Cases Referred:

JEEVAN REDDY, J.

( 1 ) THE issue before the Full Bench is whether a writ petition lies against a Co-operative Society, and if it does, in what circumstances? Context is the enforcement of bye-laws governing service conditions of employees.

( 2 ) IN P. S. Naidu v. Chittoor District Co-operative Central Bank, (1977) 2 APLJ (HC) 282: (1978 Lab IC 528), a Division Bench of this Court held that an order of punishment made by a Society against its employee cannot be questioned by the latter by way of writ petition. The Bench pointed out "as far as this Court is concerned, it has uniformly taken the view that a writ petition does not lie against a co-operative society especially when it relates to matters concerning the Society and its employees. In C. V. Narasimha Naidu v. Chittoor District Co-operative Bank Ltd. , (1971) 2 APLJ (SN)16 ("w. P. No. 3788/1970 dated 7-6-1971 "), one of us (Kuppuswami, J.) following the decision of a Division Bench of this (Madras?) Court in Lakshmaiah v. Sri Perumbadur T. C. M. Society, AIR 1962 Mad 169, held that an order under Article 226 of the Constitution cannot be issued to quash the proceedings of a co-operative society. . . . The Bench noted that there appears to be a difference of opinion between the various High Courts in the country on that question, and observed "we would however prefer to rest our decision on the ground that what the petitioner is seeking to ensure is a purely contractual right, and in substance his case is that there has been a wrongful interference with his conditions of service by the stoppage of three increments. As the Supreme Court pointed out in Kulchindar Singh v. Hardayal Singh Brar, AIR 1976 SC 2216, where a petitioner is seeking to enforce a contract, he cannot invoke the jurisdiction under Article 226 by-passing the normal channels of civil litigation. Even in W. P. No. 3788 of 1970 dated 7-6-1971 : (reported in (1971) 2 APLJ (SN) 16), another ground for dismissing the writ petition was that in terminating the services of its own employees, the Cooperative Society cannot be said to be acting in the discharge of a public duty. In considering whether a particular body is an institution amenable to jurisdiction under Art. 226, it was observed that it is to be ascertained whether the particular act complained of is one which was done in, discharge of a public duty. A statutory body entrusted generally with the performance of a public duty may still perform several acts which cannot be considered to be public functions like entering into a contract for the purchase of goods or other property. While doing so, it is not discharging a public function. Similarly it was held that termination of services is one connected only with the contract of employment. A fortiori in this case, the stoppage of increments cannot be regarded to be a public function, but is only one connected with the contract. . "

( 3 ) SIMILAR view was taken by a learned single Judge in Ranga Reddy v. Co-operative Electricity Supply Society Ltd. , 1977 Andh LT 172.

( 4 ) IN V. Narasinga Rao v. Prudential Co-operative Urban Bank, (1989) 1 Andh LT 300 (1989 Lab IC 1971), a Division Bench comprising two of us (Jeevan Reddy and Syed Shah Mohammed Quadri, JJ.) examined this question. That was a case where an employee of the Prudential Co-operative Urban Bank was dismissed by the Bank in pursuance of a disciplinary enquiry, which order was challenged by way of a writ petition. The writ petition was referred to a Division Bench by a learned single Judge in view of the Bench decision in P. S. Naidu v. Chittoor District Co-operative Central Bank, (1977) 2 APLJ (HC) 282: (1978 Lab IC 528) and the decision in Ranga Reddy v. Co-operative Electric Supply Society Ltd. , 1977 Andh LT 172. It would be appropriate to notice the propositions flowing from the decision in Narasinga Rao (1989 Lab IC 1971) (Andh Pray. they are :- (I) The question whether a writ petition lies against a co-operative society or not, has to be examined in the light of the language employed in Article 226, which empowers this Court "to issue to any person or authority including in appropriate cases any Government. . . . . . directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose". The expressions person or authority have not been defined in the Constitution. The definition of `person in the General Clauses Act is of little help in determining its meaning and scope. The expression `authorities occurs in the definition of state contained in Article 12 of the Constitution, but even that does not throw any light on the meaning of the expression `authority . There ought to be several authorities falling outside the definition of `state but amenable to writ jurisdiction under Article 226. (II) Applying the tests evolved by the Supreme Court in Ramana Dayaram Shetty, AIR 1979 SC 1628, and other decisions, if it can be held that a particular Society can be characterised as `state`, a writ would lie against it. It was observed: "so far as the authorities which fall within the definition of `state in Art. 12 are concerned, it is admitted on all hands that they are amenable to writ jurisdiction of this Court. . . ". And again, "if a co-operative society in a given case can be held to be a state , a writ would lie against it". On an examination of the relevant material, however, it held that the Society concerned therein cannot be characterised as a `state . (III) The Society concerned therein cannot also be characterised as an `authority within the meaning of Art. 226, applying the definition of the expression `authority approved by the Supreme Court in Rajasthan State Electricity Board case, AIR 1967 SC 1857. (IV) A writ can undoubtedly issue against a co-operative society on the basis that it is a person within the meaning of Art. 226, as held by P. A. Choudary, J, in Gattaiah, (1981) 1 APLJ (HC) 280: (1981 Lab IC 942), whose decision was affirmed by a Division Bench in Writ Appeal No. 16/1981 dated 4-12-1981*. But this can be done only where the petitioner is seeking enforcement of a statutory public duty. No such duty was sought to be enforced in the case before it. * Reported in (1982) 1 Andh LT (NRC) 12 (V) Though the technical rules evolved in U. K. in the matter of these high prerogative writs do not shackle the High Courts in India while acting under Art. 226, the broad principles governing the same in English law must yet be kept in mind, as observed by Supreme Court. The writ is a public law remedy. (VI) The Supreme Court has held in Cooperative Central Bank Ltd. v. Industrial Tribunal, Hyderabad, AIR 1970 SC 245, that bye-laws of a society do not have the force of law. (VII) The principle of the decision of the Court of Appeal in Regina v. Criminal Injuries Compensation Board, Ex parte Lain, (1967) 2 QB 867, too cannot help the petitioner (therein) in maintaining the said writ petition, since the Society was not performing a public function akin to governmental function.

( 5 ) IN Ratanlal Koul v. Jammuand Kashmir Bank Ltd. , (1989) 3 Andh LT 177, one of us (M. Jagannadha Rao, J.) held that an order of dismissal of an employee by Jammu and Kashmir Bank - a company incorporated under the Companies Act - is amenable to writ jurisdiction, inasmuch as the Bank is a `state within the meaning of Art. 12 of the Constitution. The learned Judge referred to various decisions of the Supreme Court and this Court, including V. Narasinga Rao, (1989) 1 Andh LT 300: (1989 Lab IC 1971 ).

( 6 ) IN A. P. D. D. Co-operative Federation v. Milk Producers Co-operative Union Ltd. , (1989) 2 APLJ (HC) 455, however, a learned single Judge, M. N. Rao, J. , criticized the judgment in Narasinga Rao, (1989) 1 Andh LT 300 : (1989 Lab IC 1971) (Andh Pra), as laying down "apparently inexplicable and incongruous propositions". After an elaborate examination of the case law, the learned Judge enunciated three propositions in the following words :" (I) a statutory duty enjoined on a co-operative society can be enforced by a writ of mandamus even if the society is not an authority under Art. 12; (ii) if a co-operative society is funded by the State in full or substantial measure and the governmental control is deep and pervasive, it falls within the ambit of Art. 12 of the constitution and, therefore, its actions can be questioned by a writ of certiorari; (iii) since every bye-law of a co-operative society falling under Article 12 is comprehended by the inclusive definition of `law under Art. 13 (3) (a), it being void to the extent of its inconsistency with the provisions of Part III of the Constitution, this Court cannot decline to grant judicial review by a writ of certiorari against such a society on the sole ground that the relief claimed by the petitioner is founded on breach of bye-laws. "the learned Judge held further that the decision of the Supreme Court in Co-operative Central Bank, AIR 1970 SC 245 and its subsequent decision in B. K. Garad v. Nasik Merchant s Co-operative Bank Ltd. , AIR 1984 SC 192 (where too it was held that bye-laws of a Society are not statutory), "cannot be considered as binding precedents for the proposition that breach of bye-laws of a cooperative society falling within the ambit of Art. 12 are outside the purview of judicial review under Art. 226". The learned Judge observed: "as already noticed, those two decisions did not consider the law laid down by larger Benches. For the same reason, the decision of the Division Bench in Narasinga Rao s case (1989 Lab IC 1971) (Andh Pra) (supra) cannot be understood as laying down the proposition that breach of bye-laws does not give a valid cause of action for interference under Art. 226, even if the respondent is an `authority under Art. 12. . . . ". The decisions of the larger Benches of Supreme Court, referred to in the above extract, according to the learned Judge, are the decisions in Rashid Ahmed v. Municipal Board. Kairana, AIR 1950 SC 163 and Mohd. Yasin v. Town Area Committee, AIR 1952 SC 115. We shall refer to these decisions at a later point of time. It is this decision of the learned single Judge in A. P. D. D. Co-operative Federation, (1989) 2 APLJ (HC) 455, that has led to this reference to Full Bench.

( 7 ) THE respondent in W. A. No. 69/ 1986 (writ petitioner) is challenging the termination of his service by the appellant (a co-operative Bank, registered under the A. P. Co-operative Societies Act) on the ground that it is contrary to bye-laws of the appellant Society. Learned single Judge has upheld the ground and quashed the order. At the commencement of hearing, we indicated the following two propositions as beyond dispute. We asked the counsel to address themselves on other questions. The two propositions beyond dispute are : (I) If a particular Co-operative Society can be characterised as `state within the meaning of Art. 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 the 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 their service conditions, the Society must follow them in the interest of fairness. It cannot be left to the sweet will and pleasure of such Society to follow, or not to follow the bye-laws in a given case. If it is so left to its will and pleasure, it may choose to follow the bye-laws in one case and to ignore them altogether in another case; yet in another case it may choose to follow the bye-laws partly. This would undoubtedly lead to arbitrary and discriminatory results, violative of Art. 14 of the Constitution. Once a Society is characterised as `state within the meaning of Art. 12, it has to act in conformity with Art. 14, and the other Articles in Part III of the Constitution. This principle has been recognised in several decisions of this Court. In W. P. Nos. 106 and 107 of 1983 dated 8-11-1983, (1983) 2 Andh LT (SN) 98 (2) : (1984 Lab IC NOC 49), one of us (Jeevan Reddy, J.), dealing with the enforceability of non-statutory conditions of service obtaining under a Company, which was held to be a `state within the meaning of Art. 12, stated the rule thus : "where a Corporation, Company, or Society is held to be a `state within the meaning of Art. 12, it is governed by Parts III and IV of the Constitution. Such an entity has to act and operate consistent with, and subject to the limitations contained in these Parts. Among other obligations, it has to abide by Art. 14, which is held to be antithesis of arbitrariness, and which obliges the State to act reasonably in all its dealings. Now, if a Corporation frames certain Rules/regulations/bye-laws, governing a disciplinary enquiry and prescribing the procedure which has to be followed while holding such an enquiry, it has to follow them in all cases. It cannot claim any discretion or choice in the matter of following such Rules. Such a course, if permitted, would be inherently discriminatory. The Corporation would follow the Rules in one case, but not in the other. It will follow such of the Rules as it thinks convenient, but not the others. This will be purely arbitrary and capricious, besides being unreasonable. This will result in unequal treatment being meted out to similarly situated persons. The Court cannot say that because such Rules are not statutory, it will not enforce them. It is not really a question of enforceability of those Rules. The question is whether, by not following the Rules, or by violating the Rules framed by itself, the Corporation is not violating the fundamental rights of its employees, or other affected persons? The Court must hold these Corporations bound by their own Rules and Regulations, and must insist upon their following the Rules and Regulations. In the absence of Rules and Regulations, the Corporation has to act fairly, and where it has to act consistent with such principles. In such a situation it cannot be argued that the Court is in effect enforcing Rules and Regulations which do not have the force of law. As I have said, the question is not one of enforcing the Rules and Regulations, but one of ensuring the observance and protection of the fundamental rights of the affected persons. . ". Same principle was applied in M. V. Subhanna v. S. P. Nellon, (1986) APLJ (HC) 61, though in a different context. Applying this principle, it was held that this Court would enforce obedience to the orders of the A. P. Administrative Tribunal created under Cl. (3) of Art. 371-D. The Supreme Court too has affirmed this principle in B. S. Minhas v. Indian Statistical Institute, AIR 1984 SC 363. It said: "in view of the pronouncement of this Court on the point it must be held to be obligatory on the part of respondent No. 1 to follow the bye-laws, if the bye-laws have been framed for the conduct of its affairs, to avoid arbitrariness. Respondent No. 1 cannot, therefore, escape the liability for not following the procedure prescribed by bye-law 2. Compliance with this bye-law also seems to be necessary in the name of fair-play. " (II) Even if a particular Society cannot be characterised as a `state within the meaning of Art. 12 of the Constitution, even so a writ would lie against it to enforce a statutory public duty which a person is entitled to enforce. In such a situation, it is unnecessary to go into the question whether the Society is a `person or an `authority , within the meaning of Art. 226. What is material is the nature of the statutory duty placed upon it. This is the principle affirmed in Gattaiah, (1981) 1 APLJ (HC) 280: (1981 Lab IC 942), affirmed by the Bench in Writ Appeal No. 16/ 1981*. * Reported in (1982) 1 Andh LT (NRC) 12

( 8 ) WE shall now proceed to deal with the questions upon which there has been a difference of opinion. The first such question is : whether the bye-laws framed by a Cooperative Society have the force of law?

( 9 ) THE power to make law belongs to the Legislature and other persons and authorities, empowered by the Constitution. (We are not concerned herein with the other sources of law, namely, the custom or usage having the force of law, Personal Law laid down in Texts, or Judge-made law ). Besides the Parliament and the Legislatures, the Constitution has empowered the President and Governor to make laws in certain situations. Some of the examples are the power to issue Ordinances, conferred upon the President and Governor (Arts. 123 and 213); power to make Rules governing service conditions (proviso to Art. 309); Governor s power to make laws with respect to scheduled areas (Schedules V and VI), and the power to issue statutory orders conferred upon the President or other authorities under various provisions of the Constitution, like Cls. (1) and (3) of Art. 371-D. The main organ empowered to make laws is, of course, the Legislature - whether at the Centre or in the States. It is the prerogative of the Legislature -and Legislature alone - either to enact the law itself, or to delegate that function to a person or authority - so long as it does not delegate its essential legislative function. The law made by such delegate is called delegated legislation. The delegate may be a Government, University, Corporation, local authority, or even an individual. Several enactments in India, particularly those creating statutory Corporations, empower both the Government and the Corporation to make Rules/regulations to carry out the purposes of the enactment. Very often local authorities, like Municipal Corporations, are empowered to issue, what are called `bye-laws , governing various matters specified and to carry out generally the purposes of the Act. What is material, however, is not the name given to it, but its essential nature. The test is whether it is made by a delegate of the Legislature. Applying this test, it is difficult to say that bye-laws constitute delegated legislation. Section 130 of the A. P. Co-operative Societies Act confers the rule-making power upon the Government to carry out all, or any of the purposes of the Act. The Rules so made are a species of delegated legislation. But, bye-laws are not. They cannot be equated to Rules. The bye-laws have to be framed and submitted by a Society at the time of its registration; it is a condition of registration. All that the Act says is that, before registering a Society, the Registrar should be satisfied that "the proposed bye-laws are not contrary to the provisions of the Act and the Rules". Section 16 provides for the manner in which the bye-laws of a Society can be amended. It says that an amendment to the bye-laws of a Society shall not be valid unless it is approved by the Registrar. Power is also conferred upon the Registrar to direct the amendment of a bye-law, and in case of default or refusal of the society, he can himself amend such bye-laws in the manner indicated by him. These bye-laws can by no stretch of imagination be characterised as delegated legislation.

( 10 ) APART from the above theoretical discussion, the Supreme Court has specifically rules, in the case of A. P. Co-operative Societies Act itself, that the bye-laws made by a Society do not have the force of law. In Co-operative Central Bank Ltd. v. Industrial Tribunal, Hyderabad, AIR 1970 SC 245, the Supreme Court had this to say :"we are unable to accept the submission that the bye-laws of a co-operative society framed in pursuance of the provisions of the Act can be held to be law or to have the force of law. It has no doubt been held that, if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a co-operative society is empowered by the Act to make. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society. They may be binding between the persons affected by them, but they do not have the force of a statute. In respect of bye-laws laying down conditions of service of the employees of a society, the bye-laws would be binding between the society and the employees just in the same manner as conditions of service laid down by contract between the parties. In fact, after such bye-laws laying down the conditions of service are made and any person enters the employment of a society those conditions of service will have to be treated as conditions accepted by the employee when entering the service and will thus bind him like conditions of service specifically forming part of the contract of service. The bye-laws that can be framed by a society under the Act are similar in nature to the Articles of Association of a Company incorporated under the Companies Act and such Articles of Association have never been held to have the force of law. . . . "

( 11 ) THE decision in Co-operative Central Bank AIR 1970 SC 245 was followed by the Supreme Court in B. K. Garad v. Nasik Merchants Co-operative Bank Ltd. , AIR 1984 SC 192. It was held :"section 73-B (of Maharashtra Co-operative Societies Act) provides a legislative mandate. Rule 61 has a status of subsidiary legislation or delegated legislation. Bye-law of a co-operative society can at best have the status of an Article of Association of a company governed by the Companies Act, 1956 and as held by this Court in Co-operative Central Bank Ltd. , v. Addl. Industrial Tribunal, Andhra Pradesh AIR 1970 SC 245 the bye-laws of a co-operative society framed in pursuance of the provision of the relevant Act cannot be held to be law or to have the force of law. They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law". In our opinion, there cannot be a clearer exposition of law. No doubt, both these decisions are rendered by Division Benches comprising three Judges each.

( 12 ) NOW, let us examine whether these decisions can be said to be not binding, on the ground that while laying down the aforesaid principle, the two Division Benches have failed to note the earlier decisions of larger Benches, as pointed out by the learned single Judge in A. P. D. D. C. Federation (1989) 2 APLJ (HC) 455. The earlier decisions which, according to the learned single Judge, laid down a contrary proposition, are Rashid Ahmed v. Municipal Board, Kairana AIR 1950 SC 163 and Mohd. Yasin v. Town Area Committee AIR 1952 SC 115. We have carefully gone through the decision in Rashid Ahmed v. Municipal Board. There is no discussion in this decision with respect to the nature of the bye-laws made by the Municipal Board. Nor is there any discussion, whether they have the force of law. (The bye-laws considered therein were made under Section 298 of the U. P. Municipalities Act, 1916 and as we shall presently demonstrate, constituted delegated legislation. Neither party contended that they do not have force of law. Indeed, such a contention could not have been raised, since, being delegated legislation, they did have force of law. So far as the decision goes, all it did was to declare that the restrictions placed by certain bye-laws were more than reasonable restrictions contemplated by Art. 19 (6), and therefore void under Art. 13 (1) of the Constitution. The learned single Judge has quoted the following two sentences from the said judgment:-"these certainly are more than reasonable restrictions on the petitioners as are contemplated by Clause (6) of Article 19. This being the position the bye-laws would be void under Art. 13 (1) of the Constitution". In our opinion, the said two sentences cannot be read as amounting to a decision that the bye-laws even where they do not constitute delegated legislation have the force of law, nor can the subsequent decisions of the Supreme Court be faulted on the ground that they failed to take note of the said two sentences.

( 13 ) NOW coming to Mohd. Yasin v. Town Area Committee AIR 1952 SC 115, this again was a case where the Court was considering the question whether certain bye-laws made by the Town Area Committee, Jalalabad, (under the U. P. Municipalities Act, 1916) offended the fundamental right guaranteed by Art. 19 (1) (g) of the Constitution and not saved by Clause (6) thereof. The argument of the petitioner therein was that the bye-laws had the effect of prohibiting him completely from carrying on any business. Upholding the said contention, the following observations were made (which are relied upon by the learned single Judge in A. P. D. D. C. Federation (1989-2 APLJ (HC) 455) as running counter to the principle of the decisions in Co-operative Central Bank AIR 1970 SC 245 and B. K. Garad AIR 1984 SC 192:-"in our opinion, the bye-laws which impose a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of the Town Area Committee including any public street, are obviously ultra vires the powers of the respondent Committee and, therefore, the bye-laws cannot be said to constitute a valid law which alone may, under Article 19 (6) of the Constitution, impose a restriction on the right conferred by Art. 19 (1) (g ). In the absence of any valid law authorising it, such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by Article 19 (1) (g) of our Constitution". With great respect to the learned single Judge, we are unable to read the above observations as laying down the proposition that bye-laws do have the force of law, irrespective of the manner in which, and the authority under which they are made. The Supreme Court said in the first instance that the impugned bye-laws were ultra vires the rule-making power of the Town Area Committee and, accordingly, observed that the bye-laws cannot, therefore, be said to constitute valid law, within the meaning of Article 19 (6) of the Constitution. From this it does not follow that the Supreme Court laid down that bye-laws, by whomsoever made and under whatsoever enactment, have the force of law. In this decision too, the question whether the bye-laws have the force of law was neither raised, nor considered.

( 14 ) IN this connection, it is important to remember that the Bye-laws considered in these two cases were not the bye-laws made by a Co-operative Society much less under a Co-operative Societies Act. Though called "bye-Laws", they constituted delegated legislation, having been made in exercise of the power conferred by Section 298 of the U. P. Municipalities Act, 1916. Section 296 of the Act empowered the Provincial Government to make Rules; Section 297 empowered the Municipal Board to frame Regulations, and Section 298 empowered the Municipal Board to frame Bye-laws. All of them are species of delegated legislation, also called subordinate legislation. In so far as material, the three Sections read as follows:-"296 (1) The State Government shall make rules consistent with this Act in respect of the matters described in Sections 95, 127, 153, and 235. (2) The State Government may make rules consistent with this Act. . . ". "297 (1) A board may, by special resolution, make regulations consistent with this Act, or with any rule under Section 296, or regulation under sub-section (2) made by the State Government, as to all or any of the following matters :- xx xx xx xx xx (2) Provided that the State Government may, if it thinks fit, make regulations consistent with this Act in respect of any of the matters specified in clauses (d) and (h) to (n) of sub-section (1), and any regulations so made shall have the effect of rescinding any regulation made by the Board under the said sub-section in respect of the same matter or inconsistent therewith. . . . ""298 (1) A board by special resolution may, and where required by the State Government shall, make bye-laws applicable to the whole or any part of the municipality, consistent with this Act and with any rule, for the purpose of promoting or maintaining the health, safety and convenience of the inhabitant of the municipality and for the furtherance of municipal Administration under this Act. (2) In particular, and without prejudice to the generality of the power conferred by sub-section (1), the board of a municipality, wherever situated, may in the exercise of the said power, make any bye-law described in List I below, and the board of a municipality, wholly, or in part, situated in hilly tract may further make, in the exercise of the said power, any bye-law described in List II below".

( 15 ) INDEED, in Dy. Commissioner, Kheri v. President; Notified Area Committee AIR 1949 All 683, it was held that the bye-laws so made have the force of law.

( 16 ) WE are, therefore, of the firm opinion that the decisions of the Supreme Court in Co-operative Central Bank (AIR 1970 SC 245) end B. K. Garad (AIR 1984 SC 192) cannot be said to have been wrongly decided on the ground nor can they be ignored on the ground that they did not take note of the earlier decisions in Rashid Ahmed AIR 1950 SC 163 and Mohd. Yasin AIR 1952 SC 115. Co-operative Central Bank was decided under the A. P. Co-operative Societies Act. It expressly lays down, after a good amount of discussion, that bye-laws framed by a cooperative society as contemplated by the Act do not have the force of law. This decision was specifically referred to, and followed in the later decision in B. K. Garad v. Nasik Merchants Co-operative Bank Ltd. (AIR 1984 SC 192 ). The earlier cases neither arose under the Co-operative Societies Act, nor did they deal with the said question. The bye-laws considered in those cases are qualitatively different as explained hereinbefore, and bear no similarity to the bye-laws of a Co-operative Society under the A. P. Act. It would, therefore, not be right to infer a contradiction between the said earlier decisions and the two later decisions, or to hold that the subsequent decisions do not represent good law and need not be followed by this Court.

( 17 ) THE learned single Judge further relied upon the definition of `law in sub-clause (a) of Clause (3) of Article 13 in support of his proposition that the bye-laws made by a co-operative society do have the force of law. Clauses (1) to (3) of Art. 13 read as follows:-"13. Laws inconsistent with or in derogation of the fundamental rights : (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,- (a) `law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) `laws in force includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. . . ". The object behind Art. 13 (2) is plain. The state , as defined in Art. 12, shall not make any law, whether called Ordinance, rule, bye-law, order, or regulation, which takes away, or abridges the fundamental rights conferred by Part III. This does not mean that it can make a rule, bye-law, or regulation, not having the force of law, but which takes away or abridges the fundamental rights. The latter cannot stand on a better footing than the former. It is for the above purpose that the definition of `law was put in clause (3) (a) in expansive terms. Now, the definition of `state in Art. 12 expressly includes local authorities. By the date of commencement of the Constitution, bye-laws made by local authorities, like Municipal authorities, was a well-recognized and well-established practice. Although called `bye-laws , they constituted, and do constitute, delegated legislation. We must emphasize again that it is not the label that matters, but the true nature of it the source. Indeed, it has been repeatedly held that a rule or instruction, which does not have the force of law, is not `law as defined in Article 13 (3) (a ). Suffice it to refer to two decisions of Supreme Court. In D. Bhuvan Mohan Patnaik v. State of A. P. , AIR 1974, SC 2092, the Court held :". . . . THE installation of the high-voltage wires lacks a statutory basis and seems to have been devised on the strength of departmental instructions. Such instructions are neither `law within the meaning of Art. 13 (3) (a) nor are they "procedure established by law" within the meaning of Article 21 of the Constitution. Therefore, if the petitioners are right in their contention that the mechanism constitutes an infringement of any of the fundamental rights available to them, they would be entitled to the relief sought by them that the mechanism be dismantled. The State has not justified the installation of the mechanism on the basis of a `law or a `procedure established by law . . . ".

( 18 ) IN Dwarka Nath v. Bihar State AIR 1959 SC 249, the Court was considering whether Art. 182 of the Bihar Education Code is `law within the meaning of Art. 31 (1) of the Constitution. If it were law, then the deprivation of property provided thereby, could not have been complained of as being violative of Art. 31 (1), since the deprivation in such a case would be by authority of law, within the meaning of Art. 31 (1 ). Dealing with the said aspect, the Supreme Court had this to say :"as already indicated, proceeding on the assumption that the land and the building of the school, are vested in the petitioners as the Managing Committee of the school, have the petitioners been divested of their rights by authority of law, under Art. 31 (1) of the Constitution ? If the amended Art. 182 of the Code, extracted above, is law within the meaning of the article aforesaid of the Constitution, the petitioners cannot have any just complaint if they have been or are being deprived of those properties, because it is clear that the petitioners are holding the properties not in their individual absolute rights but only as trustees, for the purposes of the school. They have the properties vested in them because they are the Managing Committee. If they have been divested of those rights by the authority of law, this petition under Art. 32 of the Constitution must stand dismissed. If, on the other hand, the amended Art. 182 of the Education Code, is not law within the meaning of Art. 13 of the Constitution, then the petitioners cannot be deprived of their right to hold the properties as trustees, by a mere fiat of the officials of the Government of Bihar. Though, in the affidavits sworn on behalf of the respondents, it was claimed that the provisions of the Bihar Education Code, had the force of law, it has been conceded by the learned Solicitor General, appearing on behalf of the respondents, that he could not justify that contention. The preface to the latest edition (7th Edition) printed in 1957, of the Bihar Education Code (1944), contains the following statement by the then Director of Public Instruction, Bihar : "the Bihar Education Code is compiled in the office of the Director of Public Instruction, Bihar, and is issued under his authority. Those articles, below which no reference to higher authority is cited, have the same authority as circular and other orders of the Director". It is clear, therefore, from the portion of the preface extracted above, that Art. 182 of the Code has no greater sanction than an administrative order or rule, and is not based on any statutory authority or other authority which could give it the force of law. Naturally, therefore, the learned Solicitor-General, with his usual fairness, conceded that the article relied upon by the respondents as having the force of law, has no such force, and could not, therefore, deprive the petitioners of their rights in the properties aforesaid. . . . ".

( 19 ) UNDER clauses (2) to (6) of Art. 19, it has been repeatedly held that the `law contemplated therein is statutory law or an instrument/ order/ notification having the force of law, but not those not having the force of law. We do not think it necessary to cite decisions in support of this proposition.

( 20 ) SEERVAI in his treatise "constitutional Law of India", elaborates the said definition in the following words:-"article 13 (3) (a) defines `law very widely by inclusive definition. It does not expressly include a law enacted by the Legislature, for such an enactment is obviously law. The definition of law includes: (i) an Ordinance, because it is made in the exercise of the legislative powers of the Executive; (ii) an order, bye-law, rule, regulation, and notification having the force of law, because ordinarily they form the category of subordinate delegated legislation and are not enacted by the Legislature; (iii) custom or usage having the force of law, because they are not enacted law at all. This extended definition appears to have been given the law in order to forestall a possible contention that `law can only mean law enacted by the Legislature. . . ". It, therefore, cannot be said that merely because Art. 13 (3) (a) includes bye-laws within the definition of `law , a bye-law made by a co-operated society governed by A. P. Co-operative Societies Act is law, or has the force of law.

( 21 ) MUNICIPALITIES and Gram Panchayats, it may be noted, are illustrations of local-self government. Co-operative Societies, on the other hand, represent a collective co-operative effort of a group of persons to improve their economic well-being. A co-operative society stands no comparison to Municipalities and Gram Panchayats. The bye-laws made by a local authority bind all the persons within its area, whereas the byelaws of a Society bind only its members and its employees. The former is law. The latter is only a contract. We have already referred to the nature of bye-laws made under the U. P. Municipalities Act. A few more illustrations nearer home would suffice. The position obtaining under the Madras District Municipalities Act was the same. Sections 303 and 306 of the Madras Act correspond to Sections 296 and 298 of the U. P. Act. In our own State, position is no different. Section 330 of the A. P. Municipalities Act confers power upon the Municipal Council to make bye-laws to carry out the purposes of the Act. The language of Section 330 is akin to the language of Section 326, which confers power upon the Government to make Rules. Section 326 (1) reads:-" (1) The Government may by notification in A. P. Gazette make rules for carrying on all or any of the purposes of this Act". Section 330, in so far as it is relevant, reads :-"the Council may make bye-laws not inconsistent with this Act or with any other law, to provide - (i) for all matters expressly required or allowed by this Act to be provided for. . . . . . . . XX XX XX XX XX (12 (a) for the regulation of building. . . . . . . (iii) in general for securing cleanliness, safety and order and good Government and well being of the Municipality and for carrying out all the purposes of this Act. . . ".

( 22 ) SECTION 331 confers upon the Council the power to give retrospective effect to bye-laws made with regard to certain specified matters. Sections 332 and 333, of course, provide for the manner of making bye-laws and their approval by the Government, when alone they become effective. Sections 585 and 586 of the Hyderabad Municipal Corporation Act, 1955, correspond to Sections 330 and 331 of A. P. Municipalities Act. In this connection, it may be noted that Regulations which the statutory Corporations are empowered to make under various enactments, like Road Transport Corporations Act and Air Corporations Act also require that the Regulations should not be inconsistent with the Rules made under the Act, and further that they must be made with the previous approval of the Central Government. That does not affect their nature or legal effect. For example, see Section 45 (3) of Air Corporations Act, Section 49 (1) of L. I. C. Act, Section 42 (1) of Warehousing Corporations Act, and so on.

( 23 ) THE learned single Judge in A. P. D. D. C. Federation (1989-2 APLJ (HC) 455) also relied upon two other later decisions of the Supreme Court in Central Inland Water Transport Corporation Ltd. v. Brojo Nath AIR 1986 SC 1571 (wherein the Central Inland Water Transport Corporation Ltd. a Government of India Undertaking, was held to be `state within the meaning of Article 12, and therefore subject to the discipline of Art. 14), and B. S. Minhas v. Indian Statistical Institute AIR 1984 SC 363. In both cases, the authority was held to be a `state . The observations quoted from the latter decision only go to show that having made the bye-law, the Indian Statistical Institute was bound to follow them so as to avoid arbitrariness. In this case too, it was held that Indian Statistical Institute was an "authority" and, therefore, it was observed that it should follow the bye-laws made by it prescribing the procedure for appointment, inasmuch as not following the same would violate Article 14. None of these cases can be said to low down a proposition contrary to the express enunciation in Co-operative Central Bank (AIR 1970 SC 245) and B. K. Garad (AIR 1984 SC 192 ).

( 24 ) IN any event, once there was a decision of the Supreme Court under the very Act with which we are concerned herein, judicial discipline demands that we should follow it, unless there is another decision of the Supreme Court directly in conflict with it. No such conflict can even be suggested between the two earlier cases relating to Municipal Bye-Laws, and the case in Co-operative Central Bank.

( 25 ) FOR the above reasons, we hold that the bye-laws of a Co-operative Society governed by the A. P. Co-operative Societies Act, do not have the force of law, as held by the Supreme Court in Co-operative Central Bank. This is so even where the Society which made them is characterized as a `state within the meaning of Article 12. This does not however mean that, where a particular co-operative society can be characterized as a `state , it is not bound to follow those bye-laws. We have already indicated hereinbefore that such society must follow its bye-laws, and it would be compelled to follow such bye-laws by way of a writ petition, so as to ensure fair and equal treatment the mandate of Article 14. Whether the appellant in W. A. No. 69/1986 (Sree Konaseema Co-operative Central Bank, which merged with Kakinada District Co-operative Central Bank on 31-3-1987) is a `state within the meaning of Art. 12?

( 26 ) THAT a co-operative society can also be an `authority within the meaning of Article 12 and therefore a state , is beyond dispute. The tests for determining whether a particular Society or Company is an agency or instrumentality of the State, so that it can be characterized as an `authority within the meaning of Art. 12, have been enunciated in Ramana Dayaram Shetty (AIR 1979 SC 1628) and affirmed in Ajay Hasia v. Khalid Mujib AIR 1981 SC 487. They are the following :-" (1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (3) It may also be a relevant factor. . . . . . . whether the corporation enjoys monopoly status which is the State conferred or State protected. (4) Existence of "deep and pervasive State control" may afford an indication that the Corporation is a State agency or instrumentality. (5) If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (6) "specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference" of the corporation being an instrumentality or agency of Government. . . ". It is, however, emphasized that a Corporation to be characterized as an instrumentality or agency of State need not satisfy all the six tests. While it is nowhere stated that satisfaction of even one of the six tests would suffice, the Supreme Court has refused to specify how many of them should be satisfied in a given case. It is left to be determined in each case, having regard to the totality of the circumstances.

( 27 ) OF the six tests indicated above, tests 2, 3 and 6 are inapplicable in the present case, and may be dealt with in the first instance to clear the ground. (2) There is no financial assistance of the State, much less is it of such an extent as to meet almost all the expenditure of the Corporation. The Government s contribution is only in the shape of share capital to a small extent, as we shall presently indicate. Some loans may also have been given to the appellant-Bank either by the Government, or by other public financial institutions, but particulars of such loans are not furnished. Be that as it may, giving loans is not financial assistance contemplated by second test. It means a grant as in the case of educational institutions. Grant is distinct from loan. What is given to educational institutions is not a load, but a grant, and that is why decided cases treat the educational institutions as a category apart. We do not, of course, rule out the possibility of a society in receipt of a grant from the Government; but, the appellant Society is not one such. (3) The appellant-Bank also does not enjoy a monopoly status which is conferred, or protected by the State. It is not suggested that the societies to which loans are given by the appellant-Bank are precluded from receiving loans from any other source. (6) The sixth test too is inapplicable, inasmuch as this is not a case where the business carried on by appellant-Bank was previously carried on by a department of the Government, nor is it a case were the work of a department of the Government is transferred to the appellant-society.

( 28 ) WE now proceed to examine whether the other three tests, namely, 1, 4 and 5 are satisfied in this case. (1) Government s contribution to the share-capital : according to the information furnished by Sri K. Srinivasa Murthy, learned counsel for the appellant-Bank, the Government s shareholding in the Kakinada District Co-operative Central Bank is in the following proportion : total paid-up share capital as on 30-6-1987 : Rs. 693. 33 Lakhs - out of which the State Government held shares worth 79. 10 Lakhs. Total paid-up share capital as on 30-6-1988 : Rs. 689. 35 Lakhs - out of which the Government s share-holding was 78. 40 Lakhs. (The position in December 1988 is practically the same ). It is thus clear that the Government s shareholding is in the region of 10%, which can be said to be negligible. There is another aspect to this test which is emphasised by a Division Bench of the Patna High Court in H. N. Banker v. State of Bihar (1986) 2 Serv LR 256 : (1985 Lab IC 1807 ). It is pointed out in the said decision that even though the Government owns a substantial number of shares of a co-operative society, still it would be having only one vote, just like an individual share holder, holding one share. Accordingly, it is pointed out, the importance given to shareholding in the first test enunciated by the Supreme Court, loses much of its significance in the case of a co-operative society. The said test has been evolved, says the Bench, keeping in mind the normal run of companies/corporations registered under the Companies Act, where share-holding carries with it the power of control and management of the company, and it is for that reason, they said, satisfaction of this test goes a long way in establishing that the body is an agency or instrumentality of the State. So far as our Act is concerned, the position is practically the same. Section 25 (1) says that, subject to such Rules as may be made in this behalf, every member shall have one vote in the affairs of the society and shall exercise his vote in person, and not by proxy. The proviso to Section 25 (2) says specifically that no nominee of the Government or representative of the financing Bank shall be entitled to participate in or vote at any election. Moreover, Section 33 (1) provides that where the Government has subscribed to the share-capital of a society, or guaranteed the repayment of principal and payment of interest on debentures issues by a society, or has guaranteed the repayment of principal and payment of interest on loans and advances to the society, the Government shall have the right to nominate to the committee of such Society not more than three persons as members, or one-third of the total number of members of the committee, whichever is less. Thus, even in a case where the Government s shareholding is 95%, its representation on the committee of the society cannot exceed one third of the total number of members of the committee. So far as the General Body is concerned, it has only one vote. This does not, however, mean that the first test evolved by the Supreme Court has no relevance, or has no weight in the case of a co-operative society; the Government s representatives, though in minority in the committee, may yet carry great weight, consistent with the largeness of the interest they represent. All that we say is that, such large share-holding does not have the same importance as, say, in the case of a company incorporated under the Companies Act. A substantial holding of share capital in a society by the Government would not by itself go a long way towards indicating that such society is an instrumentality or agency of the State. (4) Deep and pervasive State control : now, what does deep and pervasive State control mean? Does every legislative regulation constitute State control, or does State control mean only the control vesting in the executive, either under a statute or under the constitution (including Memorandum) and bye-laws (including Articles) of the body. This question becomes relevant whenever the Court proceeds to examine whether a company (incorporated under the Companies Act) or a Society (whether registered under the Societies Registration Act or Co-operative Societies Act) can be characterized as a `state within the meaning of Art. 12? (In case of statutory Corporations, created by legislative Acts, normally to perform statutory public functions, such a question may not arise, since by their very nature and constitution, they are liable to be characterized as `state see test No. 3 at page 136 of B. Satyanarayana v. State AIR 1981 Andh Pra 125 (FB ). Our considered view is that in case of non-statutory Corporations/companies and Societies, etc. State control means the control vesting in the Government or its officers either by the statute or by the constitution/ Memorandum of Association/bye-laws/articles of Association of the Society or Company concerned. Take for example, the Companies Act. It regulates the incorporation, working and winding up of the company in elaborate detail. Governmental authorities are vested with various powers to ensure observance of, and compliance with the regulatory provisions. But all this is designed not to vest control (over the Company) in the Government but to ensure the proper working of the company the main object being protecting the interest and rights of share-holders, investing public, employees and others having dealings with the company. On a consideration of the provisions of the Companies Act. it is not possible to say that the control vested by the Act in the Government/company Law Board and Registrar is deep and pervasive control, within the meaning of fourth test aforementioned. But, when we come to examine the provisions of the A. P. Co-operative Societies Act, it emerges that the control vested in the Government and Registrar over the societies is deeper and qualitatively different. We shall refer to some of those provisions :- (i) Section 4 (2) confers upon the Registrar the power to issue binding directions from time to time "in the interest of the co-operative movement, or 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 or depositors, or creditors thereof". (ii) Section 15 confers upon the Registrar the power to divide a society into more than one society, or to amalgamate two or more societies into one society, if in his opinion such a course is necessary "in the interest of societies or of the co-operative movement". (iii) Section 15-A confers upon the Registrar the power to amalgamate or merge any society with another such society, or to divide a society and/or to restrict, or transfer the area of operation of the society, or to liquidate a society, if in his opinion such a course is necessary for ensuring economic viability of the concerned society, or to avoid overlapping or conflict of jurisdiction of societies, or even "for securing proper management of a society". Such a step can be taken also in the interest of co-operative movement in general, or for any other reason in public interest. (iv) Section 16 (5) confers upon the Registrar the power to amend the bye-laws of a society if he thinks it necessary or desirable in the interest of such society, or of the cooperative movement. (v) Under Section 31 read with Rule 22, the election to the committee of a co-operative society (except in the case of certain categories of small societies) is conducted by a government official. In many cases, elections have been postponed by the Government and Special Officers appointed under Section 32 (7) to manage the affairs of the society though such a course has been frowned upon by this Court. (vi) Section 34 empowers the Registrar to supersede the committee of a society if, in his opinion, "the committee is not functioning properly, or wilfully disobeys or fails to comply wilfully with any lawful order or direction issued by the Registrar under this Act or the Rules". (vii) Section 45 prescribes the mode in which the net profits of a society are to be distributed. It is not open to the society to distribute the entire net profit by way of dividends. Section 46 controls and prescribes the manner of investment of funds also. Section 47 (2) prohibits a society from granting a loan to any person other than a member. (viii) Section 59 empowers the Registrar to direct the committee of a society to suspend, pending investigation, any paid-officer or servant of the society if, in his opinion, there is prima facie evidence against such person. (ix) Section 60 empowers the Registrar to direct any member of the committee to make good to the society the amount misappropriated by him, or reimburse the society for the loss caused by his wilful negligence. (x) Sections 70, 71, and 74 empower the Registrar to recover any amount due to a society from its members as also other amounts specified in those Sections, as if they are arrears of land-revenue. Similarly, Section 101 empowers the Registrar to recover any loan due to an Agricultural Development Bank from its members as if it is arrears of land-revenue. Section 102 empowers the Collector also to make similar recoveries in certain situations. (xi) Section 116-A confers upon the Registrar the power to constitute a common cadre in respect of certain posts in Co-operative Banks, A. P. Co-operative Dairy Development Federation, Spinning Millis, and sugar factories. The Registrar is also empowered to prescribe the conditions of service of such cadres. Section 116-B empowers the Government to give binding directions to societies to reserve posts in favour of weaker sections of society. Under Section 116-C the staffing pattern, qualifications, pay scales, etc. of the employees of a society must receive prior approval of the Registrar before they become effective. (xii) Section 131 empowers the Government to issue such orders or directions, either generally or in any particular matter, as it may consider necessary, to the Registrar of Co-operative Societies. The Registrar is bound to give effect to such orders and report back to the Government.

( 31 ) THE celebrated work of Asaf A. A. Fyzee `outlines of Muhammadan Law' (Fourth Edition) explains the principle for the payment of maintenance in the following words "the wife's right to maintenance commences on divorce, or when she comes to know of the divorce, and ceases on the death of her husband, for her right of inheritance supervenes. The widow is therefore not entitled to maintenance during the iddat of death. It is otherwise in the case of divorce, where she is entitled to maintenance during Iddat. " the principle has been followed in Mohd. Shamsuddin v. Noor Jahan, AIR 1955 Hyderabad 144 and Chandbi v. Badesha, (1960) 62 Bom LR866.

( 32 ) IT is also to be noted that in the ancient authority of Fatawai Alamgiri, it is stated that a woman undergoing Iddat on account of Talak (divorce) is entitled to maintenance and lodging, whether the Talak be revocable or irrevocable, and whether she be pregnant or not. The principle of this is that when separation is induced by any cause proceeding from the husband, or by any cause proceeding from the wife in exercise of a right, or by any cause proceeding from a third party, the wife is entitled to maintenance during her Iddat.

( 33 ) THE sum and substance of the above discussion is that there is no difference of opinion among the authorities - Sunnis or Shias, that a divorced Muslim woman is entitled to maintenance from her husband only during the period of Iddat. Section 3 of the Act of 1986, therefore, reaffirms the same principle in so far as it provides that "notwithstanding anything contained in any other law for the time being in force, a divorced wife is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband:" We have already discussed in detail the concept of a reasonable and fair provision and maintenance and we have come to the conclusion that even if it is taken for granted that, a reasonable and fair provision is to be made apart from maintenance, that also will have to be for the period of Iddat only and shall be made and paid to the wife within the period of Iddat. The liability of the husband in any case cannot transgress the duration of Iddat.

( 34 ) IT has been further argued that the, payment of reasonable and fair provision for future has been made to ensure that the divorced woman is not left in the lurch after the pronouncement of Talak. A fair reading of the provisions of Clauses (a) to (d) of subsection (1) of Section 3 clearly shows that there is no strength in the argument that a Muslim woman is left in the lurch when she is divorced by her husband. We want to test this argument in the light of Clauses (a) to (d) of sub-section (1) of Section 3. It is mentioned under Clause (a) that she is entitled to maintenance during the period of Iddat; under Clause (b) she is entitled to claim maintenance for the children born to her before or after her divorce from her former husband for a period of two years from the respective dates of birth of the children; under Clause (c) she can claim 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. This is based upon the concept that marriage under Muslim law is a civil contract giving rise to certain rights and obligations between the husband and the wife who are parties to such a contract. Therefore, under Clause (c), when the marriage is dissolved, she is entitled to claim her entire Mahr or Dower amount from her husband. Under Clause (d), she can claim 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. The words used in this clause are "all the properties" which include moveable as well as immoveable properties. The divorced woman will, therefore, be entitled to lay claim for return of all the moveable and immoveable properties given to her before or at the time of marriage or thereafter, by her relatives or by her husband or by the relatives of her husband or friends. All this clearly shows that under Section 3 of the Act of 1986, the divorced woman is looked after well even after the dissolution of the marital tie. In so far as the financial aspect of the matter is concerned, it cannot be said that a woman is left without any consideration for her future well being because, as stated above, she is entitled to claim all the benefits which have been mentioned above.

( 35 ) THE only decision relied upon in this regard is in Ali v. Sufaira, (1988) 3 Crimes 147 wherein a learned single Judge of the Kerala High Court held that under Sec. 3 (1) (a) of the Act of 1986, a divorced Muslim woman is not only entitled to maintenance for the period of Iddat from her former husband but also to a reasonable and fair provision for her future. The purport of this decision seems to be that the liability of the former husband does not cease by paying maintenance for the period of Iddat only. He is liable to make a reasonable and fair provision for her future also. In other words, a distinction is sought to be drawn between what is a reasonable and fair provision and maintenance which is payable to the divorced woman. After discussing the various Ayats of the Holy Quran - 236, 237, 241 and 242, the learned Judge concluded that - "it is clear that the Muslim who believes in God must give a reasonable amount by way of gift or maintenance to the divorced lady. That gift or maintenance is not limited to the period of Iddat. It is for her future livelihood because God wishes to see all well. " in the final conclusion, the learned Judge held that under Section 3 (1) (a), a divorced Muslim woman is not only entitled to maintenance for the period of Iddat from her former husband but also to reasonable and fair provision for her future, and directed the Magistrate to pass orders giving effect to this intention of the Legislature. We have already discussed in our judgment that the concept of "reasonable and fair provision and maintenance" cannot be read as meaning two different things. The word "mata" used in Ayat 241 indicates that the words "fair and reasonable provision and maintenance" convey the same meaning. Even in Shah Bano case (AIR 1985 SC 945), it is recognised that the words "provision" and "maintenance" convey the same meaning and no distinction can be made between the two.

( 36 ) IN this connection it may be mentioned that one of the main criticisms against the decision in Shah Bano case (AIR 1985 SC 945) by the Supreme Court has been that the Supreme Court has assumed the role of an interpreter of Quran which is not permissible under the Mahomaden Law and therefore the verses of the Holy Texts cannot be a subject matter of interpretation by the Courts of law. As far back as in 1897, in Aga Mahomed Jaffer Bindaneem v. Koolsom Bee Bee, (1897) 24 Ind App 196 the Privy Council laid down the law on this aspect of the matter in the following words :"but it would be wrong for the Court on a point of this kind to attempt to put their own construction on the Koran in opposition to the express ruling of commentators of such great antiquity and high authority. "the same view was reaffirmed by the Privy Council in Baker Ali Khan v. Anjuman Ara Begum, (1903) 30 Ind App 94 wherein it was observed thus:"their Lordships think it would be extremely dangerous to accept as a general principle that new rules of law are to be introduced because they seem to lawyers of the present day to follow logically from ancient texts however authoritative, when the ancient doctors of the law have not themselves drawn those conclusions. "in K. Veerankutty v. P. Umma, AIR 1956 Mad 514 and Ibrahim Fathima v. Mohammed Saleem, AIR 1980 Mad 82 it has been recognised that the Court must administer the personal law for Muslims on the basis of the ancient textual authorities whose validity as of law can hardly be questioned.

( 37 ) DR. Tahir Mahmood in an article published in Islamic and Comparative Law Quarterly (Vol. 5 No. 1) March 1985, has commented upon Shah Bano case (AIR 1985 SC 945) in the following terms :"the Shah Bano judgment has caused great resentment in many circles of the Muslim community of India. Though we may not agree with the other opponents of the judgment on many points that they have raised, we do strongly feel that the assumption by the Supreme Court of the function to interpret the Holy Quran was absolutely uncalled for. "he further goes to observe that there was no need nor justification for the Supreme Court to assume the role of an interpreter of the Quran. The Quran, like the Holy Vedas and the Bible, is a revealed book. Would any modern court anywhere in the world attempt to interpret the Rigveda or the Old Testament?" asked Dr. Tahir Mahmood. Furthermore, he observed : "laws derived from the Quran in the distant past are found in the books of laws, and the court could definitely have interpreted those books. Re-interpreting the Quran itself straightway was, however, not a task that the Supreme Court of India or any of its Judges should have performed. " we are quoting the above opinion along with the various authorities referred to above only to indicate the inherent danger in attempting to direct interpretation of the holy verses of Quran. The interpretation which has been put to such verses of the Quran by the established authorities are to be taken as an authoritative pronouncement which cannot be deviated from.

( 38 ) THEREFORE, to hold that while maintenance may be payable for and during the period of Iddat, a fair and reasonable provision shall be made by her husband forecasting her future needs, would amount to negation of the very object for which Act of 1986 has been promulgated. It would give rise to a new concept of liability on the part of the husband which would be difficult to be translated in concrete terms as it would be almost impossible to visualize the future needs of a divorced Muslim woman which would be depending upon several factors like her remarriage, change in the circumstances or in the life style, etc. We have already discussed this concept earlier in our judgment and have categorically come to the conclusion that the provision or maintenance whatever it may be is liable to be paid only for the period of Iddat and within the period of Iddat only. In any case, the liability of the husband to provide a reasonable and fair provision and maintenance is limited for the period of Iddat only. Therefore, in regard to the second question as to whether the maintenance contemplated under Section 3 (1) (a) of the Act of 1986 is restricted only for the period of Iddat or a fair and reasonable provision has to be made for future also within the period of Iddat, we are of the opinion that the liability to pay reasonable and fair provision and maintenance on the part of the former husband is confined only for and during the period of Iddat. Even if it is taken for granted for a reasonable and fair provision is to be made separately from that of maintenance to be given to the wife, such reasonable and fair provision is confined only for the period of Iddat, as defined in Section 2 of the Act. We do not find ourselves in agreement with the decision of the Kerala High Court in Ali case (1988 (3) Crimes 147) supra, for the reasons which we have already explained above.

( 39 ) REGARDING the third question, how far Sections 125 to 128 of the Code can be held to be applicable after coming into force of the Act of 1986, we hold that under Section 7 of the Act of 1986, it is specifically stated 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 the Act shall be disposed of by the Magistrate in accordance with the provisions of the Act of 1986, having due regard to Section 5 of the Act and the rules framed thereunder with regard to the option to be exercised by the parties. Any order of maintenance which is sought to be enforced under Section 128 of the Code imposing a liability on the husband which is not warranted by the provisions of the Act of 1986, cannot be executed against the husband. This is based on the principle that when a Muslim husband is not liable to make any provision or pay maintenance after the period of Iddat, then there is no question of any order being enforced against such a husband under Section 128 of the Code after passing of the Act of 1986. A similar view by a learned single Judge in the petition 849/87 dated 28-11-1987.

( 40 ) IN the light of the foregoing discussion, in answer to the first question, we are of the opinion that the divorced woman cannot claim maintenance under Section 125 of the Code after passing of the Act of 1986.

( 41 ) IN regard to second question, we hold that the fair and reasonable provision and maintenance contemplated under Section 3 (1) (a) payable by the husband is restricted only for the period of Iddat and the liability of the husband to provide any provision or maintenance after the period of Iddat does not arise.

( 42 ) IN regard to third question, we hold that Sections 125 to 128 of the Code are not applicable after coming into force of the Act, of 1986, save insofar as the parties exercise their option under Section 5 of the Act, to be governed by the provisions of Sections 125 to 128 of the Code.

( 43 ) THE questions under reference are answered accordingly.

( 44 ) RAMANUJULU NAIDU, J. (Majority view):- I am entirely in agreement with the conclusions reached by my learned brother Sardar Ali Khan, J. and the reasoning adopted by him. BHASKAR RAO, J. (Minority view) :-

( 45 ) I have had the benefit of going through the judgment of my learned brother, Sardar Ali Khan, J. , as agreed to by Justice Ramanujulu Naidu. With great respect to my learned brothers, I should express my inability that I am not able to toe myself in line with the view expressed by them on the question, " (2) Whether the maintenance contemplated under Section 3 (1) (a) of the Act 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?" i may make it clear that though I held a contra view in Crl. Revision Case No. 577/87 D/-31-3-1989 (reported in 1989 (2) Andh LT 275) : (1989 Cri LJ 2285) that the maintenance contemplated by Section 3 (1) (a) of the Muslim Women's (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'the Act') is not confined to the Iddat period only, I am now convinced on further enlightenment that the Legislature intended payment of maintenance only for the Iddat period and not beyond that. However, on the latter limb of the question, whether a fair and reasonable provision has to be made for future also within the period of Iddat, I am clearly of the opinion that the answer should be in the positive and positive only.

( 46 ) ON the other two questions, namely, 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 and 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, I have absolutely no divergence of opinion with my learned brothers. I, with great respect, agree with my learned brothers that a divorced muslim woman cannot claim maintenance under Sec. 125 Cr. P. C. after passing of the Act and that Sections 125 to 128 Cr. P. C. , are not applicable after coming into force of the Act save insofar as the parties opt for their applicability under Sec. 5 of the Act.

( 47 ) IT is the decision of the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 that gave rise to the present legislation of enacting the Muslim Women's (Protection of Rights on Divorce) Act, 1986. The Supreme Court 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 of Criminal Procedure, 1973. The Court, therefore, held that it would be incorrect and unjust to extend the above principle of Muslim law to cases in which the divorced wife is unable to maintain herself. Accordingly, the Court concluded 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 Sec. 125 Cr. P. C.

( 48 ) THE statement of objects and reasons in bringing out the Act reads :"2. This (Supreme Court's) decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests. "the main object of the legislation, thus, is to protect the rights of the Muslim women on divorce. Title of the enactment also refers to the Protection of Rights on Divorce'. Insofar as husband's obligation to pay maintenance is concerned, the Muslim law as also the decision of the Supreme Court confines it to the period of iddat only. The only right, apart from the one under Muslim Law to which a divorced Muslim woman is entitled to, as was held by the Supreme Court in the above Shah Bano's case, is to have a recourse to Sec. 125 of the Code of Criminal Procedure for maintenance even after expiration of the period of iddat if the woman is not able to maintain herself. In so far as payment of maintenance during the iddat period is concerned, the personal law stood settled and there was absolutely no controversy on the issue. The right to maintenance held to be available even after the expiration of the period of iddat under Sec. 125 Cr. P. C. , is only if the woman is unable to maintain herself, and this right is crystallised after the pronouncement by the Supreme Court. No doubt, as stated in the statement of objects and reasons, this decision vesting the right to maintenance under Sec. 125 Cr. P. C. , gave rise to some controversy. This controversial state of affairs did not relate to the liability of the husband to pay maintenance for the iddat period and therefore the corresponding right of the muslim woman did not call for any protection since it was never under erosion. What was sought to be controverted or eroded by means of some furore was with reference to the newly accrued right on its crystallisation that the muslim woman, if unable to maintain herself, is entitled to have recourse to Sec. 125 Cr. P. C. , even after the iddat period. This much of crystallisation, though not exactly in the same form and under the same provision, but in substance something over and above the liability to pay maintenance during the iddat period, was under the need and warrant of protection which the legislation intended to do by embedding in Section 3 (1) (a) of the Act the liability of the husband to make a reasonable and fair provision, apart from maintenance.

( 49 ) BEFORE analysing the term 'a reasonable and fair provision' occurring in Sec. 3 (1) (a) of the Act, it is very much necessary to extract Sec. 3 to the extent relevant. It reads :"mehr 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;. . . . . "now, the question is as regards the meaning of "a reasonable and fair provision and maintenance to be made and paid. . . . " as it occurs in the above section. The contention on one hand is that 'provision and maintenance' have to be read together in a compendious form. This submission is sought to be fortified by referring to Quranic verse 241 wherein the word 'mata' occurs, the meaning of which is "maintenance (should be provided)". Since 'mata' as interpreted by the Supreme Court takes-in both 'maintenance and provision', the Legislature it is submitted to avoid any confusion couched the language in S. 3 (1) (a) by clubbing the words 'provision' and 'maintenance' together without meaning them to be distinct and separate items. The argument, ex facie, sounds too far fetched and is incapable of being reconciled with (i) the preamble of the Act, (ii) the following Section 4 of the Act wherein the term used is only 'reasonable and fair maintenance' (the word 'provision' is omitted) and (iii) Section 5 of the Act which provides an option to the parties for being governed by Sections 125 to 128 of the Code of Criminal Procedure.

( 50 ) IT is basically the intention of the legislature that provides the lever for purposes of interpretation of any statute. No doubt, there are several sources to find out the intention. They can as well broadly be divided into (i) external aids and (ii) internal aids. External aids consist of statement of objects and reasons, earlier reports of commissions, if appointed, reports of Parliamentary Committees, etc. A reference is already made to the statement of objects and reasons. The internal aids have got to be gathered from the preamble of the statute and on an harmonious construction of different provisions in the statute. The preamble of the Act reads: "an Act 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. " thus, this is an Act intended to protect the rights of the Muslim women on their divorce. Question of protecting a right arises only on its recent acquisition and that too when it is under a threat of erosion. Insofar as the question of payment of maintenance for the Iddat period is concerned, there was never any dispute as regards it, that was not a recent acquisition nor it was under a threat of erosion at any time earlier to the making of the present legislation. The furore among the Muslim community, in other words the controversy, was with regard to the liability of the husband to pay maintenance beyond the iddat period under Sec. 125 Cr. P. C. , if she is unable to maintain herself. This was the newly crystallised right as per the Supreme Court's pronouncement and in regard to which there was much controversy. Thus, this newly crystalised right was the subject matter of controversy and resultantly under a threat of erosion, and accordingly needed or warranted protection, may be in the same form or in a balancing different form. The option, however, as regards the form is left out to the parties themselves by Section 5 of the Act. In this background of protection, the resultant provisions are Section 3 (1) (a) and section 5 of the Act, the former casting a liability on the husband to make a reasonable and fair provision apart from the payment of maintenance within the Iddat period and the latter leaving the option to the parties to be governed by Sections 125 to 128 of the Code of Criminal Procedure. If it is simply a question of payment of maintenance for the iddat period that the truly intended by Sec. 3 (1) (a) and nothing more, neither the Legislature would have wasted its breath by incorporating the liability of making a provision reasonable and fair, apart from paying maintenance in Section 3 (1) (a), nor would it have allowed Section 5 to remain otiose on the statute since no Muslim former husband with minimum commonsense would opt for governance by the provisions of Secs. 125 to 128 of the Code of Criminal Procedure in the absence of any corresponding or balancing liability cast on him by one or other provision in the statute. It is equally important to note that Section 4 of the Act which reads :"section 4. Order for payment of maintenance: (1) 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 reasonable and fair maintenance to her as may be determined. . . . . . (2) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate. . . . the Magistrate may, by order direct the State Wakf Board. . . . functioning in the area in which the woman resides to pay such maintenance as determined by him under sub-section (1 ). . . . . . . "significantly omits the word 'provision' from the term "a reasonable and fair provision and maintenance". The liability under Sec. 4 either of the relatives or of the Wakf Board is just to pay reasonable and fair maintenance. Section 4 does not contemplate making of fair and reasonable provision in contra-distinction from Sec. 3. Therefore, the argument that provision and maintenance mean one and the same and they should be read in a compendious form is not worthy of appreciation. These two or (are) distinct and different items as submitted by the learned Advocate General. Further the reasonable and fair provision contemplated by this section to be made within the iddat period is for a period much beyond the iddat whereas the maintenance to be paid within the iddat period is for the iddat only.

( 51 ) I am not able to concede to the argument that the liability of the husband, even if making of provision is different and distinct from paying of maintenance, is confined to the period of iddat only and that in no case either of the two could run beyond the iddat period. The words in Sec. 3 (1) (a) "within the Iddat period" lay stress on the urgency in making or paying and they cannot be read as confining the liability to the limited period of iddat, save insofar as maintenance is concerned since the Muslim Law is settled on that aspect. Interpreting the distinct liability of making a reasonable and fair provision as having been confined to the period of Iddat would not only render the very Section 5 on the statute otiose but also defeats the specific purpose of casting that liability on the former husband by Sec. 3 (1) (a) in contra-distinction from Sec. 4 whereunder the liability of either the relatives or the Wakf Board is only to pay maintenance and there is absolutely no liability to make any provision under Sec. 4 of the Act. Incidentally, no doubt, there advanced a submission whether it would be possible to make or fix-up such a provision apart from paying maintenance within the iddat period so as to cover-up the necessities of life of the divorcee for the entire period of her remaining life or until she gets remarried. No doubt, there does appear to be some inconvenience but the question is whether such an inconvenience is a dominant factor to render a contra interpretation, which otherwise is a total absurdity. Means of remedy would surely follow the event. For an apprehended event, being not able to presently comprehend a means of remedy, is it proper to relieve of a benefit available otherwise to the divorcee under a statute, that too a beneficial legislation. The Supreme Court in Mysore State E. Board v. Bangalore W. C. and S, Mills, AIR 1963 SC 1128 clearly laid down that inconvenience is not a decisive factor in interpreting a statute.

( 52 ) IT is also crucial to notice that the Legislature cannot be said to be not apprehensive of this inconvenient situation not only in arriving at but also in making a reasonable and fair provision. Having been apprehensive only, it introduced Sec. 5 in the statute to enable the parties to choose governance by sections 125 to 128 of the Code of Criminal Procedure.

( 53 ) HE learned Advocate General brought to our notice a decision of the Kerala High Court in Ali v. Sufaira (1988) 3 Crimes 147. The question raised before the Kerala High Court is exactly the same as discussed herein. After a threadbare discussion of several points involved the Kerala High Court held that under Sec. 3 (1) (a) of the Act a divorced woman is not only entitled to maintenance for the iddat period from her former husband but also to a reasonable and fair provision for her future. I am in absolute agreement with the reasoning given therein and the conclusions arrived at. As a matter of fact, the said decision cover substantially and fully the issue under discussion in my judgment.

( 54 ) BEFORE parting with this, it is equally important to notice the meaning of the words 'provision' and 'maintenance'. According to Webster's Third New International Dictionary, the word 'provision' means : "a gift by will or deed to one as heir who would not be heir otherwise. " our Supreme Court had also the occasion in Metal Box Company v. The Workmen, AIR 1969 SC 612 to interpret the word 'provision'. It is stated (Para 15) : "an amount set aside out of profits and other surpluses, not designed to meet a liability, contingency, commitment or diminution in value of assets to exist at the date of the balance sheet is reserve but an amount set aside out of profits and other surpluses to provide for any known liability to which the amount cannot be determined with substantial accuracy is a provision. " the word 'provision', thus, means an amount set apart to meet a known liability, the amount of which cannot be decided with accuracy. The known liability under Sec. 3 (1) (a) of a husband is to provide for the future of the divorced muslim woman. The amount is not capable being decided with substantial accuracy. This provision, thus, is surely different and distinct from maintenance due to the muslim divorced woman for the iddat period.

( 55 ) THE word 'maintenance' as per Webster's Third New International Dictionary means : "the act of providing means of support for someone; means of sustenance; designed or adequate to maintain a living body in a stable condition without providing reserves for growth, functional change, or healing effect. "

( 56 ) AS seen the meaning of the words 'provision' and 'maintenance' is distinct and different from one another and therefore the contention that they both mean one and the same is not tenable.

( 57 ) QUESTIONS do arise as to the period to which and the amount for which the husband is liable to make a provision. Insofar as the period is concerned surely it is much more beyond the iddat period and for the future of the divorced wife. As to the amount or extent of making the provision, the factors are almost similar as those that govern the fixation of maintenance. The state of condition as to the health or education of the divorced wife is a dominant factor in arriving at the extent or amount of the provision as also the period for which it is to be assessed. For instance, the divorced wife may be a student of medicine, engineering, etc; or she may be an in-patient or suffering from some chronic disease at the crucial time. These are simply different examples. In such and similar cases it would be doing harm to the beneficial legislation if the provision is confined to the iddat period on the ground that maintenance has got to be so. The amount or extent to which and the period for which the husband is liable to make a provision depends on the facts and circumstances of each case and there cannot be a general or common ruling on these aspects. Accordingly I am of the firm view that the maintenance contemplated by Sec. 3 (1) (a) of the Act is limited to the Iddat period while the fair and reasonable provision to be made in terms of the same section runs for the future much beyond the iddat period. As mentioned in the opening paragraph, except to this extent as regards the effect and import of the term 'reasonable and fair provision' in Sec. 3 (1) (a) of the Act, I express my absolute concurrence with regard to the rest of the conclusions and the reasoning issued therefor in the judgment of my learned brother, Sardar Ali Khan, J. Final Order Dt. 19-3-1990 by N. D. Patnaik, J. :- "following the decision of the Full Bench the petition is allowed and the order in M. C. No. 13/88 on the file of the Munsif Magistrate. Nellore is quashed. " order accordingly.