Kerala High Court
P.Antony Robert vs Joint Registrar (General) Of ... on 25 April, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
TUESDAY, THE 12TH DAY OF MARCH 2013/21ST PHALGUNA 1934
WP(C).No. 8694 of 2012 (J)
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PETITIONER(S):
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1. P.ANTONY ROBERT,
AGED 46 YEARS,
PUTHEN PURACKAL, RAILWAY QUARTERS NO 207 A,
KALLEKULANGARA, PALAKKAD-678 009.
2. M.SOMASUNDARAN,
AARADHANA,
MAELPPURAM, OLAVAKKODE, PALAKKAD-678 002.
BY ADVS.SMT.A.K.PREETHA
SRI.C.ANIL KUMAR
RESPONDENT(S):
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1. JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES,
PALAKKAD-678 001.
2. SOUTHEN RAILWAY EMPLOYEES CONSUMER CO-OPERATIVE SOCIETY,
LIMITED NO P411, OLAVAKKODE, PALAKKAD - 678 008.
R2 BY ADVS. SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
R1 BY GOVERNMENT PLEADER, SMT.LILLY K.T
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-03-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DG
WP(C).No. 8694 of 2012 (J)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE PROCEEDINGS OF THE RETURNING OFFICER
DATED 25.04.2010.
EXT.P2: COPY OF THE MINUTES OF THE DIRECTOR BOARD MEETING
HELD ON 12.03.2012.
EXT.P3: COPY OF THE ORDER NO.1846/2012/O DATED 27.03.2012 ISSUED
BY THE 1ST RESPONDENT.
RESPONDENT'S EXHIBITS - NIL
//TRUE COPY//
P.A TO JUDGE
DG
A.M. SHAFFIQUE, J
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W.P. (C) NO. 8694 OF 2012
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Dated this the 12th day of March, 2013
JUDGMENT
Petitioners are challenging Ext.P3 order issued by the Joint Registrar of the Co-operative societies. The first respondent herein superseded the elected body by invoking the power under Section 33 (1) of the Kerala Co-operative Societies Act (hereinafter referred to as the 'Act'). In Ext.P3, it is indicated that the administration of the society is in a stand still and therefore, the power under Section 33(1) is invoked.
2. The petitioner contented that the general body of the society had elected seven members during the election held in 2010 and by virtue of Ext.P1, the Administrator who was in charge of the affairs of co-operative society has given charge to the elected body, pursuant to which the office bearers were elected on 3.5.2010. Thereafter, the society was conducting its business and without any further notice, Ext.P3 order came to be passed on 27.03.2012.
3. According to the petitioner the Joint Registrar could not have exercised any of it's powers under Section 33(1) of the Act as there was no situation warranting such an action and the impugned order is passed without giving notice in terms of the proviso to Section 33(1).
4. The 1st respondent had filed a counter affidavit indicating W.P. (C) NO. 8694 OF 2012 2 that the society could not function properly, as they were not in a position to elect the President of the society, since as per the bye- laws, it is for the Divisional Manager to nominate two ex-officio members in addition to the elected seven members to form a committee and the President is to be elected from the said two ex- officio members nominated by the Railway Department. Insofar as there was no such nomination, the President could not be appointed, which resulted in administrative in-efficiency. Still further it is contended that no prejudice was caused to the elected members by invoking Section 33 (1) as the society was under the Administrator for a long period and since the Railway Department is not nominating the two ex-officio members, there is no reason to permit the society to continue as such.
5. Heard the learned counsel for the petitioner, learned Government Pleader and learned counsel for the 2nd respondent.
6. The point to be considered in this case is whether the society could function without a President and whether the invocation of Section 33 (1) without notice amounts to violation of the principles W.P. (C) NO. 8694 OF 2012 3 of natural justice.
7. With regard to the first contention, a reference was made to the bye-law of the society in regard to the election of the President from among the ex-officio members. Ext.R2(a) is the extract of the bye-law which reads as under:
"The affairs of the society shall be managed by the Managing Committee which shall consist of the 9 members. Among them 7 members are elected by the General Body and 2 shall be Ex-officio members nominated by the Divisional Railway Manager the President shall be one among the Ex- officio members. Such Ex-officio members shall have equal status as elected members in the committee. The members shall be elected for THREE YEARS and shall be eligible for re-election subject to the Rules and shall be eligible for re-election subject to the Rules framed under the Kerala Co- operative Societies Act 1969."
Pursuant to the aforesaid bye- law it is the obligation of the Divisional Railway Manager to nominate two ex-officio members to the committee which shall consist of nine members. The other seven members are apparently elected by the general body. The bye-law indicates that the President shall be one among the ex-officio members nominated by the Divisional Manager.
8. An argument has been raised by the learned counsel for the petitioner that the bye-law is invalid as it is not open for the W.P. (C) NO. 8694 OF 2012 4 society to frame a bye-law, which is against the provisions of the Act. Reference is made to Section 28 (1) of the Act which reads as under:
"The general body of a society shall constitute a committee, for a period not exceeding (five years), in accordance with the by-laws and entrust the management of the affairs of the society to such committee.
Provided that in the case of society registered after the commencement of this Act, the persons who have signed the application to register the society may appoint a committee to conduct the affairs of the society for a period of three months from the date of registration or for such further period as the Registrar may consider necessary; but the committee appointed under this proviso shall cease to function as soon as a committee has been constituted in accordance with the bye-laws:
(Provided further that where the bye-laws so provide, the Government or the Registrar may nominate all or any of the members of the first committee, including the President or Chairman, for a period not exceeding (twelve months)"
9. The argument is that, it is for the general body of the society to constitute a committee in accordance with the bye-laws and to entrust the managment of the society to such committee. Section 28 A B reads as under :
Election and Removal of President, Vice President etc. (1) A committee constituted under sub-section (1) of section 28 shall elect from themselves a President, a Vice President a Treasurer or any other officer by whatever name he is designated in the manner as may be prescribed.
(2) A committee shall remove from office the President, Vice-
President or the Treasurer or any other officer of the committee if a motion expressing want of confidence in any or all of them is carried with the support of the majority of the members of such committee in accordance with the procedure as may be prescribed"
10. The above provision apparently indicates that the committee constituted under Section 28 shall elect from themselves W.P. (C) NO. 8694 OF 2012 5 the President, Vice President, a treasurer or any other officer. Therefore, it is for the committee to elect from themselves, the President or the Vice President. In terms with Section 28 (1) it is for the general body to constitute a committee in accordance with the bye-laws. When the bye-law provides that two out of seven members are to be ex-officio members nominated by the Divisional Railway Manager, apparently the election to the society is in accordance with the procedure prescribed. The question is whether there can be a restriction in electing a president and whether the bye-law is against the provisions of Section 28 AB of the Act. The argument of the learned counsel for the petitioner is that, since the committee is to elect the President from themselves, any person among themselves can be elected as the President. From the factual situation available it is evident that they did not opt to elect the President, whereas the Vice President alone was elected.
11. According to the learned counsel for the petitioner, in the absence of the President, the Vice president can function as the President. Such an approach has been made in view of the fact that W.P. (C) NO. 8694 OF 2012 6 they intend to comply with the bye-law conditions. No doubt, an election is required to the post of President as well, even going by the bye-law, but the election should be in between the ex-officio members and the post of President is not intended to be elected by any other seven members who are elected by the general body. Apparently, there is a conflict between the provisions of the Act and the bye-laws framed. But the fact remains that despite such a conflict the committee of seven members did not decide to elect from themselves a President, whereas they have elected the Vice President.
12. The question is whether the committee has ceased to carry on any business, or will it not be possible for the committee to proceed with the election of other office bearers in the absence of the President. Rule 38 of the Co-operative societies Rules reads thus:
"Constitution of committee, resignation and removal from membership:-"When a committee is constituted under S.28, the Secretary or the Chief Executive or any other officer discharging the functions of the Secretary or the Chief Executive shall, within one week from the date of the constitution of the committee convene the committee to elect its President and other office bearers. The Committee so convened shall elect its president and other officer bearers and also by resolution authorise the officers concerned to take charge from the outgoing office bearers.
(2) A report showing the names and addresses of the members of the committee which has taken charge and date on which they took charge shall be sent to the Registrar, Financing Bank and Circle Co-operative Union by the President of Society, within a week of W.P. (C) NO. 8694 OF 2012 7 their taking charge.
(3) Any member of a committee, whether elected or nominated may tender his resignation to the President of the committee.
(4) The President, on receipt of a resignation, shall within seven days from the date of receipt thereof place it before the committee of the society for consideration if the member is an elected person or send it to the authority who nominated the member, if he is a nominee.
The resignation shall have effect only from the date of its acceptance by the committee or the authority who nominated the member concerned as the case may be. The fact of its acceptance or otherwise shall also be communicated to the member concerned. In the case of nominees the fact of acceptance or otherwise shall be communicated to the society also."
Therefore, it is for the committee constituted under Section 28 of the Act to elect its President and other office bearers
13. The next question is if the committee does not elect its President, whether it should be deemed that the committee cannot function at all. It is not in doubt that the President is also an important functionary of a society as several powers are vested in the President. But the fact remains that, in the present case, the society did not elect the President in view of the fact that the Divisional Manager did not nominate the ex-officio members. That being the situation the provisions of the Act does not in any way indicate that the committee cannot function at all nor can the committee elect the office bearers. Facts and circumstances involved in this case would show that the office bearers were elected and they were functioning W.P. (C) NO. 8694 OF 2012 8 until Ext.P3 order.
14. Therefore, I am of view that even in the absence of the President being elected, on account of the factual situation, that the Railway Divisional Manager did not nominate the ex-officio members, it does not mean that there is no committee at all. The office bearers except the President was elected. The Vice President was permitted to officiate in the capacity the President until the President is elected, as per the terms of bye-law.
15. The other question is regarding want of notice as provided under proviso to section 33 , the proviso reads as under :
" Provided that before making such order the Registrar shall publish a notice on the notice board of the head office of the society inviting the objections to the making of the order within a period prescribed in the notice and consider such objections. Provided further that it shall not be necessary to furnish such notice in cases where the Registrar is satisfied that it is not reasonably practicable to do so".
16. Ext. P3 does not contain any explanation as to why it was not reasonably practicable to issue notice. The fact that there was no publication of notice is admitted. Therefore, unless there are some reasons stated in Ext.P3, as contemplated under the proviso to Section 33 of the Act, P3 is liable to be set aside on the ground of W.P. (C) NO. 8694 OF 2012 9 violation of natural justice.
17. The contention of the respondents that no prejudice is caused to the society is not acceptable for the mere reason that an elected body had been thrown out by Ext.P3 order.
18. No specific reasons have been stated other than what is stated above warranting an action under Section 33(1) of the Act. In that view of the matter I am satisfied that Ext.P3 is without any basis and is liable to be set aside.
In the result the writ petition is allowed. Ext.P3 is quashed. However it is made clear that nothing prevents the first respondent to initiate fresh proceedings after giving notice and reasons as contemplated in the Act and Rules and take further action in this regard. The Administrator shall hand over charge to the elected body within a period of one week from the date of a receipt of a copy of this judgment.
A.M. SHAFFIQUE, JUDGE jm/