Can writs be issued to quash fundamental right?

The constitutional writ jurisdiction vested in High Courts under Article 226 is designed to uphold the rule of law and protect legal and fundamental rights. However, its misuse—particularly in matters involving cooperative societies and apartment ownership frameworks—can lead to serious violations of constitutional guarantees. This article critically examines the legal provisions for issuing writs of Prohibition and Mandamus to:

1. Quash the fundamental right of registration of a legally constituted Apartment Cooperative Society under the Karnataka Cooperative Societies Act, 1959, and
2. Compel the formation of an unregistered, non-voluntary association under the Karnataka Apartment Ownership Act, 1972 (KAOA),

while also directing citizens to associate with such bodies.

Constitutional and Statutory Framework-Cooperative Societies as Constitutional Entities

The 97th Constitutional Amendment Act, 2011 elevated cooperative societies to constitutional status by introducing:

• Article 19(1)(c) – guaranteeing the right to form associations including cooperative societies, (Here the association means voluntary associations)
• Article 43B – a Directive Principle promoting voluntary formation, autonomous functioning, and democratic control of cooperatives.

Thus, cooperative societies are not merely statutory creations but constitutionally protected institutions. The Karnataka Cooperative Societies Act, 1959 provides provides:

• A complete legal framework for registration, governance, and regulation of cooperative societies,
• Statutory recognition and legal personality,
• Democratic functioning through elected management.

A society registered under this Act enjoys legal sanctity, and its registration cannot be lightly interfered with except through procedures prescribed under the Act itself.

But the Karnataka Apartment Ownership Act, 1972 (KAOA) is a statute with its contradictions and confusion Created by wrong submissions :

• Enables apartment owners to submit property to a “declaration”,
• No provision to form an Association of Apartment Owners or to register it. But a Bye law is attached with the Deed of Declaration. Making all the Signatories to be compulsory members of the association making it non-voluntary association.
• But erroneous submission in the court stating that KAOA association is registered has changed the whole scenario in implementation.

However:

• Such associations are typically not independent legal personality unless separately registered,
• Formation is non-voluntary, compulsory,
• It does not override the right to form a cooperative society.

Nature and Scope of Writs- Writ of Prohibition is issued to prevent a lower authority from acting without or in excess of jurisdiction. Writ of Mandamus is issued to compel performance of a statutory duty, not to:

• Create new obligations,
• Override statutory schemes,
• Compel citizens into involuntary associations.

Critical Legal Issues- Can a Writ Quash a Validly Registered Cooperative Society?

Judicial precedent consistently holds that:

• Registration under a statute like the Karnataka Cooperative Societies Act, 1959 is an administrative/statutory act,
• It can only be challenged on limited grounds such as fraud, illegality, or lack of jurisdiction.

In Thalappalam Service Cooperative Bank Ltd. v. State of Kerala, the Supreme Court emphasized the autonomy and independent character of cooperative societies. Similarly, in Zoroastrian Cooperative Housing Society Ltd. v. District Registrar, the Court upheld the autonomy of cooperative societies and their internal governance. Therefore, a blanket writ quashing a legally registered society—without statutory violation, would be ultra vires.

And Compelling Formation of an Association under KAOA by giving direction to form an association under the Karnataka Apartment Ownership Act, 1972 raises serious concerns:

• The Act does not mandate formation of an association,
• It cannot override the constitutional right under Article 19(1)(c),
• Forcing citizens into a specific form of association violates freedom of choice.

In Damyanti Naranga v. Union of India, the Supreme Court held:

The right to form an association includes the right to continue it with its chosen composition.

Thus, forcing a different structure is unconstitutional.

Mandamus to Builder to Form Unregistered Body where the writ of mandamus :

• Can only enforce a statutory duty,
• Cannot compel a private party (builder) to create an unregistered, legally ambiguous body.

Such a direction:

• Has no statutory backing,
• Undermines both cooperative law and property law frameworks,
• Creates governance vacuum and legal uncertainty.

Forcing Citizens to “Cooperate” with Builder is perhaps the most problematic aspect:

• Compelling association violates fundamental right under Article 19(1)(c),
• It contradicts voluntary membership, a core cooperative principle under the 97th Constitutional Amendment Act, 2011,
• It effectively substitutes judicial authority for legislative policy.

In BCCI v. Cricket Association of Bihar, the Court cautioned against judicial overreach into governance structures without statutory basis.

Under the principles of Doctrinal Violations-Separation of Powers, the judiciary cannot:

• Rewrite statutory frameworks,
• Replace one legally recognized structure with another.

It becomes Ultra Vires Exercise of Writ Jurisdiction

Writs must:

• Enforce law, not create it,
• Operate within statutory boundaries.

Violation of Fundamental Rights

• Quashing of Funamental Right — Violation of 97^th Amendment
• Forced association → violation of Article 19(1)(c),
• Arbitrary quashing → violation of Article 14.

Conclusion

The issuance of writs of Prohibition and Mandamus to:

• Quash a duly registered cooperative society,
• Compel formation of a non-statutory association under KAOA,
• Force citizens to associate with a builder-driven structure,

represents a serious distortion of constitutional and statutory principles.

Such orders:

• Undermine the constitutional status of cooperative societies,
• Violate the fundamental Rights
• Violate the doctrine of voluntary association,
• Exceed the permissible limits of judicial review.

The constitutional vision—reinforced by the 97th Constitutional Amendment Act, 2011—clearly favors democratic, voluntary, and autonomous cooperative institutions, not coercive or judicially imposed alternatives.

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