Kerala High Court
V.D. Johny vs The State Of Kerala on 5 December, 2024
Author: Amit Rawal
Bench: Amit Rawal
WA NO. 1943 OF 2024 and conctd. case 1
2024:KER:92289
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 5TH DAY OF DECEMBER 2024 / 14TH AGRAHAYANA, 1946
WA NO. 1943 OF 2024
AGAINST THE JUDGMENT IN WP(C) NO.43270 OF 2023 OF HIGH
COURT OF KERALA
APPELLANT(S)/PETITIONER:
V.D. JOHNY
AGED 73 YEARS
S/O DEVASSY, VATHUKKADAN HOUSE, KOTTANALLOOR P.O.,
IRINJALAKUDA, THRISSUR DISTRICT, PIN - 680662
BY ADVS.
NISHA GEORGE
ANSHIN K.K
GEORGE POONTHOTTAM (SR.)
RESPONDENT(S)/RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT
OF CO-OPERATION, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES
JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O.,
THIRUVANANTHAPURAM, PIN - 695014
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL)
AYYANTHOLE, THRISSUR DISTRICT, PIN - 680003
WA NO. 1943 OF 2024 and conctd. case 2
2024:KER:92289
4 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL)
CHALAKUDY, THRISSUR DISTRICT, PIN - 680307
5 THE ADMINISTRATIVE COMMITTEE
THUMBOOR SERVICE CO-OPERATIVE BANK LTD NO. 359,
KOTTANALLOR, THRISSUR DISTRICT, REPRESENTED BY ITS
CONVENOR, PIN - 680662
6 THE THUMBOOR SERVICE CO-OPERATIVE BANK LTD NO. 359
REPRESENTED BY ITS SECRETARY, THUMBOOR P.O.,
KOTTANALLOR, THRISSUR DISTRICT, PIN - 680662
7 T.S.SAJEEVAN
CONVENOR, ADMINISTRATIVE COMMITTEE OF THE THUMBOOR
SERVICE CO-OPERATIVE BANK LTD NO. 359, RESIDING AT
THAIPARAMBIL HOUSE, THUMBOOR P.O., KOTTANALLOR,
THRISSUR DISTRICT, PIN - 680662
8 SIJO KOCHAPPAN
ADMINISTRATIVE COMMITTEE MEMBER OF THE THUMBOOR
SERVICE CO-OPERATIVE BANK LTD NO. 359, RESIDING AT
PAROKKARAN HOUSE,THUMBOR P.O., KOTTANALLOR, THRISSUR
DISTRICT, PIN - 680662
9 JIJO P.I
ADMINISTRATIVE COMMITTEE MEMBER OF THE THUMBOOR
SERVICE CO-OPERATIVE BANK LTD NO. 359, RESIDING AT
PEREPPADAN HOUSE, KUTHIRATHADAM, THUMBOOR P.O.,
KOTTANALLOR, THRISSUR DISTRICT, PIN - 680662
OTHER PRESENT:
SRI P C SASIDHARAN, SR GP SRI T K VIPINDAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05.12.2024,
ALONG WITH WA.1947/2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA NO. 1943 OF 2024 and conctd. case 3
2024:KER:92289
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 5TH DAY OF DECEMBER 2024 / 14TH AGRAHAYANA,
1946
WA NO. 1947 OF 2024
AGAINST THE JUDGMENT IN WP(C) NO.3646 OF 2024 OF HIGH
COURT OF KERALA
APPELLANT(S)/PETITIONER:
JOHNY KACHAPPILLY
AGED 58 YEARS
S/O. PORINCHU, RESIDING AT KACHAPPILLY HOUSE,
KOTTANELLUR P.O., THRISSUR DISTRICT, PIN - 680662
BY ADVS.
NISHA GEORGE
ANSHIN K.K
GEORGE POONTHOTTAM (SR.)
RESPONDENT(S)/RESPONDENTS:
1 THE STATE CO-OPERATIVE ELECTION COMMISSION
3RD FLOOR, CO BANK TOWERS, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM , REPRESENTED BY ITS
SECRETARY, PIN - 695033
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
OFFICE OF THE JOINT REGISTRAR OF COOPERATIVE
SOCIETIES (GENERAL), AYYANTHOLE, THRISSUR
DISTRICT, PIN - 680003
3 THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE
SOCIETIES
MUKUNDAPURAM, THRISSUR DISTRICT, PIN - 680733
WA NO. 1943 OF 2024 and conctd. case 4
2024:KER:92289
4 THE ADMINISTRATIVE COMMITTEE
THE THUMBOOR SERVICE CO-OPERATIVE BANK LTD NO.359
HEAD OFFICE, THUMBOOR P.O., VELLANGALLOOR (VIA),
THRISSUR DISTRICT, REPRESENTED BY ITS CONVENOR,
PIN - 680662
5 THE THUMBOOR SERVICE CO-OPERATIVE BANK LTD NO.359
HEAD OFFICE, THUMBOOR P.O., VELLANGALLOOR (VIA),
THRISSUR DISTRICT, REPRESENTED BY ITS SECRETARY,
PIN - 680662
OTHER PRESENT:
SRI P C SASIDHARAN, SRI T K VIPINDAS
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
05.12.2024, ALONG WITH WA.1943/2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WA NO. 1943 OF 2024 and conctd. case 5
2024:KER:92289
JUDGMENT
[WA Nos.1943/2024, 1947/2024] Amit Rawal, J.
This order shall dispose of two (2) writ appeals ie., W.A No.1943 of 2024 and 1947 of 2024 against the common decision dated 6.11.2024 arising out of WP(C) No.43270 of 2023 and WP(C) No.3646 of 2024 wherein the following reliefs sought in the writ petitions have been considered to some extent.
WP(C) No.3646 of 2024i. Issue a writ in the nature of mandamus, directing the 2nd respondent in issuing appropriate direction to the Administrative Committee of the society to adopt resolution for holding election to the managing committee of the 5th respondent Bank within a period of 35 days and entrust the administration of the society with the elected managing committee, ii. Issue a writ declaring that the administration of the 5th respondent society has to be entrusted with the democratically elected Managing Committee is the mandate of law;
iii. Issue a writ declaring that continuance of administrative committee in the office of the 5th respondent society for more than four years is contrary to the Co-operative Principles as envisaged Under Schedule-II of the Kerala Co- operative Societies Act and thereby, it is bad in law;
WP(C) No.43270 of 2023i. Issue a writ of certiorari to call for the records leading up to Exhibit P6 and quash the same;
ii. Issue a writ of certiorari to call for the records leading up to Exhibit-P7 and to quash the same;
WA NO. 1943 OF 2024 and conctd. case 62024:KER:92289 iii. Issue a writ declaring that by invoking the provisions of Section 32 and Section 33 of the Kerala Co-operative Societies Act to the extent which permits the appointment of ordinary members and non-members as members of the administrative committee of a co-operative society is ultravires and against the co-operative principles included in the Kerala Co-operative Societies Act & Rules;
iv. Issue a writ declaring that the appointment of 7 to 9 respondents as the Administrative Committee members of free society by way of Exhibit-P6 is contrary to the co- operative principles and would defeat the purpose of the co-operative movement;
v. Declare that the Administrative Committee is not clothed with any power to tinker with the records maintained by the society, other than to manage the day today affairs of the society and to conduct the election with the existing records, materials and resources.
vi. Issue a writ declaring that the power conferred by Section 32 & 33 of the Kerala Co-operative Societies Act to appoint ordinary members and non-members as members of the Administrative Committee is ultra vires and against the co- operative principles;
vii. Issue a writ of mandamus directing the 3rd respondent to appoint an officer of the department as the part time administrator till an elected managing committee assumed office of the 6th respondent society;
Facts
2. The managing committee of the Thumboor Service Co-
operative Bank Limited, Kottanallor, Thrissur District was superseded through an appointment of an Administrator on the basis of an order dated 25.5.2019 passed in CRP No.5427 of 2016. On 24.8.2018, the Administrator appointed earlier, was replaced by an Administrative WA NO. 1943 OF 2024 and conctd. case 7 2024:KER:92289 Committee consisting of departmental officials. After the expiry of two years, the administrative committee was again replaced by a part-time Administrator on 3.6.2022. The part time Administrator was replaced by an Administrative Committee consisting of departmental officials on 27.1.2023. Vide Ext.P6 dated 26.9.2023, a new Administrative Committee of non members was constituted by the Joint Registrar. The grievance of the petitioners, who are the members or the ex-President of the Society in the writ court was that the Administrative Committee appointed vide Ext.P6 on 26.9.2023 could not be given the control for the election in view of the amendment caused in Section 33 of the Act by Act 9 of 2024 whereby it is mandatory for the Government to appoint the Administrative committee out of the eligible members of the Society and they would be responsible in holding the elections as well as preparation of the voters list. The other grievance projected was with regard to the process of issuance of notice by the lastly appointed committee calling upon the even registered members to issue identity card to disclose their credentials and justification to be member or otherwise.
3. The aforementioned plea was contested by the present Administrative Committee on the premise that it was a adoption of delaying tactics. In fact, it was a proxy litigation at the instance of the previous President, who never wanted to hold the election and wanted to gain the power and conduct election with the already appointed members who may not be even eligible.
WA NO. 1943 OF 2024 and conctd. case 82024:KER:92289
4. Learned writ court by ignoring the amended provisions permitted the committee appointed vide order dated 26.9.2023, Ext.P6 to continue and hold elections but before the elections, the process already initiated vide Ext.P7 dated 27.11.2023 in writ petition No.43270 of 2023 to undertake the task of eligibility/qualification of the members to be valid or otherwise for the purpose of preparation of the voters list should be completed within a time line and thereafter conduct elections.
5. The grievance expressed by the petitioner in the writ appeal represented by Sri.George Poonthoottam, learned Senior counsel assisted by Sri.Anshin K.K is that the judgment suffers from material irregularity much less repungancy for the reason that the amended provisions of Section 33 are mandatorily required to be followed in every Society which is actually being followed in most of the Society where the Administrator on supersession had been appointed by replacing with a fresh members of the Administrative committee, out of the eligible members of the Society. One of the notices Ext.P7 had been issued to a member who has already been issued identity card and paying tax with regard to the property falling within the jurisdiction of the Society. It was in fact an exercise in futility calling upon the registered members, duly registered and enrolled in accordance with law, to approve them to hold the election in a slipshod manner.
6. On the other hand, Sri.P.C Sasidharan, present in court WA NO. 1943 OF 2024 and conctd. case 9 2024:KER:92289 accepts notice and contested by raising the objection with regard to the maintainability of the writ petition as the petitioners were not even the members for, the notice Ext.P7 has been issued to Sri. John whereas the writ petitioner is Sri.V.D Johny and it is also an adoption of a dilatory tactics by the erstwhile President ie., a proxy litigation to delay the adjudication and reign power by hook and crook.
7. We have heard the learned counsel for the parties and appraised the paper book. The operative part of the impugned order under challenge is reflected from paragraph No.8, 9 and 13 which are extracted herein below.
8. Be that as it may, as the Administrative Committee is in power for a considerable time, I am of the view that the challenge against Ext.P6 need not be considered and it is sufficient that a direction is given to conduct election to the Co-operative Society expeditiously.
9. As far as Ext.P7 is concerned, it is a notice issued to a member of the Committee to bring documents to establish that he is eligible to continue as a member. According to the petitioner, such notices have been issued to more than 300 persons. Prima facie, Ext.P7 is intended o ensure that only eligible members are permitted to continue and are included in the Voters List. Therefore, the challenge against Ext.P7 should fail.
13. I have heard the learned counsel for the petitioners, the respective learned Standing Counsel appearing for the Administrative Committee and the Election Commission and the learned Government Pleader representing the official respondents. In the afore facts and circumstances of the case, these writ petitions are disposed of directing the 5th respondentAdministrative Committee in W.P.(C) No.3646 of 2024 to conclude proceedings pursuant to Ext.P7 (in W.P.(C) No.43270 of 2023) and similar notices as expeditiously as possible and within a period of 45 days from today. After concluding those proceedings within 45 days, the Administrative Committee shall take a resolution for conducting election without any further delay and forward it to the Election Commission within a further WA NO. 1943 OF 2024 and conctd. case 10 2024:KER:92289 period of three weeks therefrom.
8. On perusal of the same, it is evident that as far as the grievance in Ext.P6 is concerned, the learned Single Judge did not accept the challenge to Ext.P6 but permitted the already appointed Administrative Committee of non members to conduct the elections after undertaking the task of preparation of list of members within 45 days. The point to be pondered by us is as to whether the previously appointed committee ie., in September 2023 vide Ext.P6 can be permitted to continue as there has been an amendment in the Act by Act No.9 of 2024. The amended provisions of Section 33 of the Kerala Co-operative Societies Act reads as under:
33. Appointment of new committee or administrator on failure to constitute committee, etc. (1)Where the term of office of a committee has expired and new commit has not been constituted, or [where a no-
confidence motion is passed by the general body against the existing committee or where the existing committee resigns enbloc or where vacancies occur in the committee either by resignation or otherwise and the number of remaining members cannot constitute the quorum for the meeting of the committee, or where the committee failed to hold its regular meeting consecutively for six months or where the Registrar is satisfied,] [Substituted 'where the register is satisfied' by Kerala Act No. 38 of 1971.]
(a)that a new committee cannot be constituted before the expiry of the term of office of the existing committee; or(aa) [ there is stalemate in the constitution or functions of the committee.] [Inserted by Kerala Act No. 8 of 2013.](b)[ that a new committee is prevented from entering upon office or a new committee fails to enter upon office, on the date on which the term of office of the existing committee expires, the Registrar may, either suo motu or on the application of any member of the society, after intimating the Circle Co- operative Union, appoint one administrator or an administrative committee consisting of not more than three individuals, one among them as convener, who need not be WA NO. 1943 OF 2024 and conctd. case 11 2024:KER:92289 member of the society to manage the affairs of the society, for a period not exceeding six months as may be specified in the order, which period may, at the discretion of the Registrar and for reasons to be recorded in writing, be extended, from time to time, so, however, that the aggregate period shall not, in any case, exceed one year or till a new committee enters upon office, whichever is earlier.] [Substituted by Kerala Act No. 7 of 2010.] (1A)[ Notwithstanding anything contained in sub-section (1) , where on receipt of a report from the Registrar, the Government are satisfied that a new committee cannot be constituted or cannot enter upon office of the society before the expiry of the term of office of the [administrator or administrative committee] [Inserted by Kerala Act No. 16 of 1993.], as the case may be, appointed by the Registrar under sub section (1) and that it is necessary in the public interest to manage the affairs of the society and to enable a new elected committee to enter upon office, the Government may, by notification in the Gazette, for reasons to be recorded, permit the Registrar to extend the terms of the said [administrator or administrative committee] [Substituted 'committee, administrator or administrators' by Kerala Act No. 22 of 2013, dated 25.4.2013.], as the case may be, for a further period not exceeding one year in the aggregate or till a new committee enters upon office, whichever is earlier.](2)The [administrator or administrative committee] [Substituted 'committee or administrator or administrators' by Kerala Act No. 22 of 2013, dated 25.4.2013.] appointed under [sub- section (1) and (1A) ] [Substituted 'sub-section (1)' by Kerala Act No. 16 of 1993.] shall, subject to the control of the Registrar and to such instructions as he may from time to time give, have power to exercise all or any of the powers and functions of the committee or of any officer of the society and take all such action as may be required in the interests of the society.(3)The [administrator or administrative committee] [Substituted 'committee or administrator or administrators' by Kerala Act No. 22 of 2013, dated 25.4.2013.] shall arrange for the constitution of a new committee or for the entering upon office of the new committee, as the case may be.
9. On perusal of the same, it is evident that on commencement of the amendment in every Society which has been either superseded or for some other reasons has been replaced by an Administrative WA NO. 1943 OF 2024 and conctd. case 12 2024:KER:92289 Committee or an Administrator, the Administrative committee has to be appointed out of the eligible members of the Society. However, concededly, the members of the Committee appointed vide Ext.P6 on 26.9.2023 is not out of the members of the Society. In our considered view, the already appointed committee cannot be permitted to hold elections and undertake the task as has been directed to be followed by the Single Bench. Accordingly, the findings of the learned Single Bench on this point and thereafter prepare the list are quashed.
Thus we dispose of the writ appeal by issuing following directions:
(i) The Joint Registrar shall immediately within a period of one week from the date of receipt of the certified copy of this judgment, appoint the Administrative Committee, strictly as per the amended provisions of Section 33 of the Act.
(ii) The newly appointed Administrative Committee as appointed in view of the directions aforementioned, shall undertake the task of verifying the membership for the purpose of preparation of the voters list strictly in accordance with law and prepare the voters list within a period of two (2) months and will not unnecessarily cause humiliation and harassment to the already enrolled members who have been issued identity cards/e-face identity cards and have the documents like tax receipts and ownership.
(iii) The newly appointed Committee shall issue electronic identity cards strictly as per the provisions of Rule 16(b) of the Kerala Co-
operative Societies Rules within a period aforementioned and WA NO. 1943 OF 2024 and conctd. case 13 2024:KER:92289 conduct the elections within a period of one month thereafter.
(iv) In the meantime, steps, if any as reflected from the advertisement has been undertaken by the already appointed Administrative Committee shall be null and void being without jurisdiction, leaving open to the newly appointed committee to take call, if needed.
Sd/-
AMIT RAWAL JUDGE Sd/-
sab K. V. JAYAKUMAR
JUDGE
WA NO. 1943 OF 2024 and conctd. case 14
2024:KER:92289
APPENDIX OF WA 1943/2024
PETITIONER ANNEXURES
Annexure 1 TRUE COPY OF THE NOTIFICATION DATED
26.11.2024 INVITING APPLICATIONS TO THE
POST OF ATTENDER AND TWO PEON POSTS
PUBLISHED IN A VERNACULAR DAILY NAMELY
'DESHABHIMANI'
Exhibit-P6 English Translation of Ext-P6
Exhibit P7 English translation of Exhibit P7
Annexure 1 English Translation of Annexure 1