Kerala High Court
Sivasankaran vs State Of Kerala on 16 February, 2022
Author: Sathish Ninan
Bench: Sathish Ninan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 16TH DAY OF FEBRUARY 2022 / 27TH MAGHA,
1943
WP(C) NO. 25160 OF 2021
PETITIONERS:
1 SIVASANKARAN,AGED 56 YEARS,S/O. EBHICHUTTY,
KARIPURATHU HOUSE, PUTHUKKOD. P.O., KONDOTTY,
MALAPPURAM 673 633, PRESIDENT, PERINGAVU
KHEROLPADHAKA CO OPERATIVE SOCIETY LTD NO. 198
D. MALAPURAM 673 633.
2 MUHAMMED SHERIFF,AGED 49 YEARS,S/O. AALIKUTTY,
MUNDAKKAL HOUSE, VAZHOOR, PERINGAVU, PUTHUKKOD
P.O. KONDOTTY, MALAPURAM 673 633.
3 ASHOKAN, AGED 54 YEARS,S/O. CHULANKUTTY,
KUZHIKOTTIL HOUSE, VAZHOOR, PERINGAVU,
PUTHUKKOD P.O., KONDOTTY, MALAPPURAM 673 633.
4 RAMAN, AGED 84 YEARS,S/O. SHANKARAN @
SHANKARANKUTTY, REDSTAND MANDIR, CHERUKAVU,
PUTHUKKOD, P.O. KONDOTTY, MALAPURAM 673 633.
5 SATHYABHAMA, AGED 60 YEARS,W/O. KARUPPUTTY,
KARUPATHU HOUSE, VAZHOOR, PERINGAVU, PUTHUKKOD
P.O. KONDOTTY, MALAPURAM 673 633.
6 NAFISA, AGED 50 YEARS,W/O. ABDUL AZIZ,
PARAKATTIL HOUSE,VAZHOOR, PERINGAVU, PUTHUKKOD
P.O. KONDOTTY, MALAPURAM 673 633.
7 SUBAIDHA, AGED 50 YEARS,W/O. SAIDALAVI,
CHELATTUPURAKKAL HOUSE, KANNAMVETTIKAVU,
CHERUKAVU . KONDOTTY, MALAPURAM 673 633.
BY ADV G.SREEKUMAR (CHELUR)
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY SECRETARY,
DEPARTMENT OF DAIRY DEVELOPMENT,
THIRUVANANTHAPURAM 695 001.
2 DEPUTY DIRECTOR,DEPARTMENT OF DAIRY
WP(C) NO.25160 of 2021
2
DEVELOPMENT, CIVIL STATION, MALAPPURAM 676 505.
3 DAIRY DEVELOPMENT OFFICER, DAIRY EXTENSION
SERVICE UNIT, MUNDAPALAM, KONDOTTY 673 638.
4 UNNIKRISHNAN M.,S/O. MAMUTTY, VELUTHEDATHUPURAY
HOUSE, VAZHOOR, PERINGAVU, PUTHUKKOD P.O.,
KONDOTTY, MALAPPURAM 673 633.
5 SUDHEER KUMAR, S/O. KARUPATHU VEERABHADRAN,
SUDHEER VIHAR, PERINGAVU, PUTHUKKOD, P.O.
KONDOTTY, MALAPURAM 673 633.
ADDL.R6 PERINGAVU KSHEROLPADHAKA CO-OPERATIVE SOCIETY
LTD. 198 D, PERINGAVU, PUTHUKKOD, KONDOTTY P.O,
MALAPURAM 673 633 REPRESENTED BY ITS
ADMINISTRATOR.
ADDL.R7 DAIRY DEVELOPMENT OFFICER, DAIRY EXTENSION
SERVICE UNIT, KONDOTTY P.O, MALAPURAM DISTRICT
PIN 673 633 SERVING AS PART TIME ADMINISTRATOR,
PERINGAVU KSHEROLPADHAKA CO-OPERATIVE SOCIETY
LTD.198 D, KONDOTTY P.O, MALAPURAM 673 633.
(ADDLR6 AND R7 ARE IMPLEADED AS PER ORDER DATED
23.03.2022 IN I.A No.1/2022 IN W.P(C)
25160/2021)
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
DEVAPRASANTH.P.J.
ARJUN RAGHAVAN
SMT.RESMI.K.M, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.02.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO.25160 of 2021
3
JUDGMENT
Ext P1 order of the 2nd respondent-Deputy Director, appointing an administrator for the Peringavu Ksherolpadhaka Co-operative Society Ltd No.198 D (hereinafter referred to as the 'Society') Malappuram, under Section 33 of the Co-operative Societies Act(hereinafter referred to as the 'Áct') for lack of quorum of the committee, is under challenge in this Writ Petition.
2. The managing committee of the Society consists of nine members. The petitioners 7 in number and respondents 4 and 5 constituted the committee. The committee assumed office on 07.03.2019. The petitioners allege that respondents 4 and 5 obtained blank signed papers of petitioners 5 to 7, fabricated it as their resignation letters, and submitted it before the 3 rd respondent - Dairy Development Officer on 08.10.2021. On knowing about the fraud played on them, petitioners 5 to 7 WP(C) NO.25160 of 2021 4 intimated the same to the President, who is the 1 st petitioner in the Writ Petition.
3. On 12.10.2021, the 2nd respondent acting on the report of the 3rd respondent regarding lack of quorum for the committee consequent on resignation of petitioners 5 to 7, and respondents 4 and 5, issued Ext P1 order appointing an administrator. It is challenging the said order that the Writ Petition has been filed.
4. Heard the learned counsel for the parties.
5. As noticed, the averments in the Writ Petition regarding the resignation letters of petitioners 5 to 7 is that, signed blank papers were obtained by respondents 4 and 5 by misleading them. According to the petitioners, on coming to know about the fraud perpetrated at the instance of respondents 4 and 5, a letter was sent informing the 1st petitioner - President regarding the same. How and when petitioners 5 to 7 realised the alleging folly remains unexplained. That apart, Ext P3 is the letter sent by the 5th petitioner to the 1st WP(C) NO.25160 of 2021 5 petitioner - President raising the allegation. Therein it is stated that she was threatened and was coerced to sign the resignation letter. Ext P3 does not reflect a case of having obtained signed blank paper and fabrication. Ext P6 is the police complaint filed by the 5th petitioner herself with regard to the incident. Therein it is said that a blank signed paper was obtained from her making her believe that it was to file a complaint against the mal-administration of the Society. Evidently, the stand adopted by the 5 th petitioner in Exts P3 and P6 does not go together. Here it is pertinent to refer to the statement filed by the 2 nd respondent before this Court. In paragraph 3 of the statement it is stated that the Board members had submitted their resignation letters before the 3 rd respondent. It is stated that the Board members were accompanied by Sri.Amardas.A, the Ward member. It is also stated that the 3rd respondent verified the signatures in the resignation letters with their identity certificates. It is further stated that the contents WP(C) NO.25160 of 2021 6 of the resignation letters were read over to them and it was ensured that the letters are voluntarily signed by them.
6. In the light of the above, the contention of the petitioners that they were defrauded by respondents 4 and 5 by having obtained signed blank papers and then fabricated it as resignation letters of petitioners 5 to 7, cannot be accepted.
7. The petitioners raised a contention that, Rule 38(3) of the Rules requires the resignation of a member to be submitted to the President and that, admittedly it has not been complied with in the instant case; therefore there has been no valid resignation. Deputy Registrar of Co-operative Society and another v. P.K.George (1974 KLT 189) was a case where two nominated members of the committee failed to tender the resignation to the President as required under Rule 38(3) of the Act. It was held that Rule 38(3) is only a procedural provision which is not mandatory to render the resignation invalid. In Varma v. Joint Registrar (1987(2) KLT 420) the WP(C) NO.25160 of 2021 7 tendering of resignation letter to the Joint Registrar of Co-operative Societies, who had supervisory jurisdiction of the affairs of the Committee, in the absence of a President in office, was held to be valid. Contention of respondents 4 and 5 is that, the allegations regarding the mismanagement/maladministration of the Society was pointed against the President, and under such circumstances it was not practicable/conducive to have the resignation submitted to him. It was under
such circumstance, the resignation was tendered to the authority having supervisory jurisdiction, is the contention. On the facts at hand and in the light of the view taken by this Court, as noted above, it cannot be held that there has not been a valid resignation.
8. The next contention urged by the petitioners is regarding non-compliance with the first proviso to Section 33(1). The proviso requires the Registrar to publish a notice on the notice board in the head office of the Society, inviting objections to the WP(C) NO.25160 of 2021 8 making of the order appointing administrator. In terms of the second proviso to Section 33(1), such publication can be dispensed with only if the Registrar is satisfied that it is not practically possible to do so. As held by this Court in Thomas v. Jaihind Powerloom Industrial Co-operative Society Ltd. (ILR 2001(1) Kerala 62) in the light of the explanation to Section 33(1), the tendering of a resignation results in termination of the membership. There is no provision for withdrawal of such resignation. In Baby Chemparathy v. Joint Registrar of Co-operative Societies (2002(2) KLT
730), it was held that though the effect of an action under Section 32 and Section 33 of the Act is the replacement of the elected committee by an administrator or an administrative committee, the procedure and consequences are different. The Sections operating different situations. It was explained therein that, where as Section 32 operates on the subjective satisfaction of the Registrar, Section 33 calls for only an objective satisfaction WP(C) NO.25160 of 2021 9 except in two situations. This Court observed thus:
"13. The Registrar being a statutory authority, it is imperative on him to act under S.33 in the following situations:
(1) Even after the expiry of the term a new committee is not constituted.
(2) Where a no confidence motion is passed by the General Body of the Committee.
(3) Where the existing committee resigns enbloc. (4) Where vacancies occur in the Committee and the number of the remaining members cannot constitute the quorum for a meeting of the Committee.
(5) The Committee fails to hold regular meeting consecutively for six months.
(6) Where the Registrar is satisfied that the new Committee cannot be constituted before the expiry of the term of the existing committee or where the Registrar is satisfied that the new Committee is prevented from entering the office or fails to enter office.
It is pertinent to note that, an element of subjective satisfaction is contemplated under S.33 only in the last two situations, and in all the former situations there is only the subjective(sic objective) satisfaction. In those situations of objective satisfaction there is hardly any scope for softening the heart of the administrative authority by considering the objections."
9. Effecting of publication of the proposed action on the notice board of the head office of the Society could not have made any practical difference in the situation obtaining in this case. This is so in the light of the statement placed on record by WP(C) NO.25160 of 2021 10 the 2nd respondent(referred to supra) to the effect that petitioners 5 to 7 had tendered their resignation in person in the presence of their Ward member and that the identity signatures and consent of petitioners 5 to 7 were ascertained by the 3 rd respondent while accepting their resignation. Even if the publication prescribed under the proviso was made and thereupon the factum of submission of resignation letter was disputed by the petitioners as above, it could not hold good for the reasons stated supra. The Registrar could not have arrived at a different conclusion. In the light thereof, in the case at hand, the absence of publication could not have any consequence. In the circumstances, there is no reason to interfere with Ext P1 order in exercise of the jurisdiction under Article 226 of the Constitution of India.
10. As provided under Section 33(3), it is the duty of the administrator to arrange for the constitution of new elected committee. No doubt, under Ext P1 the administrator has been required to WP(C) NO.25160 of 2021 11 take steps for conduct of election to the managing committee. Let steps be taken in the said regard without any delay and election be conducted within a period of three months from today. Till the elected committee assumes office, no policy decisions shall be taken by the administrator.
Writ Petition is disposed of as above.
Sd/-
Sathish Ninan, Judge vdv WP(C) NO.25160 of 2021 12 APPENDIX OF WP(C) 25160/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF ORDER OF THE 2ND RESPONDENT UNDER SECTION 33 OF THE KERALA CO OPERATIVE SOCIETIES ACT DATED 12/10/2021.
Exhibit P2 TRUE COPY OF SCREEN SHOT OF THE WHATSAP SENT TO THE IST PETITIONER BY THE PETITIONER 5 TO 7 DATED 08/10/2021.
Exhibit P3 TRUE COPY OF LETTER DATED 08/10/2021 SENT TO THE IST PETITIONER BY THE 5TH PETITIONER. Exhibit P4 TRUE COPY OF LETTER DATED 08/10/2021 SENT TO THE IST PETITIONER BY THE 6TH PETITIONER. Exhibit P5 TRUE COPY OF THE LETTER DATED 08/10/2021 SENT TO THE IST PETITIONER BY THE 7TH PETITIONER. Exhibit P6 TRUE COPY OF COMPLAINT FILED BY THE 5TH PETITIONER AND RECEIPT ISSUED BY THE SHO KONDOTTY.
Exhibit P7 TRUE COPY OF COMPLAINT FILED BY THE 6TH PETITIONER AND RECEIPT ISSUED BY THE SHO KONDOTTY.
Exhibit P8 TRUE COPY OF COMPLAINT FILED BY THE 7TH PETITIONER AND RECEIPT ISSUED BY THE SHO KONDOTTY.
Exhibit P9 TRUE COPY OF REPRESENTATION DATED 19/10/2021 SUBMITTABLE BY THE PETITIONER BEFORE THE MINISTER OF DAIRY DEVELOPMENT.
Exhibit TRUE COPY OF REPRESENTATION SUBMITTED BY THE P10 PETITIONERS TO THE 2ND RESPONDENTS DATED 30/10/2021.
RESPONDENT EXHIBITS Exhibit A TRUE COPY OF THE LICENSE DATED 29.10.2021 R5(a) ISSUED TO THE 1ST PETITIONER BY THE CONCERNED WP(C) NO.25160 of 2021 13 LOCAL BODY FOR THE PERIOD 29.10.2021 TO 31.03.2022.
Exhibit A TRUE COPY OF THE COMPLAINT DATED 21.10.2021 R5(b) ALONG WITH DOCUMENTS SUBMITTED BY A MEMBER OF THE SOCIETY BEFORE SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU. Exhibit A TRUE COPY OF THE RECEIPT DATED 22.10.2021 R5(c) ISSUED FROM THE VACB MALAPPURAM UNIT. Exhibit A TRUE COPY OF FIR NO.860 OF 2021 DATRED R5(d) 06.12.2021 REGISTERED AT THE KONDOTTY POLICE STATION.
Exhibit A TRUE COPY OF THE APPLICATION DATED R5(e) 10.01.2022 FILED BEFORE THE DAIRY EXTENSION OFFICER, KONDOTTY, UNDER THE RIGHT TO INFORMATION ACT.
Exhibit A TRUE COPY OF THE REPLY DATED 22.01.2022 R5(f) ISSUED UNDER THE RIGHT TO INFORMATION ACT BY THE PUBLIC INFORMATION OFFICER, DAIRY EXTENSION OFFICER, KONDOTTY ALONG WITH RELEVANT DOCUMENTS.