Concept of Instrumentality

" The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute, but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' inArticle-12."

4. In the referring order Katju, C.J. (as he then was) speaking for the Bench has observed that there can be two kinds of co-operative societies - one which can be regarded as an instrumentality of the State within the meaning ofArticle 12 of the Constitution, and the other which is not an instrumentality of the State within the scope of Article 12 of the Constitution. While a writ will lie against a co-operative society falling under the first category, no writ will lie against a co-operative society, which falls under the second category. Whether a co-operative society is an instrumentality of the State under Article 12 of the Constitution or not will depend upon the various tests laid down by the Supreme Court in various decisions, e.g whether there is deep and pervasive control of the Government, extent of the shareholding of the Government, etc. It cannot be laid down as a universal proposition, that no writ can ever lie against a co-operative society. It will depend on the nature of the society and various other factors. Reliance was placed upon the decision of the seven-Judge Bench of the Supreme Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Technology, (2002) 5 SCC 111 and certain other Supreme Court decisions.

5. Thus, the question which falls for our consideration is as to whether a co-operative society registered under the Tamil Nadu Co-operative Soceities Act, 1983 (hereinafter for the sake of brevity referred to as the 'Act') is a private body or falls within the definition of the State or local or other authorities under the control of the Government. A body or organisation which is an instrumentality or agency of the State or a company owned and controlled by the State are all included in the expression the State. If it is found that the co-operative society falls within the latter category, there cannot be any hurdle in holding that such a body or organisation would undoubtedly be amenable to the writ jurisdiction under Article 226 of the Constitution. On the other hand, if it is found that the co-operative society is a private body, in that event it may have to be examined whether a writ petition would be maintainable or not and the extent to which such powers can be exercised.