read differently.
(iv) This exercise on the part of the State Government would create anomalies in the working of the various provisions of the Act and there would
be clash between the powers of the various officers which powers have been conferred by various provisions of the Act. Though there is no
challenge to the constitutionality of Sec.3 of the Act, feeble arguments were directed in that direction also.
Petitioners were represented by M/s.C.Selvaraju, Jayachandran and Natarajan, who led the arguments on behalf of practically all the others.
The Other learned counsel adopted the arguments by these learned counsel. The State was represented by the learned Additional Advocate
General, Mr. R. Muthukumarasamy, who defended not only the aforementioned challenged Government Order but also strongly urged about the
constitutionality of Sec.3 of the Act. We do not propose to go into the question of constitutionality of Sec.3 as that is not the challenge here. But,
we would have to refer to it incidently as that Section was the basis of the arguments on behalf of the petitioners. We have, therefore, deliberately
quoted Sec.3 on the backdrop of which the aforementioned Government Order was assailed.
As has been said earlier, there is no challenge to the constitutional validity of Sec.3. However, it was haltingly suggested that ""excessive power
has been delegated to the State Government by the Legislature via Sec.3 and while empowering the State Government to clothe its officers with
the powers of the Registrar, no guidelines have been provided and thus a handle is given to the State Government to act ""arbitrarily"" in an
unreasonable manner and, therefore, Sec.3 itself suffered a stigma of constitutional invalidity. The learned counsel are obviously making the
unconstitutionality of Sec.3 as a launching pad for their further argument that the exercise made by the State Government in pursuance of this
provision is also invalid because of the manner in which the State Government has done that exercise.
In the first place, we must point out that a section of the State Act has to be challenged in a proper manner and the arguments regarding its
unconstitutionality cannot be addressed as an ""incidental"" question. The constitutionality of a section of an enactment has to be the main challenge
and it is on that basis, further arguments could be addressed. Here, it is exactly in the reverse order. Be that as it may, we must immediately
observe that apparently there does not appear to be anything wrong with Sec.3 of the Act. It is simply that the power is conferred upon the State
Government by express legislative- will to clothe its other officers besides the Registrar appointed by it via the opening part of Sec.3 with the
powers of the Registrar. In the first part of that Section, the State Government has the power to appoint any of its officers as the Registrar himself
while in the latter part of the Section, the Government is empowered to confer the powers of the Registrar on ""any other officers"". The use of the
words ""any other officers"" is significant. Therefore, while the officer appointed via first part of Sec.3 is a Registrar himself, the officers envisaged in
the latter part are not the Registrars and are essentially ""other officers"" than the Registrar though they enjoy such powers of the Registrar as are
conferred on them by the State. Here again, it is not as if all the powers of the Registrar have to be conferred but, the State Government has a
discretion to confer on such other officer any or all the powers of the Registrar. The condition is that this conferral has to be by a general or special
order. This seems to be the true import of Sec.3.
A perusal of the Act does not show any Section where the powers of the Registrar have been culled out. They are scattered all over the Act.
To name a few - the power to decide certain questions via Sec.7; power to grant registration via Sec.9; power to effect amendment of by-laws
and direct amendments via Secs. 11 and 12; powers regarding division and amalgamation of the society via Sec.13; powers, regarding the transfer
of assets and liabilities amongst the registered societies via Sec.15; power to nominate the Board via Sec.33; power to order the audit or inquiry
under Sec.81 or investigation under Sec.82 or inspection of the books of accounts under Sec.83; power of disqualification and removal via
Sec.36; power to institute disciplinary proceedings against the caderised servants of the societies under Sec.75(4)(b); the appellate powers under
Sec.75(6)(b); power to suspend such paid-officers or servants of the society under Sec.7 and his removal under Sec.77; powers regarding
surcharge under Sec.87 and supersession of the Board under Sec.88; power of appointment of special officers under Sec.89; powers regarding
the appointment of trustees u/s 115; powers regarding winding-up, cancellation of the registration of the society covered in Chapter XV; powers of
execution of decrees, decisions, awards and orders under Chapter XVI; the appellate powers under Sec.152; revisional powers under Sec.153;
general powers under Sec.166 to enforce performance of duties, etc. are the examples of various powers enjoyed by the Registrar in case of
various kinds of co-operative societies such as Agricultural Producers'' Market societies; Agricultural Services Co-operative Societies; Apex
Societies; Central Societies; Consumer Societies; Credit Societies, Primary Societies; Banking Co-operative Societies, etc. The gamut of the
working of the societies and the powers of the Registrar in connection with the affairs of the societies is hugely wide. It is obvious, therefore, that
only one Registrar for the whole State of Tamil Nadu is not contemplated in the scheme of the Act and more particularly under Sec.3. It was
informed during the debate that for the whole State of Tamil Nadu, there are as many as fifteen Registrars appointed in various different spheres.
The learned Additional Advocate General, Mr.R.Muthukumarasamy, took us to a travel of the whole Act to point out the various functions
entrusted by the Act of the Registrars and contended that it is impossible that all the functions could be contemplated to be done only by the single
Registrar. It is clear that the legislature had decided the principles regarding the creation of that office and working of the officers like Registrars
and it has also given the whole blueprint of the functions of the Registrar. Vide Sec.3, the legislature only conferred the power on the State
Government to further confer these powers by clothing various officers with all or some of the powers of the Registrar depending upon the needs
and situation prevailing. The learned Additional Advocate General rightly points out that it would be travesty that high-ranking officer like a
Registrar should be dealing with an insignificant primary co-operative society. It is obvious that by Sec.3 the State Government has been conferred
with the powers to work out the details regarding the exercise of the powers of the Registrar by various other officers and, therefore, the latter part
of Sec.3 was more or the less in the nature of a ""conditional legislation"" and not a ""delegated legislation"". Here was a case where the various
powers of the Registrar have been well-defined in various provisions of the Act and it is only for that purpose that we have travelled through the
whole territory covered by the Act. The contention of the Additional Advocate General is undoubtedly right as we find that the legislature has
defined the duties of the Registrar and his powers. By the latter part of Sec.3, the State is expressly given power to see that those duties are
properly performed and the powers are properly exercised if necessary, by distribution of that power in a reasonable manner in favour of some
other officers. In our opinion, therefore, this is not a case of ""delegated legislation"" but, a case of ""conditional legislation"". In empowering the State
Government to confer the powers of Registrar on any other officers, there is no element of delegation of legislative powers; nor abdication of
legislative power by the legislature. In fact, by enacting the latter part of Sec.3, the legislature has expressly sanctioned the execution of the
functions of the Registrar by some other officers. All that the legislature has further done is that it has left to the Government to choose those other
officers for discharging the functions of the Registrar. In that sense, the user of the powers of the Registrar by the other officers, who are not
actually the Registrar, has been made ""conditional"" on the State Government conferring the powers of the Registrar on those other officers by a
general or special power. The power of the State Government created by Sec.3 is also not an untrammeled power. It is only the functions of the
Registrar under the Act to which we have alluded earlier which could be entrusted to such other officers. Therefore, the legislature has left it to the
discretion of the State Government as to who could also exercise the powers of the Registrar which cannot be deemed to a ""delegated legislation"".
For this purpose, we rely on the decision reported in Tulsipur Sugar Co. Ltd. Vs. The Notified Area Committee, Tulsipur, where the Apex Court
has taken the stock of the earlier cases on the question of ""delegated legislation"" and ""conditional legislation"" including Queen v. Burah, 1878 (5)
I.A.178; In re The Delhi Laws Act, 1912 1951 SCR 747; Bangalore Woollen, Cotton and Silk Mills Co. Ltd., Bangalore Vs. The Corporation of
The City of Bangalore by its Commissioner, Bangalore City, and Basant Kumar Sarkar and Others Vs. Eagle Rolling Mills Ltd. and Others, .
In Tulsipur Sugar Co. Ltd. Vs. The Notified Area Committee, Tulsipur, , the Apex Court heavily relied on the last mentioned case of Basant
Kumar Sarkar and Others Vs. Eagle Rolling Mills Ltd. and Others, , which we may quote here:
In Basant Kumar Sarkar and Others Vs. Eagle Rolling Mills Ltd. and Others, , this Court was required to consider the question whether Section
1(3) of the Employees'' State Insurance Act, 1948 was valid. One of the contentions urged by the appellants in that case was that the said
provision suffered from the vice of excessive delegation on the ground that the power given to the Central Government to apply the provisions of
that Act by notification, conferred on the Central Government absolute discretion, the exercise of which was not guided by any legislative provision
and was, therefore, invalid. Gajendragadkar, C.J. rejected the above contention with the following observations:-
We are not impressed by this argument. Section 1(3) is really not an illustration of delegated legislation at all; it is what can be properly described
as conditional legislation. The Act has prescribed a self-contained code in regard to the insurance of the employees covered by it; several remedial
measures which the Legislature thought it necessary to enforce in regard to such workmen have been specifically dealt with and appropriate
provisions have been made to carry out the policy of the Act as laid down in its relevant Sections. Section 1(3) of the Act purports to authorise the
Central Government to establish a Corporation for the administration of the scheme of Employees'' State Insurance by a notification. In other
words, when the notification should be issued and in respect of what factories it should be issued, has been left to the discretion of the Central
Government and that is precisely what is usually done by conditional legislation. What Lord Selborne said about the powers conferred on the
Lieutenant Governor by virtue of the relevant provisions of Act 22 of 1869 in Queen v. Burah, 5 I.A. 178, can be said with equal justification
about the powers conferred on the Central Government by S. 1(3)"".
The observations by Gajendragadkar, C.J. do show that where the Act has prescribed a self-contained code and has laid down the general
principles and where appropriate provisions have been made to carry out the policy of the Act via various provisions of the Act, a provision for
working out the details of those principles and empowering the Government or any other authority for that purpose would not amount to the
delegated legislation"" but can be essentially called ""conditional legislation"". We have no doubts that that is precisely the scheme of the present
section also.
The following observations of Fazal Ali, J. in State of Bombay Vs. Narothamdas Jethabai and Another, highlight the difference between
conditional legislation"" and ""delegated legislation"". Here the Apex Court was considering the validity of Sec.4 of the Bombay City Civil Courts Act
whereby the power was given to the Provincial Government to invest the city civil courts with jurisdiction to receive, try and dispose of all suits and
other proceedings of the civil nature arising within Greater Bombay and of such value not exceeding Rs.25,000. The learned Judge observed as
follows:
As several of my learned colleagues have pointed out the case of Queen v. Burah, 1878 (3) A.C. 889: 4 Cal. 172, the authority of which was not
questioned before us, fully covers the contention raised, and the impugned provision is an instance of what the Privy Council has designated as
conditional legislation, and does not really delegate any legislative power but merely prescribes as to how effect is to be given to what the
Legislature has already decided. As the Privy Council has pointed out, legislation, conditional on the use of particular powers or on the exercise of
a limited discretion entrusted by the Legislature to persons in whom it places confidence, is no uncommon thing, and in many instances it may be
highly convenient and desirable. ...
Even here we have already pointed that the Legislature has precisely defined the rights of the Registrar and they being wide and scattered all over
the Act, the legislature has also expressed in the second part that even the other officers may be allowed to use those powers. If the Legislature
confided a power into the Government to distribute those powers to some other officers for the better working of the Act, then the exercise has to
be dubbed as ""conditional legislation"" and cannot be deemed to be ""delegated legislation"".
The natural fallout of this would be that the State Government would not be a ""delegatee"" and the officers on whom those powers are
conferred cannot be deemed to be ""sub-delegatees"". If the creation of power in the Government cannot be deemed as a ""delegated legislation"", it
is obvious that there can be no criticism of ""excessive delegation"" or ""sub-delegation"". Thus, the argument on behalf of the petitioners in this behalf
must fail and, therefore, the impugned Government Order, which emanates from the State Government by the power under Sec.3 of the Act,
cannot be said to be a piece of ""delegated legislation""; nor could the officers empowered therein be called ""sub-delegatees"" so as to be unable to
exercise the powers under Sec.81 of the Act which have been conferred upon them amongst the other powers by the questioned Government
Order.
A wild criticism was made by the learned counsel for the petitioners, Mr. C. Selvaraju, that the State Government had made an excessive
delegation in clothing the said officers with the powers and he tried to rely on the decision in The Consumer Action Group and Another Vs. State
of Tamil Nadu and Others, . This was a case where Sec.113-A of the Tamil Nadu Town and Country Planning (Amendment) Act, 1998 was
attacked as a piece of excessive delegation. The learned Judges, however, did not accept the contention that it amounted to excessive delegation
as the learned Judges found that there were enough guidelines which could be gathered from the Preamble, Statement of Objects and Reasons and
other provisions of the Act and Rules. It was held that the courts have to discover while considering such a challenge whether there is any
legislative policy, purpose of the statute or indication of any clear-will through its various provisions and if there be any, then this by itself would be
a guiding factor to be exercised by the delegatee. The Court further held that if there was enough guidance provided on account of the factors
abovenamed then it cannot be said that a power created in a delegatee is unbridled or uncanalised. It was held that power under Sec 113-A was
not a unbridled or uncanalised power and was controlled through a policy and such policy also provided an inbuilt check or guidance though the
Court struck down the Government Orders providing exemption to various persons. In so far as the constitutionality of Secs.113 and 113-A was
concerned, it held that merely because the delegate might have misused the powers that by itself could not invalidate the legislation on account of
excessive delegation of powers. This is what the Court said in that decision:
There is a clear distinction between a provision to be ultra vires as delegation of power being excessive and the exercise of power by such
delegatee to be arbitrary or illegal Once the delegation of power is held to be valid the only other question left for our consideration is, whether the
power exercised by the Government in passing the impugned sixty-two GOs u/s 113 could be said to be arbitrary or illegal.
There can be no question about the principles. However, the ruling helps the respondents more than the petitioner. Firstly, even if it is presumed
that Sec.3 is a piece of delegated legislation, it answers all the tests shown in the ruling. Secondly, there is no scope to the State Government to
abuse or misuse the so-called delegated power which we have shown earlier.
The other rulings relied upon by Mr.Selvaraju are Marathwada University Vs. Seshrao Balwant Rao Chavan, and Abhay Shridhar Ambulkar
Vs. S.V. Bhave, Commissioner of Police and Others, are not appposite. He also relied on the decision reported in Mahe Beach Trading Co. and
Others Vs. Union Territory of Pondicherry and Others, , where the Supreme Court has held that where a policy is indicated by the Legislature by
explaining its will on a particular subject-matter and only the effectuation of that policy is left to the subordinate or subsidiary or ancillary legislation
retaining the control with the Legislature itself then that would not amount to abdication of legislative power or excessive delegation of power. In
fact, the observations support the validity of the present legislation for the reasons we have already shown.
Relying on the reported decision in A.K. Roy and Another Vs. State of Punjab and Others, , Mr. Selvaraju tried to argue that there the
impugned notification issued by the Food (Health) Authority was declared as ultra vires since the officer who issued that notification, viz. Food
(Health) Authority had purported to delegate his powers to launch prosecutions for an offence under the Act under Sec.20(1) to the Food
Inspector. The learned counsel wanted to draw parallel on facts with this case. However, in this case, there is a clear finding that the Food (Health)
Authority could not have further authorised any person like the Food Inspector, Faridkot to authorise the prosecution. The observations in
paragraph 9 are telling. They are as follows:
It is therefore clear that the Food Inspector is not a person who has been authorised by any general or special order issued by the Central
Government or the State Government. There would be no problem if the State Government were to issue a notification under Sec.20(1) to launch
prosecutions for an offence under the Act as is the practice in the other States. ""(Italics supplied)
Therefore, on facts, this ruling will be of no help to the learned counsel.
We have also found that there is absolutely no challenge even to the provisions of Sec.81. Once it is held that the Government could clothe
such other officers than the Registrar with the powers of Registrar, it is obvious that Sec.81 is one such power which could be conferred upon such
other officer. Once the duly clothed officer initiates an inquiry and/or direct any other officer under him to hold the inquiry, there can be no
complaint about the same. Then the officer so clothed with the powers of the Registrar is using the powers perfectly within the framework of
Sec.81 of the Act. If the Registrar could have exercised that power by directing some other officer to hold the inquiry, the same power will have to
be necessarily seen in such other officer who has been clothed with the powers with the aid of the impugned Government Order. It is for this
purpose alone that we have extensively quoted Sec.81 of the Act in the earlier part of our judgment. The only other thing which has to be seen is
as to whether such other officer acts within the parameters of Sec.81(1) of the Act - for example, whether such authorisation has been done by
him in writing. That by far appears to be the only condition for creating such authorisation. The order in writing authorising such officer would
certainly provide an inbuilt check against the Registrar or any such other empowered officer from acting arbitrarily. Therefore, it cannot be said that
the State Government in issuing the impugned Government Order and empowering various other officers thereunder had granted unbridled or
uncanalised powers to such other officers and no fault can be found against the Government Order on this count also.
In fact, there was very little which was said against the aforementioned Government Order excepting to suggest that such Government Order
amounted to ""excessive delegation"" of powers by the State Government in favour of such other officers. We do not think so for the obvious
reasons which we have given above. The learned counsel all the time centered round the power under Sec.81 and its possible misuse. Perhaps
because that is a common thread in all these petition. It cannot again be ignored that under Sec.81 of the Act all that is required to be done is only
the inquiry regarding the constitution, working and financial condition of the society or any alleged misappropriation, fraudulent retention of any
money or property, breach of trust, etc. in relation to the society. It is only when such inquiry is completed that the subsequent quasi-punitive
eventualities like an action under Sec.82 or the surcharge proceedings under Sec.87 may follow. There are inbuilt guidelines in Sec.82 as well as
Sec.87 also and the orders passed for levying and recovering the surcharge under Sec.87 is again made appealable u/s 152. Therefore, merely
because any other officer is allowed to enjoy a power under Sec.81, it does not mean that it is an ""excessive delegation"" in his favour. We are,
therefore, convinced that the said Government Order cannot be deemed to be a piece of ""excessive delegation"" and there is nothing wrong if such
officers exercise the powers under Sec.81 of either himself conducting the inquiry or authorising some other officer to conduct the same after taking
a decision to ""initiate"" the inquiry. It must be remembered here that the discretion to initiate an inquiry under Sec.81 lies only with the ""Registrar"" or
such ""other officer"" who is conferred with the power by the impugned Government Order. Though this power can be exercised suo motu, there is
also further check that these powers could be exercised on application of majority of the Board members or of not less than one-third of the
members or on the request of the financing bank or of the District Collector. This provision also, therefore, works as a check on the so-called
untrammelled discretion of the ""Registrar"" or as the case may be the ""other officers"" who have been clothed with the powers of the Registrar to
initiate inquiry and to authorise any other officer to conduct the same. In that view, we must hold that in clothing the ""other officers"" with the powers
of the Registrar, there is no excessive delegation by the State Government nor is there any impermissible sub-delegation. The language of the latter
part of Sec.3 and Sec.81 is enough to repel the contention. The first two contentions raised in this behalf, therefore, are rejected.
As regards the third contention, learned counsel, Mr.Natarajan, firstly drew our attention to the language of Sec.3. His initial contention was
that firstly the State Government had no power to issue such Government Order as the language of the Section did not permit it. The learned
counsel urged that the second part of the section which permits the State Government to confer such powers of the Registrar on any other officer
of the Government by general or special order is in the nature of an alternative. According to the learned counsel, the State Government cannot do
this if it has already appointed a Registrar of Co-operative Societies for the State of Tamil Nadu as per the first part of the Section. In short, the
contention is that the clause ""and may by general or special order, confer on any other officer ..."", which starts with ""and"" should be read starting
with ""or"". We are mentioning the contention only to be rejected because under the established canons interpretation of statutes, we cannot
substitute our words in place of the words used by the Legislature. We do not see as to why we should read the word ""or"" in the place of ""and"".
Mr.Natarajan also relied on the decision reported in Union of India and others v. Filip Tiago De Gama of Vedem Vasco De Gama AIR 1990
SC 981 and more particularly the observations in paragraph 17, which are to the following effect:
If the strict grammatical interpretation gives . rise to absurdity or inconsistency, the Court could discard such interpretation and adopt an
interpretation which will give effect to the purpose of the legislature. That could be done if necessary even by modification of the language used.
(See : Mahadeolal Kanodia v. The Administrator General of West Bengal, 1950 (3) SCR 578 : AIR 1950 SC 936. The legislators do not always
deal with specific controversies which the Court decide. They incorporate general purpose behind the statutory words and it is for the Court to
decide specific cases. If a given case is welt within the general purpose of the legislature but not within the literal meaning of the statute, then the
Court must strike the balance.
There can be no question about the principles involved. But, even otherwise, under Sec.3 we do not see any absurdity or inconsistency on account
of the user of the word ""and"" in that Section. The Section is perfectly consistent that the State Government may appoint a Registrar and by second
part of the Section, the State Government may also confer the powers of the Registrar on some other officers. We do not see any inconsistency in
this and, therefore, the contention is rejected.
The other case relied upon by American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd. and Another, , is not at all apposite to
either the contention raised or even to the controversy involved herein.
This takes us to the last contention, viz., that the said Government Order was bad as the clothing of the powers of the other officers with the
powers of the Registrar would create anomalies in the working of the various provisions of the Act and there would be a clash between the powers
of the various officers. We will take the second part of the contention first.
The last leg of the argument was that empowering of such other officers would create anamolies in the working of the Act, thereby the
subordinate officers so empowered would be able to override the superior officers and there will be too many officers working and exercising
jurisdiction in the same fields. It was tried to be suggested that the power under Sec.81 was given by the impugned Government Order to
practically all the officers including the Additional Registrars, Joint Registrars and Deputy Registrars and, therefore, if a Joint Registrar had initiated
an inquiry which could be set at naught by using parallel powers by a Deputy Registrar and thereby a confusion could be created and for that
purpose also, the Government Order was bad.
Now it will be seen that though the powers under Sec.81 are enjoyed by the Additional Registrars of Co-operative Societies, Joint Registrars
of Co-operative Societies and Deputy Registrars of Co-operative Societies, it is not as if any Deputy Registrar is entitled to use his powers in
respect of any other society. The learned Additional Advocate General pointed out to us that the Additional Registrars and Joint Registrars as well
as Deputy Registrars would have to act within their own jurisdiction. For example, a Deputy Registrar of Madurai area could not have exercised
his powers in respect of a society which is beyond his territorial jurisdiction. The learned Additional Advocate General was at pains to point out
that while appointing the Deputy Registrars, their area of operation and the kind of society that they could operate are always provided by the
Government.
Our attention was drawn at various notifications wherein it was pointed out that even in respect of higher officials like Additional Registrars and
Joint Registrars, their appointments were in respect of various categories of societies. For example, our attention was drawn to G.O.Ms.No.185
dated 25.4.1988. This notification clearly brings out the position that under Sec.3 itself the Government had appointed officers to be the Registrars
of the Co-operative Societies for the several departments and only in respect of particular category of Co-operative Societies under their
administrative control. For example, the Director of Fisheries Department could deal only with Fishery Co-operative Society while the Chief
Executive Officer of Tamil Nadu Khadi and Village Industries Board could deal only with the Industrial Co-operatives including Khadi Co-
operatives. So also, the Director of Animal Husbandry Department could deal only with all types of Sheep Breeding Co-operative Society, Duck
Breeders Co-operatives, Piggery Breeders Co-operative Society, etc. The learned Additional Advocate General pointed out that in sofar as the
appointment of the Registrar was concerned, there were different officers who were appointed as the Registrar under the first part of the Section
and they operate and were expected to operate only in respect of the kind or class of society in respect of which they were appointed as
Registrars. The learned Additional Advocate General also emphasised that there could be no clash of territorial jurisdiction also as the notifications
clearly indicated the area of operation of the Registrars. The learned Additional Advocate General further pointed out that even under the
impugned Government Order adequate care has been taken to clothe other officers with the powers of the Registrar to see that there would be no
clash of territorial powers or the other kind of powers. For example, it was pointed out that a Joint Registrar of Co-operative society may have the
power under Sec.81 particularly in respect of any registered co-operative society but, that any registered co-operative society would necessarily
be under his territorial jurisdiction. A look at the said notification itself suggests that adequate care has been taken while distributing the powers as,
for example, Extension Officers (Co-operation) have been given the powers only in respect of Primary Co-operative Societies and that power is
also controlled by clothing him with only few powers under the Act. It is only reasonable that an Extension Officer, who is relatively a junior officer
in the hierarchy, should exercise the powers only in respect of small co-operative societies like Primary Co-operative Societies while the relatively
superior officer like Co-operative Sub-Registrar should exercise the power in respect of other societies.
It is also pointed out by the learned Additional Advocate General that the monetary jurisdiction in respect of such societies was also well
controlled inasmuch as while the Extension Officer had the jurisdiction in respect of primary co-operative societies alone of monetary disputes
involving a sum not exceeding Rs.10,000, the Co-operative Sub-Registrar, who is relatively a superior officer, could exercise the powers in
respect of monetary disputes involving a sum not exceeding Rs.10,000 of any registered society meaning thereby, that there was a careful
application of mind while distributing the powers of the Registrar to such other officers.
The learned Additional Advocate General also pointed out that obviously there were other checks in the Act to see that the concerned officers
did not act ""extra territorially"". There were other notifications pointed out to us like G.O.No.369 dated 22.8.1939; G.O.Ms.No.370, dated 22-8-
1989; G.O.Ms.No.31 dated 8.1.1990 as also G.O.Ms.No.32 dated 8-1-1990. All these Government Orders pertained to various kinds of
societies separately and the officers named therein are also specified by their nomenclature. The learned Additional Advocate General, therefore,
pointed out that there were no scope for any clash of powers or the clash of jurisdiction in respect of the exercise of the powers. The argument is
undoubtedly correct. In addition, we may say that there are enough checks in the Act. There is always a scope for exercise of appellate powers
and revisional powers by the higher officers as also by the State Government. Therefore, there will be no question of the misuse of the powers. At
any rate, as was pointed out by the Supreme Court in Consumer Action Group case, cited supra, the individual action can always be taken care of
by the parties who feel that injustice has been caused to them on account of misuse of powers by a certain officer. For that purpose, it is not
necessary for us to find fault with the challenged Government Order itself and to invalidate the same. Even the Apex Court has followed the same
course by invalidating the actions alone taken by the Tamil Nadu Government in wantonly exempting and regularising certain constructions. There
is always a power in the Act to correct the mistakes. The clothing of the other officers with the powers of the Registrar, therefore, need not be
faulted with. In effect, even this argument has to fail.
It is clear that all the challenges are without any substance and all the writ petitions, which depend upon the argument of invalidity of
G.O.Ms.No.269, Co-operative Department, dated 8.6.1988, must fail.
It was argued by the learned Advocates that besides the invalidity, in some of the writ petitions the questions of facts were involved, on the
basis of which the inquiry was challenged. For example, it was pointed out that in some cases the inquiry was belated or was not completed within
the prescribed timeframe as provided in. Sec.81 and in some matters the other factual challenges were there. We only say that such other
grievances could be made only after the completion of the inquiries and it will be perfectly permissible for the parties involved to complain about
the illegality of the inquiry either to the officer holding the inquiry or to the appellate or revisional officer. That need not detain us. We grant such
liberty to all the parties to raise all the other points on facts before the respective authorities. In fact, in our opinion, the inquiry by itself need not
create a cause of action. It is only the outcome of the inquiry, if sought to be acted upon. Even then, the parties would have their own remedies as
provided in the Act. That aspect we have already considered earlier in the judgment. In our view, all the challenges other than the challenge to the
legality of the impugned G.O.Ms.No. 269, dated 8.6.1988 would be premature. On that count also, all the writ petitions are liable to be dismissed
and are hereby dismissed. Under the circumstances, there shall be no order as to the costs. Connected W.M.Ps are closed.