Kerala High Court
K.Sivadasan Nair vs State Of Kerala on 10 June, 2022
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 10TH DAY OF JUNE 2022 / 20TH JYAISHTA, 1944
RP NO. 330 OF 2022
AGAINST THE JUDGMENT DATED 14.03.2022 IN WA 159/2022 OF
HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANTS:
1 K.SIVADASAN NAIR,
EX-MLA MEMBER, BOARD OF DIRECTORS, KERALA STATE
CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT
BANK LTD. NO. T-4017, AGRICULTURAL DEVELOPMENT
BANK BUILDING, STATUE JUNCTION,
THIRUVANANTHAPURAM-695 001
2 ADV. C.K. SHAJI MOHAN,
MEMBER, BOARD OF DIRECTORS, KERALA STATE CO-
OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT
BANK LTD. NO. T-4017, AGRICULTURAL DEVELOPMENT
BANK BUILDING, STATUE JUNCTION,
THIRUVANANTHAPURAM-695 001
BY ADVS.
GEORGE POONTHOTTAM (SR.)
ARUN CHANDRAN
NISHA GEORGE
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
OFFICE OF THE REGISTRAR OF CO-OPERATIVE
SOCIETIES, DPI JUNCTION,
THIRUVANANTHAPURAM-695 014.
R.P.No.330 of 2022 in
Writ Appeal No.159 of 2022 -: 2 :-
3 KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LTD. NO. T 4017,
AGRICULTURAL DEVELOPMENT BANK BUILDING, STATUE
JUNCTION, THIRUVANNATHAPURAM-695 001,
REPRESENTED BY THE MANAGING DIRECTOR.
4 S.SANJAYKUMAR,
DELEGATE, KERALA STATE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD. NO. T 4017,
REPRESENTING PALODE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD., NO. T 862,
PALODE, KARUMANCODE P.O, PACHA,
THIRUVANANTHAPURAM-695 562.
5 R. THILAKAN,
DELEGATE, KERALA STATE CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD. NO. T 4017,
REPRESENTING PEERUMEDU CO-OPERATIVE AGRICULTURAL
AND RURAL DEVELOPMENT BANK LTD., PEERUMEDU,
IDUKKI DISTRICT-685 501
SRI.S.N.RAGHURAJ SC
SRI.M.SASINDRAN
SRI.M.A.ASIF
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
10.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.P.No.330 of 2022 in
Writ Appeal No.159 of 2022 -: 3 :-
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
-----------------------------------------------
Review Petition No.330 of 2022
in
Writ Appeal No.159 of 2022
-----------------------------------------------
Dated this the 10th day of June, 2022.
ORDER
P.B.Suresh Kumar, J.
The appellants seek in this petition, review of the judgment in the writ appeal.
2. The writ appeal was one preferred against the judgment in W.P.(C) No.5 of 2022. As per the judgment sought to be reviewed, this Court affirmed the decision of the learned Single Judge in dismissing the writ petition. Parties are referred to in this order for convenience, as they appear in the writ appeal.
3. The third respondent is an apex society R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 4 :- registered and functioning under the Kerala Co-operative Societies Act, 1969 (the Act). Its general body consists of 76 primary societies. The appellants represent two among the members of the third respondent in its general body and have been elected in that capacity to the Managing Committee of the third respondent. On 30.10.2021, a no-confidence motion was moved by two other members of the third respondent against its Managing Committee and a notice requiring convening of a general body to consider the no confidence motion was given by 31 other members of the third respondent to the Registrar. On 13.12.2021, the Registrar issued Ext.P8 order invoking Section 30(3) of the Act, nominating an officer under him to call for a special general body of the third respondent to consider the no-confidence motion. The officer authorised by Ext.P8 order thereupon decided to convene a special general body of the third respondent on 06.01.2022 and instructed the Managing Director of the third respondent to issue notice of the proposed special general body to the members. Ext.P9 is one of R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 5 :- the notices issued by the Managing Director in this regard. The writ petition was instituted at that point of time challenging Ext.P8 order and Ext.P9 notice. The appellants also sought in the writ petition a declaration that the amendment made to Section 33(1) of the Act in terms of Act 33 of 1971 to the extent it provides for appointment of a new committee or an Administrator in the event of a no-confidence motion being passed by the general body against the existing managing committee, stands repealed by the application of the doctrine of desuetude and also a declaration that a no-confidence motion cannot be moved against an elected managing committee of a society.
4. The questions formulated for decision in the writ petition were the following:
(a) Is there any provision under the Kerala Co-operative Societies Act (hereinafter referred to as "KCS Act") enabling a no-confidence motion be moved against the Managing Committee of a Society?
(b) Is that part of Section 33 of the KCS Act providing for moving of a no-confidence motion against the Managing Committee, a dead letter, applying the doctrine of desuetude?
R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 6 :-
(c) In the absence of any Rules prescribing the procedure for moving a motion of no-confidence against a Managing Committee in terms of Section 33 of the KCS Act, is not the statutory provision unenforceable/ sterile?
(d) Does the Registrar have the power to summon a Special General Body under Section 30(3) of the KCS Act for considering a motion of no-confidence against a Managing Committee?
(e) Can the Registrar summon a General Body under Section 33 of the KCS Act without requisition from the prescribed number of members in terms of Section 30(1)?
(f) Can the delegatee of the Registrar further delegate the power under Section 30(3) of the KCS Act to summon a Special General Body Meeting?
The learned Single Judge answered all the questions against the appellants and dismissed the writ petition.
5. The decision of the learned Single Judge was impugned in the writ appeal on several grounds, and after considering the various grounds urged exhaustively, this court affirmed the decision of the learned Single Judge in terms of the judgment sought to be reviewed.
R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 7 :-
6. Heard the learned Senior Counsel for the appellants, the review petitioners.
7. The learned Senior Counsel for the appellants raised two contentions. The first contention was that the statement in paragraph 7 of the judgment that he did not contend at the time of hearing that the Act does not contemplate removal of an elected managing committee on a no-confidence motion is incorrect inasmuch as one of the contentions urged at the time of hearing was that in the absence of a provision enabling the same in the Act, a no- confidence motion cannot be moved against an elected managing committee. The submission of the learned Senior Counsel, therefore, was that the said argument should have been met by this court while disposing of the appeal. The second contention raised by the learned Senior Counsel is that the judgment sought to be reviewed was one rendered solely based on the decision of the Apex Court in Vipulbhai M. Chaudhary v. Gujarat Coop. Milk Mktg. Federation Ltd., R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 8 :- (2015) 8 SCC 1; that the said judgment was one rendered based on the 97th amendment to the Constitution and since the 97th amendment to the Constitution has been declared unconstitutional subsequently, the very foundation of the judgment is lost.
8. We have anxiously considered the contentions urged by the learned Senior Counsel for the appellants.
9. As evident from the judgment rendered by the learned Single Judge, the appellants were proceeding in the writ petition as if Section 33(1) of the Act enables moving of a no- confidence motion against an elected managing committee. The argument before the learned Single Judge therefore was that the said provision has become a dead letter consequent on its non user applying the doctrine of desuetude. True, in the course of arguments, the court entertained a doubt as to whether the provision in Section 33(1) could be construed as an enabling provision for moving a no-confidence motion against an elected managing committee and in the said context, the R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 9 :- learned Senior Counsel for the appellants submitted that the said provision cannot be construed as an enabling provision for the said purpose. It was also submitted by the learned Senior Counsel that the provision in Section 33(1) can be understood only as one providing for the further course of action to be adopted by the authorities under the Act in the event a no- confidence motion being passed against an elected managing committee. The learned Senior Counsel for the appellants, however, is not right in contending that this Court has not considered the said contention. In paragraph 10 of the judgment, although this Court has taken note of the fact that there is no specific enabling provision in the Act for removal of an elected managing committee on a no-confidence motion, it was found that in the light of the observation made by the Full Bench of this Court in S.Lakhmanan, President, Thiruvilwamala Weavers Co-operative Society Ltd. v. V.Velliankeri, Member of Board of Directors, Thiruvilwamala Weavers Co-operative Society Ltd, AIR R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 10 :- 2002 Kerala 325, the provision in Section 33(1) of the Act needs to be understood as an enabling provision. As noted, it was also observed by this court in the said paragraph that in the light of Article 43B of the Constitution providing for democratic control of co-operative societies, it is unnecessary to delve deep into the question whether there exists any enabling provision for removal of an elected managing committee on a no-confidence motion. Needless to say, there is no merit in the first contention.
10. Coming to the second contention, as noted, the argument is that the judgment sought to be reviewed is one rendered solely based on the decision of the Apex Court in Vipulbhai; that the decision in Vipulbhai was one rendered based on the 97th amendment to the Constitution, and since the said amendment has been declared unconstitutional subsequently, the very foundation of the judgment is lost. It is doubtful as to whether a review of the judgment could be sought on this ground. Be that as it may, we propose to deal R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 11 :- with this contention. First of all, the judgment sought to be reviewed is not one rendered solely based on the decision of the Apex Court in Vipulbhai. The foundation of the judgment is the provision contained in Section 33(1) of the Act, the scope of which has been explained by the Full Bench of this Court in Lakshmanan. Of course, Article 43B of the Constitution introduced in terms of the 97 th amendment to the Constitution and its scope explained by the Apex Court in Vipulbhai that the authority of a body to remove a person elected by that body to an office is part of the democratic control of co- operative societies has been relied on by this Court to reinforce the conclusion arrived at.
11. True, Vipulbhai is a case where decision was rendered by the Apex Court based on the 97 th amendment to the Constitution, in terms of which, among others, Part-IXB was introduced to the Constitution. In terms of the said constitutional amendment, Article 19(1)(c) of the Constitution was also amended conferring a fundamental right on citizens to R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 12 :- form co-operative societies and Article 43B was introduced in Part IV of the Constitution providing that the State shall endeavour to promote voluntary promotion, autonomous functioning, democratic control and professional management of co-operative societies. The 97th amendment to the Constitution inserting Part-IXB into the Constitution was held to be ultra vires the Constitution by the Gujarat High Court in W.P. (PIL) No.166 of 2012 for not taking recourse to Article 368(2) of the Constitution providing for ratification by the majority of the State Legislatures. It was, however, clarified in the judgment that the said decision will not affect other parts of the 97 th amendment to the Constitution. The operative portion of the judgment of the Gujarat High Court reads thus:
"We, therefore, allow this Public Interest Litigation by declaring that the Constitution [97th amendment] Act, 2011 inserting part IXB containing Articles 243ZH to 243ZT is ultra vires the Constitution of India for not taking recourse to Article 368(2) of the Constitution providing for ratification by the majority of the State Legislatures. This order, however, will not affect other parts of the Constitution [97th amendment] Act, 2011. In the facts and circumstances, there will be no order as to costs."
R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 13 :- The said decision of the Gujarat High Court was challenged before the Apex Court and the matter was disposed of in terms of the judgment in Union of India v. Rajendra N. Shah, AIR 2021 SC 4905. In terms of the said judgment, the decision of the Gujarat High Court was upheld by the Apex Court only to the limited extent it strikes down the entirety of Part IXB of the Constitution in relation to co-operative societies other than multi-state co-operative societies by declaring that Part IXB of the Constitution is operative only to multi-state co-operative societies. The operative portion of the majority opinion in the said case reads thus:
"The judgment of the High Court is upheld except to the extent that it strikes down the entirety of Part IXB of the Constitution of India. As held by us above, it is declared that Part IXB of the Constitution of India is operative only insofar as it concerns multi-state co-operative societies both within the various States and in the Union territories of India. The appeals are accordingly disposed of."
In other words, the amendment made to Article 19(1)(c) and the amendment made to Part IV of the Constitution inserting Article 43B is part of the Constitution unaffected by the R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 14 :- judgments aforesaid. We are of the view that it cannot, therefore, be said that the decision of the Apex Court in Vipulbhai cannot be relied on for any purpose whatsoever. We have referred to the said facts in the judgment and we have relied on the decision of the Apex Court in Vipulbhai only to the extent the said judgment deals with the scope of Article 43B introduced into the Constitution in terms of the 97 th amendment. Needless to say, there is no merit in the second contention as well.
The review petition, in the circumstances, is without merits and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
YKB R.P.No.330 of 2022 in Writ Appeal No.159 of 2022 -: 15 :- APPENDIX PETITIONER ANNEXURES Annexure I TRUE COPY OF THE WRITTEN SUBMISSION SUBMITTED BY THE COUNSEL FOR THE APPELLANTS IN W.A. NO. 159/2022 DATED 07.03.2022.