SARDAR ALI KHAN, J.

( 1 ) A Division Bench of this Court while dealing with the question of the right of a divorced woman to claim maintenance under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as `the Act ) has referred the matter for the Full Bench on certain questions arising about the right of such Muslim divorced women to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter referred as `the Code ) from her former husband even after the enforcement of the aforesaid Act. The Division Bench felt that the matter involves substantial questions of law of general importance having a far-reaching effect and therefore it should be placed before a Full Bench for an authoritative pronouncement on the matter. The questions to be considered by the Full Bench are as follows : (1) Whether a divorced Muslim woman can claim maintenance under Section 125 of the Code from her former husband even after passing of the Act of 1986? (2) Whether the maintenance contemplated under Section 3 (1) (a) of the Act of 1986 is restricted only for the period of `iddat or whether a fair and reasonable provision has to be made for future also within the period of Iddat? (3) How far Sections 125 to 128 of the Code can be held to be applicable after coming into force of the Act of 1986 and what should be the mode of disposal of the cases pending before the Courts under these Sections?

( 2 ) THE above three questions will therefore have to be considered by this Full Bench in the light of the provisions of the Act of 1986, the principles of Mohammadan Law and the provisions of Sections 125 to 128 of the Code.

( 3 ) THE main question with regard to the right of a divorced Muslim woman for maintenance under Section 125 of the Code from her former husband after passing of the Act of 1986 and deserves to be taken up first for consideration (sic) hinges around Section 3 of the Act. Before going to the intricacies of Section 3 of the Act of 1986, it would be necessary to consider the aims and objects for which the Act of 1986 has been passed.

( 4 ) THE decision of the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 (for short, Shah Bano case) created a furore among the Muslim community of India who agitated strongly against the decision on the ground that it sought to abrogate the principles of Muslim law with regard to maintenance payable to a divorced Muslim wife. In the wake of the protests made against the said decision, the Parliament passed the Act of 1986. It would be in the fitness of things to make a reference to the objects and reasons of the said Act which clearly brings out the circumstances under which the Act was passed and indicates the objects which it seeks to achieve. A perusal of the statement of objects and reasons shows that in the very first sentence it is stated that the Supreme Court in Shah Bano case has held that although the Muslim law limits the husband s liability to provide for maintenance of the divorced wife to the period of Iddat, it does not contemplate or countenance the situation envisaged by Section 125 of the Code. The Court held that it would be incorrect and unjust to extend the above principle of Muslim law to cases in which divorced wife is unable to maintain herself. The Court, therefore, came to the conclusion that if the divorced wife is able to maintain herself, the husband s liability ceases with the expiration of the period of Iddat, but if she is unable to maintain herself after the period of Iddat, she is entitled to have recourse to Section 125 of the Code. The above statement is almost taken verbatim from the statement of objects and reasons and it clearly highlights two points which must be kept in mind for the purpose of a decision in the instant case. The first principle which has been recognised in the statement of objects and reasons of the Act of 1986 is that the Muslim law limits the husband s liability to provide maintenance to the divorced wife to the period of Iddat only. However, the Supreme Court held that if the divorced wife is unable to maintain herself after the period of Iddat, she is entitled to have recourse to Section 125 of the Code. This in effect means that the decision in Shah Bano case (AIR 1985 SC 945) overrides the well established principle of Muslim law that the husband of a divorced Muslim wife is not liable to pay maintenance under any circumstances beyond the period of Iddat. The statement of objects and reasons further states that the decision in Shah Bano case had created some controversy and it has become necessary to specify the rights to which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests. Thereafter, the statement of objects of reasons proceeds to give the glaring features of the Bill which was introduced in the Parliament and was subsequently passed as the Act of 1986.

( 5 ) THE main object of delving at length on the statement of objects and reasons of the Act of 1986 is to highlight the point that the Act has been passed in the wake of the decision of the Supreme Court in Shah Bano case (AIR 1985 SC 945) and seeks to remove the difficulties that have arisen as a result of that decision in regard to the liability of the husband to pay maintenance to his divorced Muslim wife. We would, therefore, like to approach the provisions of the Act which call for consideration in this case in the backdrop of events which led to passing of the Act of 1986.

( 6 ) IT is an accepted principle of the interpretation of statutes that the historical setting of the enactment of a legislation is a relevant factor to be taken into consideration for finding out the precise aim and object for which the legislation has been enacted. In the case of Home v. Guy, (1877) 5 Ch D 901 at p. 905 Sir George Jessel M. R. laid down the principle that :"the Court is not to be oblivious of the history of law and legislation, and I have cited from the authorities to which I have referred to show that such is the case the history of law and legislation. Although the Court is not at liberty to construe an Act of Parliament by the motives which influenced the Legislature, yet when the history of law and legislation tells the Court and prior judgments tell this present Court what the object of the legislature was, the Court is to see whether the terms of the Section are such as fairly to carry out that object and no other, and to read the section with a view of finding out what it means, and not with a view to extending it to something that was not intended. "it is also relevant to note that in the famous case Re Mayfair Property Co. (1898) 2 Ch 28 at p. 35, Lindley M. R. said :"in order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon s case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide and the remedy provided by the statute to cure that mischief. "

( 7 ) IT may not be necessary to multiply the well established authorities of great antiquity and reputation to emphasise the point that a piece of legislation like the Act of 1986 is therefore to be viewed in its proper historical perspective to ascertain the precise intention of the Parliament in promulgating the Act.

( 8 ) IT is necessary to reproduce some of the provisions of the Act which are relevant for the purpose of this case. Section 2 (a) defines "divorced woman" in the following terms : "divorced woman" means a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim law. " "iddat period" has been defined in Section 2 (b) thus : "iddat period" means, in the case of a divorced woman,- (i) three menstrual courses after the date of divorce, if she is subject to menstruation; (ii) three lunar months after her divorce, if she is subject to menstruation; and (iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy, whichever is earlier. " section 3 postulates thus : "mahr or other properties of Muslim woman to be given to her at the time of divorce: (1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to- (a) a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children; (c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and (d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. (2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of subsection (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order of payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be. (3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that- (a) her husband having sufficient means, has failed or neglected to make or pay her within the Iddat period a reasoanble and fair provision and maintenance for her and the children; or (b) the amount equal to the sum of mahr or dower has been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) to the divorced woman; provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period. (4) If any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974) and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code. " the heading of Section 3 itself reads that it seeks to achieve the object of ensuring the payment of Mahr or making available other properties of Muslim which belonged to her, at the time of divorce. Section 3 starts with a non obstante clause reading "notwithstanding anything contained in any other law for the time being in force", a divorced woman shall be entitled to lay a claim for all those things enumerated in clauses (a) to (d) of sub-section (1) thereof. The effect of a non obstante clause in a piece of legislation is well known and need not detain us any further except stating that a true and well purported meaning will have to be given to the non obstante clause which states that "notwithstanding anything contained in any other law for the time being in force" a divorced woman shall be entitled to the benefits accruing to her under the provisions of clauses (a) to (d) of sub-section (1) of Section 3 of the Act of 1986. A close perusal of Section 3 (1) (a) shows that a divorced Muslim woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by former husband. This Full Bench has to address itself to the meaning and purport of clause (a) of sub-section (1) of S. 3 to find out what is the exact meaning to be attributed to this section. It is clearly stated that a divorced Muslim woman shall be entitled to a reasonable and fair provision and maintenance within the Iddat period to be made and paid by her former husband. It is also equally clear that the reasonable and fair provision and maintenance has to be made and paid by the husband within the `period of Iddat which has been defined under Section 2 (b) of the Act. There is nothing in the section which can be read to mean that the husband is liable to make reasonable and fair provision and maintenance beyond the period of Iddat. The word "within" indicates two things that the liability of the husband to make a reasonable and fair provisions and maintenance is limited to the period of Iddat only and it is already seen in the statement of objects and reasons that the principle of Muslim law limits the husband s liability to provide maintenance to the divorced wife for the period of Iddat only. Even in the case of Shah Bano, it is recognised that a Muslim woman is entitled to maintenance under the Muslim law only during the period of Iddat. However, it is held that if she is unable to maintain herself then the liability of the husband to pay maintenance arises under Section 125 of the Code. Therefore, inherent in the decision of the Supreme Court is the recognition of the principle that while maintenance during the period of Iddat is to be paid under the Muslim law, maintenance beyond the period of Iddat is envisaged only under Section 125 of the Code. Therefore, the word "within" occurring in Section 3 (1) (a) clearly means that there is an obligation on the part of the husband to provide fair and reasonable maintenance to his divorced wife within the period of Iddat and for the period of Iddat only. It is also clear that the liability of the husband cannot be extended beyond the period of Iddat to make any reasonable and fair provision or to pay maintenance beyond the period of Iddat of his divorced wife. Much has been said to which reference is to be made later about the use of the word "within" rather than "for" which has been employed in Section 3 (1) (a ). We are clearly of the opinion that the use of the word "within" does not permit an interpretation to be put to the section that the liability of the husband to make a reasonable and fair provision and maintenance to his divorced wife extends beyond the period of Iddat. The intention of the legislature is manifestly clear that it envisages the making of reasonable and fair provision and payment of maintenance to the divorced wife commensurate with the period of Iddat to be paid within the period of Iddat. To take a contrary view would result in complete negation of the principles envisaged under Section 3 (1) (a) of the Act of 1986 and defeat the very purpose to which the Act of 1986 has been enacted. Under sub-section (2) of Section 3, it is provided that where a reasonable and fair provision and maintenance or the amount of Mahr or Dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one on her behalf may make an application to a Magistrate for an order for payment of such provision and maintenance, Mahr or Dower, or the delivery of properties, as the case may be. In our opinion, sub-section (2) of Section 3 confers immense benefit on a divorced woman under the Act of 1986. She can claim all the advantages mentioned in clauses (a), (b), (c), and (d) of sub-section (1) of Section 3 without going through the procedure of filing a suit in a civil court as she is given the right to file an application under sub-section (2) of Section 3 to claim all that is due to her under clauses (a) to (d) of sub-section (1) of Section 3 of the Act of 1986. The Magistrate shall make an order under sub-section (3) of S. 3 within one month from the date of filing of the application directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of subsection (1) of Section 3 to the divorced woman.

( 9 ) THE Act has been promulgated to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. In so far as it provides the speedy remedies to the wife as laid down in sub-sections (2) and (3) of Section 3, it can safely be said that the Act of 1986 is a self-contained Act enumerating the rights and obligations of the parties and providing remedies for the same.

( 10 ) THE next step in this regard is to examine the provisions of Section 4. Section 4 of the Act deals with the question of order for payment of maintenance and it is in the following terms:"notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time being in force, where a Magistrate is satisfied that a divorced woman has not remarried and is not able to maintain herself after the Iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasoanable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order. "in the proviso to Section 4, it is stated that if the divorced woman has children, the Magistrate shall order only such children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall order the parents of such divorced woman to pay maintenance to her. If the parents are unable to pay their share of maintenance on the ground of their not having the means to pay the same, the Magistrate may, on proof of such inability, order other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate thinks fit to order. Under subsection (2) of Section 4, it is stated that if the divorced woman is unable to maintain herself and she has no relatives as stated above the Magistrate may, by order, direct the State Wakf Board established under Section 9 of the Wakf Act, to pay such maintenance as determined by him under sub-section (1 ).

( 11 ) THE primary question arising out of Section 4 for consideration is that the liability of the relatives or the Wakf Board, as the case may be, to pay maintenance to the divorced woman arises only if the divorced woman is not remarried or is unable to maintain herself after the Iddat period. This clearly shows that the husband is not liable to pay any maintenance beyond the period of Iddat. If the divorced woman is unable to maintain herself even after the period of Iddat then the liability devolves on her relatives who would inherit her property, as stated in Section 4. Under Section 5 it is provided that if, on the date of the first hearing of the application under subsection (2) of Section 3, a divorced woman and her former husband declare by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly. The form in which the affidavit has to be filed in pursuance of Section 5 is given in Form `b under Rule 8 of the Muslim Women (Protection of Rights on Divorce) Rules, 1986. It is clear from a reading of Section 5, that it is only if a declaration is made by a divorced woman and her former husband exercising their option to be governed by the provisions of Sections 125 to 128 of the Code, then their case will be governed by the provisions of Ss. 125 to 128 of the Code and not otherwise. But in case no such option is exercised and the affidavit is not filed as required under Rule 8 referred to supra, Sections 125 to 128 of the Code will have no application to the case of maintenance claimed by the divorced woman. Under Section 7, transitional provisions are made to the effect that every application by a divorced woman under Section 125 or under Section 127 of the Code, pending before a Magistrate on the commencement of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the Act of 1986, be disposed of by the Magistrate in accordance with the provisions of Act of 1986.

( 12 ) IT is thus clear that even if an application is pending under Section 125 or under Section 127 of the Code, on the commencement of the Act (of 1986), notwithstanding anything contained in that Code and subject to the provisions of Section 5 of the Act, the application has to be disposed of in accordance with the provisions of Act of 1986. This indicates that the operation of the provisions of Section 125 or Section 127 of the Code is excluded on the commencement of the Act of 1986 and such applications (filed under Sec. 125 or under Sec. 127 of the Code) pending before the Magistrate shall have to be disposed of in accordance with the provisions of Act of 1986.

( 13 ) IT is also significant to note that there is no saving clause in the Act of 1986 under which it may be said that the provisions of Sections 125 to 128 of the Code of Criminal Procedure are not applicable to the case of the divorced Muslim woman claiming maintenance from her former husband, after passing of the Act of 1986. In the absence of a saving clause, the intention of the Parliament is clear that the claim of maintenance by the divorced Muslim woman is to be governed by the provisions of the Act of 1986 unless option is exercised by the parties as provided under Section 5 of the Act.

( 14 ) LET us now analyse the situation arising out of the provisions of the Act itself to answer the question whether Section 125 of the Code would be applicable to the case of a divorced Muslim wife claiming maintenance from her former husband. It is seen that Section 3 starts with a non obstante clause as it provides that "notwithstanding anything contained in any other law for the time being in force," a divorced woman shall be entitled to the rights which are enumerated therein. Under section 4 of the Act, the liability to pay maintenance to a divorced woman, if she is unable to maintain herself after the period of Iddat, is devolved upon the relatives and if the relatives are not available, on the Wakf Board. The very concept of liability of the husband is limited for and during the period of Iddat. The liability, if any, arising for payment of maintenance after the Iddat period to the divorced woman if she is unable to maintain herself is cast upon the relatives or the Wakf Board, under Section 4 of the Act. Under Section 5 it is provided that the husband and wife would be governed by Sections 125 to 128 of the Code, if they exercise their option in the manner stated therein. If the option is not exercised, then it is clear that they will not be governed by the provisions of Sections 125 to 128 of the Code. It would be too much to say that the claim of maintenance by the divorced Muslim woman would still be governed by the provisions of Section 125 of the Code when such an application is expressly dependent upon the provisions of Section 5 of the Act and on the exercise of the option by the parties concerned. Further-more, under Section 7 of the Act, the intention of the Legislature is clear when it provides that every application by a divorced woman under Section 125 or under Section 127 of the Code pending before the Magistrate on the commencement of the Act of 1986, shall, notwithstanding anything contained in that Code and subject to the provision of Section 5 of the Act, be disposed of in accordance with the provisions of Act of 1986.

( 15 ) A combined and harmonious reading of the provisions of Sections 3 to 7 of the Act of 1986 would clearly demonstrate that the general object of the legislation is to bring the law of maintenance payable to the wife in consonance with the principles of Muslim law. Therefore, the provisions of Sections 125 to 128 of the Code will have no application to the Act of 1986 except in case of option exercised by the parties under Section 5 of the Act to any such claim of maintenance made by the wife under Section 125 of the Code.

( 16 ) ONE of the reasons for referring this matter to the Full Bench is that there is conflicting decisions of various High Courts on the question of applicability of Section 125 of the Code to the claim of maintenance made by a divorced Muslim wife. It is therefore necessary to discuss the points involved in the various decisions to arrive at a fair and just conclusion in this case.

( 17 ) IN Md. Yunus v. Bibi Phenkani alias Tasrun Nisa, (1987) 2 Crimes 241 a learned single Judge of the Patna High Court considered the question of applicability of Sections 125 and 127 of the Code in the case of a Muslim woman claiming maintenance after the passing of the Act of 1986. The precise question before the learned Judge was whether the right under Section 125 of the Code to claim maintenance subsists even after the passing of the Act of 1986. After referring to several authorities the learned Judge held that Section 3 (1) (a) of the Act of 1986 curtailed the right of a divorced Muslim woman to get maintenance for the period of Iddat only. It is also held that the right to get maintenance from her husband given to a wife under Section 125 of the Code until she remarries has been impliedly repealed in case of a divorced Muslim wife governed by the provisions of Section 3 (1) (a) of the Act of 1986. In effect, it is also held in that case that a divorced Muslim woman is no longer entitled to get maintenance from her husband after the period of Iddat as there is no saving clause in the Act of 1986. Having lost her right to get maintenance from her former husband after the period of Iddat, she has also lost her remedy as provided under Section 125 of the Code to enforce her right in case her former husband fails without sufficient cause to comply with the order of maintenance. Thus, an application under Section 125 (3) of the Code which in effect is a penal provision will not be applicable to such a wife. The repeal without saving such right means that such woman had never such right and in this view of the matter the said right was held not to be enforceable under Section 125 (3) of the Code. "any view to the contrary", said the learned Judge, "will amount to frustration of the very object of the Act for which it has been passed. "

( 18 ) A similar view was taken by a Division Bench of Rajasthan High Court in Abid Ali v. Mst. Raisa Begum, (1988) 1 Rajasthan LR 104. The question for consideration before the Division Bench was the effect of the provisions of Act of 1986 on orders of maintenance passed under the Code of Criminal Procedure and whether the orders passed under Section 125 of the Code remain effective even after coming into force of the Act of 1986. The answer given by the Division Bench to the said question is clearly in the negative. It is held that the Act of 1986 does not contain any saving clause for the right created on orders passed in favour of a divorced Muslim woman. The Act has completely obliterated the right of such woman to get maintenance. The repeal without saving such right means that such woman had never acquired such right and that right now cannot be enforced under Section 125 (3) of the Code. Therefore, if a Muslim woman divorced prior to coming into force of the Act of 1986 in whose favour order of maintenance has been passed and has become final or is pending in revision or in other court is being challenged by the husband and if such an order is held to be executable then it will amount to contravention of the intention of the Legislature and will amount to frustrate the very object of the Act of 1986 for which it has been enacted.

( 19 ) A brief reference may also be made to the decision in Abdul Gafoor v. A. U. Pathumma Beevi, 1989 Cri LJ 1224 (Kerala ). It is held that a divorced Muslim is not entitled to invoke Section 127 of the Code for seeking enhancement of maintenance after 19th May 1986, the date on which the Act of 1986 came into force. That Court further held that even though Sections 125 to 127 of the Code have not been repealed by the Act of 1986, it cannot be said that the Act of 1986 supplemented, widened or enriched the contents of rights ensuring to the wife under the Code. The Act of 1986 being in the nature of a special law which applies to the Muslim community, it excludes the operation of Sections 125 to 128 of the Code in so far as that community is concerned. Therefore, when a Special Law - Act of 1986 has been enacted to govern maintenance payable to Muslim wives, application of general law under the Code is excluded or restricted. We find ourselves in agreement with the ratio of these three decisions referred to supra. We are also in agreement with yet another decision in Rizwana Begum v. Motiullah, 1989 Cri LJ NOC 155 (Orissa) which also affirms the principle that Sec. 125 of the Code will have no application to the case of a divorced Muslim woman who is governed by the provisions of the Act of 1986.

( 20 ) AS against the above tenor of cases in favour of the proposition that Sections 125 to 128 of the Code are not applicable, there are some cases which have taken a contrary view and which may be considered in the light of the provisions of Act of 1986.

( 21 ) IN A. A. Abdulla v. A. B. Mohmuna Saiyadbhai, AIR 1988 Gujarat 141 a learned single Judge took the view that a divorced Muslim woman is entitled to maintenance after contemplating her future needs and the maintenance is not limited only up to Iddat period. The phrase used in Section 3 (1) (a) of the Act of 1986 is "reasonable and fair provision and maintenance to be made and paid to her" indicates that the parliament intended to see that the divorced woman gets sufficient means of livelihood after the divorce and that she does not become destitute or is not thrown on the streets without a roof over her head and without any means of sustaining herself and her children. The learned Judge observed that the word `provision itself indicates that something is provided in advance for meeting some needs. This means that at the time of giving divorce the Muslim husband is required to visualise or contemplate the extent of the future needs and make preparatory arrangement in advance for meeting the same. It is also held that the word "within" under S. 3 (1) (a) cannot be read as "for" or "during". Therefore, the husband was held to be liable for making reasonable and fair provision and maintenance to the wife even after the period of Iddat. The learned Judge also held that it cannot be held that Section 3 of the Act of 1986 in any way adversely affects the personal rights of a Muslim divorced woman. Nowhere in the Act it is provided that the rights which are conferred upon a Muslim divorced woman under Personal Law are abrogated, restricted or repealed. In that view of the matter, it was held in the above case that the order passed by the Magistrate under Section 125 of the Code ordering the Muslim husband to pay maintenance to his divorced wife would not be non est as there is no section in the Act which nullifies the order passed by the magistrate under Section 125 of the Code. We are unable to agree with the reasoning given in the above judgment for several reasons. Firstly it has to be seen that Section 3 of the Act of 1986 has been promulgated in the wake of the furore created after the decision in Shah Bano case (AIR 1985 SC 945) in which the principle of Mahomaden Law with regard to maintenance was given a new interpretation. In fact, the main object of the Act of 1986 is to bring the law in consonance with the principles of Mahomaden Law. Section 3 affirms the principle which has been laid down by various authorities about the right of a divorced Muslim wife to claim maintenance from her former husband only for the period of Iddat. Therefore, it cannot be said that Section 3 is something different from what the principle of Mahomaden Law provided in regard to payment of maintenance to a divorced Muslim woman. It is rather surprising to note that the learned single Judge in the above case thought that "taking into consideration the objects and reasons for enacting the Act of 1986 as well as the preamble and the plain language of Section 3, it cannot be said that the Act in any way adversely affects the personal rights of a Muslim divorced woman, as laid down by the Supreme Court in Shah Bano case. " In that view of the matter he came to the conclusion that the liability of the husband to provide for maintenance to his divorced wife under the principles of Mahomaden Law is not limited to the period of Iddat only. It is obvious that this is an erroneous impression carried by the learned single Judge. The very object of promulgation of the Act of 1986 as stated in the aims and object of the Act itself is to nullify the effect of Shah Bano case and not to strengthen it. Moreover, it is a wrong presumption on the part of the learned single Judge that under the Muslim Personal Law liability of a husband to pay maintenance to his divorced wife extends beyond the period of Iddat. There is an inherent contradiction in the judgment where it provides that there is no section in the Act of 1986 which nullifies the order passed by the Magistrate under Section 125 of the Code. It is stated that once the order under Section 125 of the Code granting maintenance to a divorced Muslim wife is passed, then her rights are crystallised and she gets vested rights to get maintenance from her former husband. That vested right is not taken away by the Parliament by providing any provision in the Act. Then the learned Judge deals with the question of option to be exercised by the parties under Section 5 of the Act to be governed by Sections 125 to 128 of the Code and holds that that also indicates that the Parliament never intended to take away the vested right of a Muslim divorced woman which were crystallised before passing of the Act of 1986. As stated above, there are several inherent contradictions and inconsistencies in the above statement of law which do not stand to reason or scrutiny. It is clear that the liability of the husband for payment of maintenance is limited i. e. , only during and for the period of Iddat. The liability cannot be extended by provisions of Section 125, of the Code unless the parties exercise their option under Section 5 of the Act of 1986. Therefore, it is difficult to visualise how it can be held that the right of the divorced wife gets crystallised under Section 125 of the Code and cannot be taken away by the provisions of the Act of 1986.

( 22 ) IN Hazran v. Abdul Rehman, 1989 Cri LJ 1519 (Punj and Har) a similar view has been taken as that of the Gujarat High Court referred to above, where it was held that the order of maintenance under Section 125 Cr. P. C. is not affected by coming into force of the Act of 1986. This is held primarily on the basis that there is no provision in the Act of 1986 to the effect that "notwithstanding anything contained in Sections 125 to 128 of the Code, maintenance of Muslim women shall be governed by the provisions of the Act of 1986". It is further stated that "it follows that the provisions of Secs. 125 to 128 have been superseded only to the extent that there is a provision in the Act of 1986 on matters covered under Chapter IX of the Code. If no contrary provision has been made either expressly or by necessary implication in the Act of 1986, the provisions of the Code in Chapter IX shall hold the field. " In our opinion, this decision completely ignores the non obstante clause in Section 3 of the Act of 1986 "notwithstanding anything contained in any other law for the time being in force. . . . " Moreover, read with Section 4, the intention of the Legislature is patently clear that the operation of Sections 125 to 128 of the Code have been impliedly repealed by the Act of 1986.

( 23 ) THEREFORE, in view of the foregoing, it is held that a divorced Muslim woman cannot claim maintenance under Section 125 of the Code from her former husband after passing of the Act of 1986.

( 24 ) THE second question which requires consideration is what is meant by `reasonable and fair provision and maintenance mentioned in Section 3 (1) (a) of the Act? Does it mean that the husband should provide a reasonable and fair provision and maintenance as a compendious whole or is to be taken that a reasonable and fair provision is something distinct and separate from maintenance. This aspect of the matter is of considerable importance because the learned Advocate General appearing for the State has contended that the concept of `reasonable and fair provision must be read as distinct and separate from that of `maintenance . While he concedes that there is no liability on the part of a Muslim husband, within the meaning of Section 3 (1) (a) of the Act of 1986 to pay maintenance to the divorced wife beyond the period of Iddat, he insists that there is a liability on the husband to make a reasonable and fair provision for the wife even after the period of Iddat. This argument is advanced in the premise that while there is an absolute in-junction in the Muslim law that the wife is not entitled to any maintenance beyond the period of Iddat, there is nothing which limits the rights of the divorced wife to claim a reasonable and fair maintenance beyond the period of Iddat. The first and the foremost point to be considered in this regard is that if the concept of reasonable and fair provision is to be read as one meaning that it is payable even for the period beyond the Iddat, then it would be defeating the very purpose for which the Act of 1986 has been enacted. The primary object of the Act is to bring the state of law in regard to payment of a reasonable and fair provision and maintenance to a divorced Muslim woman in consonance with the principle of Muslim law. The language of Section 3 (1) (a) is clear and it is provided that a reasonable and fair provision and maintenance should be made and paid `within the period of Iddat. If it is recognised that the liability of the husband to pay maintenance is limited to the period of Iddat, then there is no justification to hold that the liability of making a reasonable provision extends beyond the period of Iddat under Section 3 (1) (a) of the Act of 1986. What has been recognised on one hand in regard to maintenance cannot be taken away by the other for providing reasonable and fair maintenance. There is another difficulty which clearly demonstrates the fallacy inherent in such a submission. If a reasonable and fair provision is to be made by the husband for a period beyond the Iddat of the divorced woman then it is clear that such a provision will have to be made within the period of Iddat which is normally a period of approximately three months. The essential fact to realise is that the making of a reasonable and fair provision and payment of entire maintenance is to be made in lump sum within the period of Iddat because the section clearly stipulates that the provision and maintenance must be made and paid in full within the period of Iddat. The question is, is it possible to make such a payment within the stipulated period of Iddat which may be deemed to be a reasonable and fair provision to cover up the necessities of life of the divorced woman for the entire period of her remaining life or until she gets remarried. In other words, how an assessment can be made that a provision is reasonable and fair provision payable within the period of Iddat forecasting the future needs that may arise fifty to sixty years hence. Let us test the strength of this argument from another angle. Suppose a fair and reasonable provision is made by the husband on the assumption that the wife is not going to get remarried. But if after a year or two, the wife remarries again, what will happen to the reasonable and fair provision made and paid by the husband during the period of Iddat? Would an actionable claim lie on behalf of the husband to recover the sum paid as a fair and reasonable provision the obvious result of such discussion seems to be that the term "fair and reasonable provision and maintenance" will have to be read in a compendious form. Even if there is a concept of a reasonable and fair provision separate from the payment of maintenance, such a reasonable and fair provision is to be made for the upkeep of the divorced wife during the period of Iddat only. No liability can be cast on the husband to make any reasonable and fair provision for the divorced wife beyond the period of Iddat.

( 25 ) THE cardinal principle which Section 3 seeks to lay down is that the liability of the husband to make a fair and reasonable provision and pay maintenance is confined to the duration of Iddat only.

( 26 ) UNDER the Mahomedan Law, the position is clear. In Ayat 241 of Chapter II of the Holy Quran it is stated thus : arabic version English version Ayat No. 241 wa Lil Motalla Qatay Mata Un For divorced women Maintenance (should be provided) bil Maaroofay On a reasonable (Scale) haqqan This is a duty alal Mutta Qeena on the righteous. It is stated that for a divorced woman maintenance should be provided on a reasonable scale. This is a duty on the righteous. There is no dispute about the translation of the above Ayat by Abdullah Yusuf Ali. The concept of a reasonable and fair provision and maintenance arises out of the Quranic verse 241 in which the word "mata" has been used. In order to avoid any confusion, the Legislature has provided that a fair and reasonable provision and maintenance shall be paid to the wife within the period of Iddat.

( 27 ) IN Shah Bano case (AIR 1985 SC 945) the Supreme Court has also recognised the principle that there is no difference between the words "provision" and "maintenance" as are used in Section 3. While dealing with the word "mata" in Ayat No. 241 of the Holy Quran, the Supreme Court has observed that the contention of the appellant that the word "mata" in Ayat No. 241 means `provision and not `maintenance is a distinction without a difference. In other words, the provision and maintenance convey the same sense of providing maintenance to the wife during the period of Iddat. Therefore, viewed from any angle, it cannot be said that there is a difference between `provision and `maintenance and that while maintenance may be payable only for the period of Iddat, the liability to make fair and reasonable provision for the wife may extend beyond the period of Iddat as well. The above interpretation is clearly not sustainable in the light of the principles of Mahomedan law and under the provisions of Section 3 of the Act of 1986.

( 28 ) A reference to the classical authorities on the subject of `maintenance to a divorced Muslim wife reveals beyond any doubt that the maintenance to the divorced wife is payable only during the period of Iddat.

( 29 ) IN "the Hedaya" which is the classical work of Muslim law applicable to the predominant Sunni Sect of Muslims, in Section 3 (Book IV, page 406), it is stated that where a man divorces his wife, her subsistence and lodging are incumbent upon him during the term of her Iddat, whether the divorce be of the reversible or irreversible kind. The concept of the term `subsistence and lodging is wide enough to include the reasonable and fair provision and maintenance. Under the Shafei law, no maintenance is due to a woman repudiated by irreversible divorce unless she be pregnant. The Holy Quran in Verse 228 says "divorced women shall wait concerning themselves for three monthly periods. This is the period of Iddat. " In Mulla s Principles of Mahomedan Law, under Section 279 it is stated that after divorce, the wife is entitled to maintenance during the period of Iddat. If the divorce is not communicated to her, until after the expiry of that period, she is entitled to maintenance until she is informed of the divorce. There is a consensus of opinion among all the eminent authors on Muslim Law, such as Tyabji, Ameer Ali, Fyzee and others, that a divorced woman is entitled to maintenance only during the period of Iddat. Apart from Hedaya, which is the classical work of Sunni law, the classical work of immania which is a treatise on Shia Law and Baillie which deals both with Shia and Sunni aspects of law are all uniform that a divorced woman is entitled to maintenance for the period of Iddat only.

( 30 ) THEREFORE, it is patently clear that tinder the principles of Muslim law, the divorced wife is entitled to a provision or maintenance only for and during the period of Iddat. It is this principle of Muslim Personal Law which has been promulgated under Sec. 3 of the Act of 1986. Ameer Ali in his classical work on Mohammedan Law (Volume II) has stated at page 459 as follows :"the husband s liability to support the wife continues during the whole period of probation, if separation has been caused by any conduct of his, or has taken place in exercise of a right possessed by her. The husband would not, however, be liable to support his wife during the Iddat if the separation is caused by her misconduct. "tyabji has expounded the law lucidly in his book on Muslim law. It is stated that under Hanafi law, on divorce a wife is entitled to maintenance during her Iddat, whether the divorce is revocable or irrevocable, whether single or triple, and whether she is pregnant or not, unless the marriage has been dissolved for some cause of a criminal nature originating from the woman. Under Shiite and Shafii law, the wife is entitled to maintenance during her Iddat if revocably divorced but not if irrevocably divorced, unless an irrevocable divorce is pronounced during the wife s pregnancy, in which case she is entitled to maintenance until delivery. In any case, on the expiry of the Iddat after Talaq, the wife s right to maintenance ceases.

( 29 ) THE aforesaid control vested in the Government and the Registrar, particularly the power to divide, amalgamate or merge the societies, power to conduct elections to the committee (disabling the Society to conduct such an election itself), power to supersede the committee, power to recover amounts due to the societies as arrears of land-revenue, power to provide common cadres for the employees of several independent societies, as also the extensive power to give binding directions vested in both the Government and the Registrar not only in the interest of share-holders, depositors and creditors, but also in the interest of public and of co-operative movement, is liable to be characterized as deep and pervasive control, within the meaning of the fourth test aforesaid. It must be noted that in this particular Writ Appeal, the society concerned is a Co-operative Central Bank, which is included within the categories of Societies, included in Section 116-A. (5) Whether the functions of the Society are of public importance and closely related to governmental functions?

( 30 ) THIS test, it is generally recognized, is too general to be precise. As has been pointed out by the Supreme Court in Ramana Dayaram Shetty AIR 1979 SC 1628, today the expression "governmental function" is a vague and indefinite description. In a welfare society like ours, it is difficult to draw the demarcating line between governmental and non-governmental functions. Similarly, it is equally difficult to say with precision, which is a function of public importance, and which is not. If imparting education is a function of public importance, growing foodgrains, distribution of foodgrains, production and distribution of goods essential to society (industrial activity and commerce), providing housing, consumer goods and services essential to life and well being of society are all equally public functions. This inherent weakness in this test is bound to tell upon its importance.

( 31 ) BE that as it may, we find from the bye-laws of the appellant-Bank that its dealings are confined to its members and its membership consists of member-societies, Government, or a few nominal members. In response to our specific and repeated queries, it has been stated by counsel for both the parties that the operations of the appellant-Bank are actually confined to its members only. The appellant would not advance loan to a non-member-whoever he is. The appellant-Bank's main object is to raise funds to finance its members. It has its own funds. It is entitled to raise loans from Scheduled Banks and other agencies. Its members also make deposits with it. It is this amount, coupled with the rural credit provided by the central agencies, that is provided to its members. The main function of this Bank we are told is to provide credit out of its funds to Agricultural Credit societies which, in turn, provide the same to their members. The State provides credits to agriculturists mainly with a view to save them from the exploitation and harassment by money-lenders, and also to promote agricultural production and, in that sense, it is a function of public importance. But so does every other financial institution and Bank which provides credits to Industry, Commerce, Communications, and other bodies providing various services to the society. More important, according to the fifth test evolved by the Supreme Court, not only the functions of a Corporation should be of public importance, but they must also be closely related to governmental functions. Inasmuch as the operation of the appellant-Bank is not confined to State funds, and also because it cannot be termed as an agency created by the State for distributing the rural credit provided by it, it cannot be said that it satisfies this test. As stated above, the appellant-Bank has its own funds, and the credit provided by central agencies is only a part of it. We may in this connection refer to what Bhagwati, J. said in Ramana v. I. A. Authority of India AIR 1979 SC 1628. After pointing out that the distinction between governmental and non-governmental functions is no longer valid in the present day social welfare State, the learned Judge observed :"the contrast is rather between governmental activities which are private and private activities which are governmental. (Mathew, J. in Sukhdev v. Bhagatram at p. 1355 of AIR 1975 SC 1331 ). But the public nature of the function, if impregnated with governmental character or `tied or entwined with Government' or fortified by some other additional factors, may render the corporation an instrumentality or agency of Government. Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference. . . ".

( 32 ) IN the circumstances, it is not possible to say that the appellant-Bank/society satisfies the fifth test enunciated by the Supreme Court.

( 33 ) FOR the above reasons, the appellant Society cannot be characterized as a `state' within the meaning of Article 12.

( 34 ) THERE is yet another aspect which is academic in nature but must be mentioned in the interest of clarity. It is this : Even if for some reason it can be held that the appellant Society is an `authority' within the meaning of Art. 12, it does not follow therefrom that every activity of it's is amenable to writ jurisdiction. Even in the case of a Government, a writ petition does not lie to enforce a non-statutory contractual obligation. Similarly, even in the case of a society, which is a `state' within the meaning of Art. 12, a writ does not lie to enforce a contractual obligation. In Co-operative Central Bank AIR 1970 SC 245 the Supreme Court has specifically said that the bye-laws providing service conditions of the employees of a society are nothing more than a contract of service. This distinction was indeed pointed out by Kuppuswami, J. in P. S. Naidu (1977) 2 APLJ (HC) 282 : (1978 Lab IC 528 ). It has also been emphasized by the Supreme Court in M. C. Mehta v. Union of India AIR 1987 SC 1086. In paragraph 29 of the said judgment, it is observed:-"the learned counsel for Shriram stressed the inappositeness of the doctrine of State action in the Indian context because, according to him, once an authority is brought within the purview of Art. 12, it is State for all intents and purposes and the functional dichotomy in America where certain activities of the same authority may be characterized as State action and others as private action cannot be applied here in India. But so far as this argument is concerned, we must demur to it and point out that it is not correct to say that in India once a corporation is deemed to be `authority', it would be subject to the constitutional limitation of fundamental rights in the performance of all its functions and that the appellation of `authority' would stick to such corporation, irrespective of the functional context. . ".

( 35 ) THUS, bye-laws which merely constitute terms of contract between a Society and its employees do not have, or do not gain the force of law even where such Society can be characterized as 'state', within the meaning of Art. 12. But this aspect is of mere academic importance, since we have held that where a particular Society can be characterized as `state', within the meaning of Article 12, the Court will compel such Society to follow its bye-laws in the interest of fairness, i. e. , Article 14. Whether a writ petition lies to enforce the terms of a non-statutory contract?

( 36 ) THIS discussion has become necessary in view of the contention urged by the respondent (writ-petitioner) to the effect that, even if the bye-laws of the appellant-Society are held not to have the force of law and it is held that they constitute merely terms of contract of employment between the Society and the writ petitioner, even so a writ petition lies to enforce the terms of such contract. It is argued that the appellant-Society is a public body and, therefore, it is amenable to a writ of mandamus, as well as a writ of certiorari. It is not possible to agree with the contention.

( 37 ) THE basic feature of mandamus and certiorari is that they are public law remedies and are not available to enforce private law rights. Though the strict technical rules governing these writs in English law are not applicable in India, yet the broad principles underlying the said writs have to be kept in mind by this Court while exercising the power under Art. 226. Not keeping the said distinction in mind would obliterate the distinction between a writ petition and a suit; there will be chaos. As pointed out by a Constitution Bench of the Supreme Court in T. C. Basappa v. T. Nagappa AIR 1954 SC 440 though the power of the High Court under Art. 226 need not be constricted by the technical rules applicable to these prerogative writs in English law, it is yet necessary to "keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law". Similarly, it was pointed out in Dwaraka v. I. T. O. , AIR 1966 SC 81 that "article 226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. A wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be used, was designedly used by the Constitution. But this does not mean that the High Court can function arbitrarily under this Article. There are some limitations implicit in the Article, and the others may be evolved to direct the Article through defined channels. . . . ". The object behind Art. 226 was to strengthen the then existing judicial system, to make it more effective and not to dispense with, duplicate, or replicate the existing system. It was not to supplant the existing judicial system, but to confer an additional power in the service of people and Constitution that this extraordinary power was created. It is for this reason that notwithstanding the wide language of Art. 226, Courts have been observing certain self-imposed restrictions upon this power. One of the well accepted limitations upon the exercise of this power is that it is not available to enforce the terms of a contract, i. e. , a contract which is not statutory in nature. This is so even if one of the contracting parties is the State, a Government, or other local authority. This is the principle affirmed by Supreme Court in a large number of cases, some of which are Radhakrishna Agarwal v. State of Bihar AIR 1977 SC 1496; State of Punjab v. Balbir Singh AIR 1977 SC 1717; Bihar E. G. F. Co-operative Society v. Sipahi Singh, AIR 1977 SC 2149 Lekhraj v. Deputy Custodian, Bombay AIR 1966 SC 334; Har Shankar v. Deputy E and T Commissioner, AIR 1975 SC 1121, and finally L. I. C. of India v. Escorts Ltd. AIR 1986 SC 1370. In Escort's case, an argument was urged that inasmuch as the Life Insurance Corporation was an instrumentality of the State, it is debarred by Article 14 from acting arbitrarily. It is obligatory upon the Corporation, it was contended, to disclose the reasons for its action complained of, viz. , its requisition to call an Extraordinary General Meeting of the Company for the purpose of moving a resolution to remove some Directors and appoint others in their place. This argument was opposed by the learned Attorney-General for the State, contending that actions of the State or an instrumentality of the State which do not properly belong to the field of public law but belong to the field of private law, are not subject to judicial review. Dealing with the said contentions, the Court observed :-"while we do find considerable force in the contention of the learned Attorney-General it may not be necessary for us to enter into any lengthy discussion of the topic, as we shall presently see. We also desire to warn ourselves against readily referring to English cases on questions of Constitutional law' Administrative Law and Public Law as the law in India in these branches has forced ahead of the law in England, guided as we are by our Constitution and uninhibited as we are by the technical rules which have hampered the development of the English law. While we do not for a moment doubt that every action of the State or an instrumentality of the State must be informed by reason and that, in appropriate cases actions uninformed by reason may be questioned as arbitrary in proceedings under Art. 226 or Art. 32 of the Constitution, we do not construe Art. 14 as a charter for judicial review of State actions and to call upon the State to account for its actions in its manifold activities by stating reason; for such actions. For example, if the action of the State is political or sovereign in character, the Court will keep away from it 'the Court will not debate academic matters or concern itself with the intricacies of trade and commerce. If the action of the State is related to contractual obligation or obligations arising out of the contract, the Court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of then action and a host of other relevant circumstances. When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a share holder, and dons the robes of a share-holder, with all the rights available to such a share-holder there is no reason why the State as a share-holder should be expected to state its reasons when it seeks to change the management, by a resolution of the Company, like any other share-holder. . "distinction between `public law' and `private law' : difficult as this distinction is and incapable of precise demarcation, it is yet necessary to keep the broad distinction in mind. Lord Denning in his book "the Closing Chapter" has this to say on the subject:"the first thing to notice is that public law is confined to `public authorities'. What are 'public authorities'? There is only one avenue of Approach. It is by asking, in the words of Section 31 (2) (b) of the Supreme Court Act 1981 : What is the 'nature of the persons and bodies against whom relief may be granted by such orders', that is, by mandamus, prohibition or certiorari? these are divided into two main categories : first, the persons or bodies who have legal authority to determine questions affecting the common law or statutory rights or obligations of other persons as individuals. That is the formula stated by Lord Justice Atkin in R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Co. , (1920) Ltd, (1924)1 KB 171 / 205 as broadened by Lord Diplock in O'reilly v. Mackman (1982) 3, WLR 1096/ 1104 ). Second, the persons or bodies who are entrusted by Parliament with functions, powers and duties which involve the making of decisions of a public nature. . . . To which I would add the words of Lord Goddard, C. J. in R. v. National Joint Council for Dental Technicians, ex parte Neate (1953) 1 QB 704/707): "the bodies to which in modern times the remedies of these prerogative writs have been applied have all been statutory bodies on whom Parliament has conferred statutory powers and duties which, when exercised, may lead to the detriment of subjects who may have to submit to their jurisdiction". But those categories are not exhaustive. The courts can extend them to any other person or body of a public nature exercising public duties which it is desirable to control by the remedy of judicial review. There are many cases which give guidance, but I will just give some illustrations. Every body which is created by statute and whose powers and duties are defined by statute is a 'public authority'. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all `public authorities'. So are members of a statutory tribunal or inquiry, and the board of visitors of a prison. The Criminal Injuries Compensation Board is a public authority. So also, I suggest, is a university incorporated by Royal charter; and the managers of a State School. So is the Boundary Commission: and the Committee of Lloyd's. But a limited liability company incorporated under the Companies Acts is not a 'public authority'; Nor is an unincorporated association like the Jockey Club. . . ".

( 38 ) SIR Harry Woolf, a Lord Justice of Court of Appeal, points out the distinction in the following words :-"i regard public law as being the system which enforces the proper performance by public bodies of the duties which they owe to the public. I regard private law as being the system which protects the private rights of private individuals or the private rights of public bodies. The critical distinction arises out of the fact that it is the public as a whole, or in the case of local government the public in the locality, who are the beneficiaries of what is protected by public law and it is the individuals or bodies entitled to the rights who are the beneficiaries of the protection provided by private law ". The learned Law Lord stated further in the same Article, at page 223 :"while public law deals only with public bodies, this does not mean that the activities of public bodies are never governed by private law. Like public figures, at least in theory, public bodies are entitled to have a private life. There have been suggestions that in the commercial field public bodies should adopt different and higher ethical standards than private individuals, but this is not yet required as a matter of law and in relation to purely commercial transactions the same law is applicable, whether or not a public duty is involved. Prima facie, the same is true in relation to employment. The servant employed by a public body ordinarily has the same private rights as any other servant ". The position may, however, be different pointed out the learned Law Lord if such relationship is circumscribed by a statutory provision.

( 39 ) IN this context, it would be appropriate to refer to two important English decisions, where a public duty was implied even in the absence of a statutory provisions. They are R. v. Criminal Injuries Compensation Board, ex parte Lain (1967) 2 All ER 770, and R. v. Panel on take-overs (1987) 1 All ER 564. In Criminal Injuries Compensation Board, the relevant facts are the following: In the year 1964 the Government of Great Britian announced a Scheme in both Houses of Parliament providing for compensation to victims of violence and persons injured while assisting the police. It was a non-statutory scheme under which compensation was to be paid ex gratia. The scheme was to be administered by a Board, who were to be provided with money through a grant-in-aid, out of which payment would be made when the Board was satisfied that the compensation was justified. The widow of a Police Constable who was shot in the face by a suspect whom he was about to question, and who subsequently shot himself, applied to the Board for compensation. The Board awarded compensation, but made certain deductions, which was questioned by way of certiorari. The first question before the Court was "whether the Board are a body of persons amenable to the supervisory jurisdiction of this Court?". For the Board reliance was placed upon the well-known words of Atkin, L. J. , in' R. v. Electricity Commissioners (1924) 1 KB 171, at p. 205 to the effect that the body of persons to be amenable to writ jurisdiction must have the legal authority to determine questions affecting the rights of subjects and who are under a duty to act judicially. The Court held that the said words of Atkin. L. J. , were not supposed to be exhaustive of the situation where a certiorari may issue, and pointed out that the Board, though not set up under a statute, is set up by the executive Government, i. e. , under the prerogative, and that its acts are no less lawful on that account. The Court observed :"indeed, the writ of certiorari has been issued not only to courts set up by statutes but also to courts whose authority was derived, inter alia, from the prerogative. Once the jurisdiction is extended, as it clearly has been, to tribunals as opposed to courts, there is no reason why the remedy by way of certiorari cannot be invoked to a body of persons set up under the prerogative. Moreover, the Board, though set up under the prerogative and not by statute, had in fact the recognition of Parliament in debate and Parliament provided the money to satisfy the Board's awards. . . . ". It was further observed:"we have, as it seems to me, reached the position when the ambit of certiorari can be said to cover every case in which a body of persons, of a public as opposed to a purely private or domestic character, has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way, the Board in my judgment comes fairly and squarely within the jurisdiction of this Court. The Board are, as counsel for the Board said, "a servant of the Crown, charged by the Crown, by executive instructions, with the duty of distributing the bounty of the Crown". The Board are clearly, therefore, performing public duties. Moreover, the Board are quite clearly under a duty to act judicially". The same idea was put forward by Diplock, L. J. , in his separate opinion, where he said :"if new tribunals are established by acts of Government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics on which the subjection of inferior tribunals to the supervisory control of the High Court is based. . . ". Ashworth, J. , justified the issue of certiorari in that case on the following basis: "they (Board) were set up by the executive after the proposal to set them up had been debated in both Houses of Parliament, and the money needed to satisfy their awards is drawn from sums provided by Parliament. It can therefore be said that their existence and their functions have at least been recognized by Parliament, which to my mind has a twofold consequence : in the first place it negatives any notion that the Board are a private tribunal, and secondly it confers on the Board what I may call a public or official character. The number of applications for compensation and the amounts awarded by the Board alike show how greatly the general public are affected by the functioning of the Board. . . . ".

( 40 ) THIS decision has since been followed and applied in several English decisions. It would suffice to refer to R. v. Panel on Takeovers and Mergers, Ex Parte Datafin (1987) 1 All ER 564. The Panel on Take-overs and Mergers was a self-regulating unincorporated association which devised and operated the City Code on Take-overs and Mergers prescribing a Code of Conduct to be observed in the take-overs of listed public companies. The panel had no direct statutory, prerogative or common law powers, nor were its powers based solely on consensus; its acts were supported and sustained by certain statutory powers and penalties introduced after the inception of the Panel. A decision of the panel was sought to be questioned by way of certiorari. One of the objections of the respondents was that the supervisory jurisdiction of the Court was confined to bodies whose power was derived solely from legislation or the exercise of the prerogative, and that the power of judicial review did not extend to a body such as the Panel on Takeovers. Overruling this objection, it was held that in determining whether the decisions of a particular body were subject to judicial review, the Court was not confined to considering the source of that body's powers and duties, but could also look to their nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public duty and the body was exercising public law functions, the Court had jurisdiction to entertain an application for judicial review of that body's decisions. It was held that, having regard to the wide-ranging nature and importance of the matters covered by the City Code on Take-overs and Mergers and to the public consequences of noncompliance with the Code, the Panel on Takeovers and Mergers was performing a public duty when prescribing and administering the Code and its rules and was subject to public law remedies. Accordingly, it was held that an application for judicial review would lie in an appropriate case. The approach to be adopted in such cases, it was stated by Sir John Donaldson, M. R. , is "to recognize the realities of executive power". This is what the learned Master of Rolls stated :-"in fact, given its novelty, the panel fits surprisingly well into the format which this court had in mind in R. v. Criminal Injuries Compensation Board (1967-2 QB 867 ). It is without doubt performing a public duty and an important one. This is clear from the expressed willingness of the Secretary of State for Trade and Industry to limit legislation in the field of take-overs and mergers and to use the panel as the centerpiece of his regulation of that market. The rights of citizens are indirectly affected by its decisions, some, but by no means all of whom, may in a technical sense be said to have assented to this situation, e. g. , the members of the Stock Exchange. At least in its determination of whether there has been a breach of the Code, it has a duty to act judicially and it asserts that its raison d'etre is to do equity between one shareholder and another. Its source of power is only partly based on moral persuarion and the assent of institutions and their members, the bottom line being the statutory powers exercised by the Department of Trade and Industries and the Bank of England. In this context I should be very disappointed if the courts could not recognize the realities of executive power and allowed their vision to be clouded by the subtlety and sometimes complexity of the way in which it can be exerted. . . ". This rule was reiterated in yet another decision of the Court of Appeal in R. v. Panel on Take-overs and Mergers, ex parte Guinness, (1989) 1 All ER 509. This was indeed the approach indicated by Mathew, J. in Sukhdev v. Bhagatram, AIR 1975 SC 1331, when the learned Judge spoke of "the governing power, wherever located" being subjected to "fundamental constitutional limitations". The learned Judge felt that "the need to subject the power centres to the control of the Constitution requires an expansion of the concept of State action".

( 41 ) APPLYING the above test, the appellant-Society herein cannot be called a public body. It has no duty towards public. Its duty is towards its members only. It has no power to take any action, or pass any order affecting the rights of the members of public. The binding nature of its orders and actions is confined to its members, and to its employees. It is neither a, statutory body nor are its relations with its employees governed by a statute. Its functions are also not akin to governmental functions. Nor is it a case where it can be said that the reality behind the Society is the executive power of the State. Moreover, even if for some distant reason it can be characterised as a public body, even so the contract of service between it and the writ petitioner cannot be treated as belonging to `public law' field. It is a pure and simple contract of service, and there is no statutory provision regulating, circumscribing, and governing the said relationship excepting Section 47 of the A. P. Shops and Establishments Act, 1988, which imposes certain restrictions in the matter of termination of service of the employees of a co-operative society. This aspect we shall consider presently.

( 42 ) SUBSTANTIAL reliance is placed upon two recent decisions of the Supreme Court as charting out a new path. It is submitted that the decisions in Anadi Mukta Sadguru S. M. V. S. J. M. S. Trust v. V. R. Rudani, AIR 1989 SC 1607 (hereinafter referred to as "rudani"), and Dwarkadas Marfatia and Sons v. Board of Trustees, Bombay Port, AIR 1989 SC 1642 (hereinafter referred to as "bombay Port Trust"), clearly lay down that a mandamus is available even to enforce a non-statutory contract, like a contract of service. We do not think either of the decisions lays down any such proposition. We shall first take up Rudani.

( 43 ) IN Rudani (AIR 1989 SC 1607), the claim of the teachers against the educational institution was for terminal benefits and arrears of salary payable. They were not seeking reinstatement in service. The Division Bench distinguished the earlier decisions in Vaish Degree College v. Lakshmi Narain, AIR 1976 SC 888, and Deepak Kumar Biswas v. Director of Public Instruction, (1987) 2 SCC 252, as cases where the relief of reinstatement was sought. Having pointed out the said distinction, Jagannatha Shetty, J. speaking for the Bench, observed :"if the rights are purely of a private character no mandamus can Issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied "the learned Judge then referred to the fact that the appellant-educational institution was in receipt of Government aid. Such aid, it was pointed out, plays a major role in the control, maintenance and working of educational institutions; the function performed by the institution was public in nature; its activities were closely supervised by the University authorities, who had the power to determine the service conditions of the academic staff as well - in short, all the indicia of a `state' were present there. In the light of those facts, it was concluded :"the service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection by University decisions creating a legal right duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party. . . . "the learned Judge then discussed the development of law relating to mandamus in england, and referred to the fact that Art. 226 is much wider in its amplitude, as explained by Subba Rao, J. in Dwarkanath v. I. T. O. , AIR 1966 SC 81. The learned Judge observed that the term `authority' employed in Art. 226 must receive a liberal meaning unlike the term in Article 12. Reference was then made to Praga Tools Corporation v. C. V. Imanual, AIR 1969 SC 1306, where it was held, inter alia, that "a mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities". Thereafter, in paragraph 21 the learned Judge stated thus - which is the sheet-anchor of the petitioner's contention in this behalf :-"here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: "to be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract"; (Judicial Review of Administrative Act, 4th Ed. p. 540 ). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Art. 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition. . . . "in particular, reliance is upon the extract from De Smith, where it is stated that a duty enforceable by mandamus can arise even from a contract. We find that the two sentences from De Smith extracted in the above paragraph, are drawn from an old English decision, viz. , EX parte Napier, (1852) 18 QB 692 (re-printed in English Reports 118, at p. 261 ). Sir Charles James Napier was an Officer commanding certain land forces of Her Majesty and of the East India Company, then serving in Scinde (India ). Certain booty was seized in the course of their operations and Sir Napier claimed a share therein. The Company paid him a particular amount, but subsequently sought to deduct a part of it from his salary on the ground that there was excess payment. Thereupon, Sir Napier took out a motion for a rule against East India Company to show cause why a mandamus should not issue to pay to him the amount deducted from his salary. The question was, whether a mandamus can issue? The question was posed in the following words :-"the first question to be considered is, whether, if his pay had been withheld from him without any reason being assigned, there is any jurisdiction in this Court to order by mandamus the arrears which he claims to be paid to him by the East India Company. If there be not, we cannot entertain the question whether the East India Company were justified in making the deduction. "lord Campbell, C. J. , answered the question in the following words:-"the applicant must make out that there is a legal obligation on the East India company to pay him the sum he demands, and that he has no remedy to recover it by action. The latter point becomes material only when the former has been established for the existence of a legal right or obligation is the foundation of every writ of mandamus. But it seems to us that the attempt to show that there was any obligation on the East India Company, which the law will enforce, to pay any sum of money to Sir Charles Napier, either as Commander of the Queen's forces or as Commander of the native troops, has entirely failed. A legal obligation, which is the proper substratum of a mandamus, can only arise from common law, from statute, or from contract. Of course, the obligation here contended for cannot arise from the common law, and is not rested on contract. We have therefore to see whether there be any enactment of the Legislature by which it can be supported. . . "ultimately they held that there was no such enactment and, accordingly, dismissed the motion. In our opinion, the sentence extracted in De Smith should not be read in isolation but along side the first sentence of the paragraph. It contemplates a contract which gives rise to legal obligations, and which cannot be enforced in an ordinary Court of law. It is unimaginable that in 1851, an English Chief Justice would have said that an ordinary non-statutory contract can be enforced by way of a mandamus.

( 44 ) THE second decision cited by De Smith in support of the above statement is R. v. Secretary of State for War, (1891) 2 QB 326. In this case it was held by the Court of Appeal that a mandamus will not lie against the Secretary of State for War to compel him to carry out the terms of a Royal warrant regulating pay and retiring allowances of the officers and soldiers of the Army, inasmuch as no legal duty in relation to such officers and soldiers is imposed upon the Secretary of State either by statute or by common law. In the course of the judgment reference is made to the decision in Ex parte Napier (1852-18 QB 692), but even so it was held that a mandamus does not lie in that case.

( 45 ) WE are, therefore, of the opinion that paragraph 21 in Rudani (AIR 1989 SC 1607) cannot be understood as laying down a general proposition that a mandamus lies to enforce a non-statutory contract. Indeed, in paragraph 14 it was affirmed that, if the rights sought to be enforced are purely of private character, no mandamus can issue. It was also observed that where there is no public duty imposed upon a body, a mandamus would not lie. The statement in paragraph 21 must, therefore, be read consistent with what is stated in paragraph 14, and if the judgment is read as a whole and consistent with the decisions specifically referred to, and affirmed therein, it only means that for a mandamus to issue, there must be a public duty. All that was stated was that such public duty need not necessarily be imposed by a statute; it can be imposed by common law, custom, or even a statutory contract. This aspect has already been dealt with by us in para ( ) supra.

( 46 ) NOW coming to Bombay Port Trust case (AIR 1989 SC 1642), it stands as a category apart on its facts. Firstly, it was a case of Bombay Port Trust which is, undoubtedly, a public authority/public body. Exemption was granted to it from the operation of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Affirming the principle enunciated by Chagla, C. J. in Rampratap Jaidayal v. Dominion of India, AIR 1953 Bom 170, the Supreme Court held that exemption granted to a public body from the operation of the said Bombay Act is with the object that it would not act as a private landlord, but would act in public interest. This was treated as an implied condition of exemption. It was, therefore, held that the Port Trust is under a public duty to act fairly, and not as a private landlord. Moreover, since it is a `state' within the meaning of Art. 12, it is subject to the discipline of Art. 14. For these twin reasons, it was held, the actions/orders of the Port Trust, if violative of Art. 14, are amenable to writ jurisdiction. The observations made in paragraph 27 must be read as a whole. One single sentence cannot be taken out of context and construed as constituting a major departure from the established position. A reading of the judgment discloses its constant refrain - `where any special right or privilege is granted to any public or statutory body on the presumption that it must act in certain manner, such bodies must make good such presumption while acting by virtue of such privileges. Judicial review to oversee if such bodies are so acting is permissible.

( 47 ) WHILE on this subject, it is necessary to remind ourselves of certain basic truisms. It would be reasonable to assume that the Supreme Court - where it proposes to depart from an established line of authority and an established legal position - would not do so without even referring to its earlier decisions. It would not be reasonable on the part of the High Court to say that the Supreme Court would effect a radical departure from an established position without even referring to its earlier decisions, particularly where such position is established by decisions of larger Benches. Even if there are any words which do not strictly fit into the established legal position, it would be more reasonable to read them consistent with the well-established legal position than to infer a conflict, or to say on that basis that the previous law stands overruled. In the interest of certainty of law and judicial discipline, we ought to construe the several decisions of the Supreme Court as constituting motifs of a harmonious pattern. After all, judgments ought not to be read as statutes; they are authority for what they decide. A word here or a word there, should not be made a basis for infering inconsistency or conflict of opinion. Law does not develop in a casual manner. It develops by conscious, considered steps. The impact of Section 47 of A. P. Shops and Establishments Act, 1988 (Sec. 40 of A. P. Shops and Establishments Act, 1966) :

( 48 ) A co-operative society may be an industry if it satisfies the requirements of the definition of `industry' in S. 20) of the Industrial Disputes Act. In such a situation, the provisions of Chapters V-A and V-B will apply, and certain protection would be available to the employees in the matter of termination. Since some of the provisions of the said Chapters are based upon public policy, they will be enforced by way of a writ of mandamus, in case they are violated.

( 49 ) APART from the Industrial Disputes Act, the A. P. Shops and Establishments Act also applies to a co-operative society. The definition of `commercial establishment' in Section 2 (5) of the Shops and Establishments Act includes "an establishment under the management and control of a co-operative society". Section 77 of the Act expressly declares: "notwithstanding anything in the Andhra Pradesh Co-operative Societies Act, 1964, the provisions of this Act shall apply to the co-operative societies". (The A. P. Shops and Establishments Act too has received the assent of the President ). Section 47 of the Act provides a certain protection to employees of shops and establishments governed by the Act, in the matter of termination of their service. According to sub-section (1), "no employer shall, without a reasonable cause, terminate the service of an employee who has been in his employment continuously for a period of not less than six months, without giving such employee at least one month's notice in writing or wages in lieu thereof and in respect of an employee who has been in his employment continuously for the period of not less than one year, a service compensation amounting to fifteen days average wages for each year of continuous employment". It further requires that every order of termination shall be in writing, and that copy of such termination order shall be furnished to the Inspector having jurisdiction over the area within three days of such termination. It is provided by sub-section (2) that "the services of an employee shall not also be terminated for misconduct except for such acts or omission and in such manner as may be prescribed. . . . ". The Rules framed under the Act prescribe the acts and omissions which constitute misconduct, and the procedure to be followed while terminating the service of an employee.

( 50 ) IT would be evident that these statutory restrictions are placed upon the employer's power of termination not only in the interest of employees, but also in public interest. It follows, therefore, that where the mandatory requirements of Section 47 are not complied with, this Court may, in appropriate cases, interfere by way of a writ petition, and quash the termination. In several cases, the Supreme Court and this Court have quashed termination where it was effected in violation of Section 25-F of the Industrial Disputes Act. Section 47 (1) also provides certain similar restrictions, and the law would be the same in this behalf as well. This does not mean that in every case where S. 47 is violated, this Court would automatically interfere. It must be remembered that the Act provides for remedies in case of violation of the said provisions. Ordinarily, the parties ought to pursue the remedies provided by the Act and the Rules; but, in appropriate cases this Court can also interfere, notwithstanding that the employee has not chosen to avail of the remedies provided by the statute. In which cases, and in what circumstances would this Court interfere should be left to its judgment and discretion, to be exercised having regard to the facts of a given case.

( 51 ) SUMMARY : from the above discussion the following propositions emerge:- (I) If a particular co-operative society can be characterised as a 'state within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf), it would also be an `authority' within the meaning, and for the purpose, of Art. 226 of the Constitution. In such a situation, an order passed by a Society against its employee in violation of the bye-laws, can be corrected by way of a writ petition. This is not because the bye-laws have the force of law, but on the ground that having framed the bye-laws prescribing the service conditions of its employees, the Society must follow them, in the interest of fairness. If it is left to the sweet will and pleasure of the Society either to follow or not to follow the bye-laws, it would be inherently arbitrary and may very likely give rise to discriminatory treatment. A society, which is a `state', has to act in conformity with Art. 14 and, for that reason, it will be made to follow the bye-laws. (II) Even if a Society cannot be characterised as a `state' within the meaning of Art. 12, even so a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the Society. In such a case, it is unnecessary to go into the question whether the Society is being treated as a `person', or an `authority', within the meaning of Art. 226 of the Constitution. What is material is the nature of the statutory duty placed upon it, and the Court will enforce such statutory public duty. (III) The bye-laws made by a co-operative society registered under the A. P. Co-operative Societies Act do not have the force of law. They are in the nature of contract, terms of contract, between the Society and its employees, or between the Society and its members, as the case may be. Hence, where a Society cannot be characterised as a `state', the service conditions of its employees, governed by bye-laws, cannot be enforced through a writ petition. However, in the matter of termination of service of the employees of a co-operative society, S. 47 of the A. P. Shops and Establishments Act provides a certain protection, and since the said protection is based upon public policy, it will be enforced, in an appropriate case, by this Court under Art. 226 of the Constitution. Ordinarily, of course, an employee has to follow the remedies provided by the A. P. Shops and Establishments Act; but, in an appropriate case, this Court will interfere under Art. 226, if the violation of a statutory public duty is established. It is immaterial which Act or Rule casts such a statutory public duty. (IV) Mandamus, certiorari, and prohibition are public law remedies. They are not available to enforce private law rights. Every act of a society which may be a `state' within the meaning of Art. 12, does not necessarily belong to public, law field. A society, which is a `state', may have its private law rights just like a Government. A contractual obligation, which is not statutory, cannot be enforced by way of a writ petition under Art. 226 of the Constitution. Prior to entering into contract, however, Art. 14 operates, as explained by the Supreme Court in E. E. and C. Ltd. v. State of West Bengal, AIR 1975 SC 266, and Ramana Dayaram Shetty, AIR 1979 SC 1628. Applying the above principles, let us now examine the facts in these cases. W. A. No. 69/ 1986:

( 52 ) THE respondent herein (writ petitioner) was appointed on 18-11-1983 by the President of the appellant-Bank. His services were terminated by an order dated 27-6-1984. The order of termination says that the writ petitioner (respondent) was appointed by the President "without following the procedure suggested by the Registrar of Co-operative Societies in the matter of notifying vacancies in the dailies and selection by Ad hoc Committee after examination of the academic and training qualifications and tests required, etc. . . . . ", and recites further: "whereas it is now decided by the Management to set right all the irregular appointments made without reference to the procedure prescribed by the Registrar of Co-operative Societies, the services of Sri Seetarama Raju working as Manager temporarily are terminated with effect from 27-6-1984, A. M. ". There is no denying the fact that while terminating the service of the writ petitioner, the appellant-Bank has not complied with the requirements of Section 40 of the A. P. Shops and Establishments Act, 166, which was the provision then in force. Since the writ petitioner had put in more than six months' service, he was entitled to one month's notice in writing, or wages in lieu thereof. But, the appellant-Bank's case is that the said provision has no application to the writ petitioner inasmuch as his very appointment was irregular. It is contended that his appointment by the President without following the prescribed procedure was invalid, and for putting an end to such invalid appointment, S. 40 has no application. In our opinion, the matter requires due investigation by the authority constituted under the Act, and ought not to be pronounced upon by this Court in a writ petition. It is, accordingly, directed that if the respondent herein (writ petitioner) files an appeal before the appellate authority within two months from today, against the order of termination dated 27-6-1984, the same shall be entertained by the authority without raising objection on the ground of limitation, and shall be disposed of according to law. It is brought to our notice that in pursuance of the order of the learned single Judge dated 6-111985, the writ petitioner has been reinstated in service on 20-11-1985 and he is continuing in service. It is directed that pending the appeal aforementioned, the writ petitioner (respondent herein) shall be continued in service, His continuance in service shall, however, depend upon the result of the said appeal. Writ Appeal is allowed in the above terms. No costs. W. P, No. 13286/1988:

( 53 ) IN the year 1984 the Chittoor Dist. Co-operative Central Bank Ltd. , called for applications for appointment to the post of Manager. The petitioner says, as many as 350 candidates including himself applied and that, they were made to undergo a written test. Interviews were also notified to be held on-13-10-1984, but they were postponed, and since then nothing is heard of the said appointment. Meanwhile, it is complained, in the year 1988 the 4th respondent has been appointed to the said post, though the said person had never appeared in the written test held in 1984. This, it is complained, is denial of legitimate rights of the petitioner. It is not even alleged in the writ petition that the respondent-Bank is a `state' within the meaning of Art. 12, nor is it mentioned how the present writ petition is maintainable against the respondent. In the counter-affidavit filed by the 4th respondent it is stated that he has nothing to do with the 1984 interviews, that he is a physically handicapped person, and that in pursuance of the reservation of 3%o provided in favour of physically handicapped persons under G. O. Ms. No. 1034, G. A. D. , dt. 1-8-1966 he was appointed to the said post. According to him, the said post is reserved for physically handicapped persons. In this state of pleadings, and in the absence of any rights in the petitioner to compel the respondent-Bank to make an appointment in pursuance of the written test held by it, the writ petition must fail. The writ petition is, accordingly, dismissed. No costs. W. P. No. 1780/ 1989 :

( 54 ) THIS writ petition is filed by the Secretary of Nellore Co-operative House Building Society, against the order dt. 30-1-1989 made by the President of the Society, placing him under suspension pending enquiry into his conduct and behaviour. The allegation is that he had furnished false information with respect to the conduct of the General Body Meeting, which false information had resulted in action being taken against the Committee of the Society by the Co-operative authorities. In the writ petition it is not stated as to why the respondent-Society ought to be treated as `state' within the meaning of Art. 12, nor is it stated as to how a writ petition is maintainable against the respondent. It is also not brought to our notice that the A. P. Shops and Establishments Act provides any protection in the matter of suspension pending enquiry. In the circumstances, no interference is possible by this Court with the order of suspension pending enquiry. It is, however, open to the writ petitioner to approach the Co-operative authorities against the order of suspension. Under sub-rules (3) and (4) of Rule 72 of the A. P. Co-operative Societies Rules, 1964, the Registrar has got the overall supervisory jurisdiction and control over the service conditions of the Secretaries. Even otherwise, under S. 4 (2) of the Act, the Registrar has got power to give appropriate directions in the interest of co-operative movement, public interest, or in order to prevent the affairs of the society from being conducted in a manner detrimental to the interest of the members, depositors, and creditors. This power is wide enough to give appropriate directions even in a service matter, if such course is found expedient in the interest of factors mentioned in S. 4 (2 ). The enquiry, however, shall be concluded expeditiously.

( 55 ) THE writ petition is, accordingly, dismissed with the above observations. No costs. Order accordingly.