Kerala High Court
M.S. Anil vs The Joint Registrar (General) Of ... on 2 July, 2021
Bench: C.T.Ravikumar, V Shircy, K.Haripal
WA No.876/2019 1 / 42
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
&
THE HONOURABLE MR. JUSTICE K.HARIPAL
Friday, the 2nd day of July 2021 / 11th Ashadha, 1943
W.A.NO. 876 OF 2019
AGAINST JUDGMENT DATED 08.02.2019 IN W.P.(C)No.31294/2018 OF THIS COURT
APPELLANT/PETITIONER:
M.S. ANIL, AGED 52 YEARS, SANKARA VILASAM, MARAYAMUTTOM,
NEYYATTINKARA, THIRUVANANTHAPURAM, PRESIDENT OF THE SUPERCEEDED
MANAGING COMMITTEE OF THE MARAYAMUTTOM SERVICE CO-OPERATIVE BANK
LTD- NO.984, MARAYAMUTTOM P.O., NEYYATTINKARA, THIRUVANANTHAPURAM.
BY ADVS. M/S.B.S.SWATHI KUMAR, ANITHA RAVINDRAN, HARISANKAR N
UUNNI,M.G.AISHWARYA, SREEKUMAR.S& REMYA RATNAM P.R.
RESPONDENTS/RESPONDENTS:
1. THE JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM-695001.
2. THE MARAYAMUTTOM SERVICE CO-OPERATIVE BANK LTD. NO.984, MARAYAMUTTOM
P.O., NEYYATTINKARA -695124, REPRESENTED BY ITS SECRETARY.
3. THE PART-TIME ADMINISTRATOR/ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES(G),NEYYATTINKARA, THE MARAYAMUTTOM SERVICE CO-OPERATIVE
BANK LTD. NO.984, MARAYAMUTTOM P.O., NEYYATTINKARA -695124.
(SUBSTITUTED) (ADMINISTRATIVE COMMITTEE REPRESENTED BY ITS CONVENOR,
THE MARAYAMUTTOM SERVICE CO-OPERATIVE BANK LTD NO.984, MARAYAMUTTOM
P.O, NEYYATTINKARA-695124. R3 IS CORRECTED AND SUBSTITUTED AS PER
ORDER DATED 28/03/2019)
4. V. JAYAN, AGED 39 YEARS S/O VARGHESE B., RESIDING AT BADHANEES,
MARAYAMUTTOM P.O., PERUMKADAVILA, THIRUVANANTHAPURAM-695124.
5. THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED
BY ITS GENERAL MANAGER, EAST FORT, THIRUVANANTHAPURAM-695001.
BY SENIOR GOVERNMENT PLEADER FOR R1, ADV. RAGHURAJ FOR R2 AND R3,
ADV.P.C.SASIDHARAN FOR R4 AND ADV. THOMAS ABRAHAM FOR R5.
Prayer for interim relief in the Writ appeal stating that in the
circumstances stated in the Appeal Memorandum the High Court be pleased
to stay the operation and implementation of the impugned judgement to the
extent it directs the 1st repondent to continue with the consultation
process and further proceedings pursuant to the same pending disposal of
this Writ Appeal.
WA No.876/2019 2 / 42
This Writ Appeal coming on for orders on 02.07.2021 upon perusing
the appeal memorandum, the court on the same day passed the following:
[P.T.O.]
PtK/16.07.21
WA No.876/2019 3 / 42
EXHIBIT.P3: TRUE COPY OF THE NOTICE NO.CRP(1)8593/2017 DATED
31.5.2018 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT.P4: TRUE COPY OF THE EXPLANATION DATED 20.6.2018 SUBMITTED
BEFORE THE 1ST RESPONDENT.
EXHIBIT.P6: TRUE COPY OF THE REPLY DATED 19.9.2018 BEFORE THE 1ST
RESPONDENT.
EXHIBIT.P8: TRUE COPY OF THE ORDER NO.CRP(1)8593/17 DATED 22.9.2018
OF THE 1ST RESPONDENT.
EXHIBIT.R1(A): A TRUE COPY OF LETTER NO.B AND L/2023/2018-19, DATED
14.06.2018 OF THE FINANCING BANK.
EXHIBIT.R1(B): THE TRUE COPY OF THE LETTER NO.C.C.U.1/18 DATED
18.09.2018 OF THE CIRCLE CO-OPERATIVE UNION.
WA No.876/2019 4 / 42
"C.R."
C.T.RAVIKUMAR, SHIRCY.V. & K.HARIPAL, JJ.
--------------------------------------------------
W.A.No.876 of 2019
--------------------------------------------------
Dated 2nd July, 2021
ORDER
Ravikumar, J.
A Division Bench of this Court doubted the correctness of the Division Bench decision in The Administrator, the Kerala State Co- operative Federation for Fisheries Development Ltd. No.FT 738 (Matsyafed) v. The Board of Directors of the Kerala State Co- operative Federation for Fisheries Development Ltd. No.FT 738 (Matsyafed) (W.A.No.1936 of 2011), (hereinafter referred for short 'the Matsyafed's case') and authored the order of reference dated 11.4.2019 by making a further observation that the decision in Gireesh Kumar v. Joint Registrar of Co-operative Societies reported in 2013 (3) KLT S.N.101 (Case No.105) is distinguishable.
2. A brief narration of the factual position that led to the order of reference is inevitable to identify the real scope of reference as also the points of reference to be answered. W.A.No.876 of 2019 is directed against the judgment dated 8.2.2019 in W.P.(C)No.31924 of 2018. The writ petitioner is the appellant. The challenge in the writ petition was against Ext.P8 order dated 22.9.2018 superseding the Managing Committee of Marayamuttom Service Co-operative Bank Ltd.No.984 (for short 'the Bank'), the term of which WA No.876/2019 5 / 42 W.A.No.876 of 2019 2 was to expire on 26.10.2018. After hearing the learned counsel on both sides and perusing the files relating to Ext.R1(a) communication dated 14.06.2018 of the 5th respondent Financial Bank and Ext.R1(b) communication dated 18.09.2018 of the Circle Co-operative Union, carrying their opinion when consulted by the Registrar on the issue of supersession of the Bank in terms of the mandate for consultation under sub-section (2) of Section 32 of the Kerala Co-operative Societies Act, 1969 (for short 'the KCS Act'), the learned Single Judge opined that the scope of consideration of the writ petition could be confined to the question as to whether Ext.P8 order of supersession is one issued in compliance with the statutory requirement of sub-section (2) of Section 32 of the KCS Act. It was held that the very concept of consultation in a proceeding under Section 32 of the KCS Act is to ascertain the views of the Financing Bank and also the Circle Co-operative Union, on the allegations levelled against the Managing Committee of the Society, with reference to the explanation offered by the Committee of the Society. In that view of the matter and taking into account the general directions issued by the Hon'ble Apex Court in State of M.P v. Sanjay Nagayach (2013 (2) KLT 733 SC) it was held that unless there is a proper and effective consultation with the Financing Bank and the Circle Co-operative Union, it could not be said that the mandate of sub-section (2) of Section 32 of the KCS Act was complied with while issuing Ext.P8 order of supersession. Upon such consideration it was found that there was no effective consultation and consequently, the WA No.876/2019 6 / 42 W.A.No.876 of 2019 3 learned Single Judge set aside Ext.P8 order of supersession, relying on two Division Bench decisions of this Court viz; Sahadevan v. Padmanabhan (2004 (1) KLT 192) and State of Kerala v. Urukunnu Service Co- operative Bank Ltd. (2013 (2) KLT 74). In the course of further consideration the decision in Gireesh Kumar's case (supra) was taken into account. In the said decision it was held that the order of supersession under Section 32(1) of the KCS Act, in addition to removal of the Committee and appointment of an Administrator, has another consequence of disqualification of Committee members from contesting the election in view of Clause (e) thereof. Though the members of the Committee have a right to resign if the resignation was after the notice of commencement of the proceedings under Section 32(1) of the KCS Act, i.e.,after the issuance of notice of enquiry, the the proceedings initiated will have to come to a logical end, it was further held therein. Applying the dictum thus laid down in Gireesh Kumar's case (supra) to the factual position, despite the expiry of the term of the Managing Committee on 26.10.2018 and the fact that the Administrator appointed had taken charge on the strength of Ext.P8 order, the learned Single Judge gave liberty to the Joint Registrar (General), Co-operative Societies, Thiruvananthapuram to proceed further with Ext.P3 notice issued under Section 32(1) of the KCS Act, based on Ext.P4 explanation and Ext.P6 reply offered by the petitioner/appellant. As a necessary sequel the following further directions are issued under the impugned judgment:- WA No.876/2019 7 / 42 W.A.No.876 of 2019 4
"25. xxxx xxx xxx. The 1 st respondent Joint Registrar shall forward a copy of Ext.P4 explanation and Ext.P6 reply offered by the petitioner to Ext.P3 show-cause notice, along with a tentative decision, to the Financing Bank and the Circle Co-operative Union, in order to ascertain their views, as provided under sub-section (2) of Section 32 of the Act. Thereafter 1st respondent Joint Registrar shall conduct a personal hearing, with notice to the petitioner, the members of the Managing Committee, who were in office, as on the date of Ext.P3 show-cause notice, and thereafter, take a decision as to the further course to be taken in the matter. A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment."
It is aggrieved by the liberty so granted and the consequential directions, as afore-noted, that the petitioner in W.P.(C)No.31294 of 2018, in spite of getting Ext.P8 order set aside, filed the above writ appeal.
3. The core contention in the appeal is that after setting aside Ext.P8 order the learned Single Judge should not have given liberty to the first respondent to proceed further with Ext.P3 notice issued under Section 32 of the KCS Act based on Ext.P4 explanation and Ext.P6 reply offered by the appellant as the term of the Managing Committee of the Society, statutorily fixed under Section 28(1) of the KCS Act had elapsed on 26.10.2018. In elaboration of the same it is further contended that the directions for repetition of the consulting process under Section 32 of the KCS Act, to conduct a personal hearing, with notice to the petitioner, the members of the Managing Committee, who were in office as on the date of Ext.P3 show-cause notice and also to take a decision as to the further course to be taken in the WA No.876/2019 8 / 42 W.A.No.876 of 2019 5 matter are unsustainable in view of the non-existence of the Managing Committee from 26.10.2018.
4. When the appeal came up for admission on 22.03.2019, the Division Bench admitted the same and stayed further proceedings pursuant to the impugned judgment. Obviously, the respondents relied on the unreported decision of a Division Bench of this Court in Matsyafed's case(supra) to support the decision in Gireesh Kumar's case (supra), which was relied on by the learned Single Judge for forming the conclusion that in view of the consequence of disqualification of the Committee members from contesting the election, as per Clause (e) of sub-section (1) of Section 32 of the KCS Act the proceedings under Section 32 of the KCS Act initiated pursuant to Ext.P3 notice would have to come to a logical end, despite the quashment of Ext.P8 order of supersession. Doubting the correctness of the decision in Matsyafed's case(supra) the order of reference dated 11.04.2019 was issued in the said circumstances.
5. For a worthy consideration of the reference a glance at the factual backdrop of Matsyafed's case (supra) is also essential. In Matsyafed's case (supra), W.A.Nos.1936 of 2011 and 31 of 2012, both carrying challenge against the judgment in W.P.(C)No.24401/2011, were allowed to a limited extent. Those appeals were filed against the judgment of the writ Court interfering with the order of supersession of the Managing WA No.876/2019 9 / 42 W.A.No.876 of 2019 6 Committee of the Kerala State Co-operative Federation for Fisheries Development Ltd., No.FT.738 (Matsyafed) under Section 32 of the KCS Act. Earlier, notice under Section 32 of the KCS Act was issued to the Managing Committee of Matsyafed by the 3rd respondent therein, upon satisfying the existence of ingredients for an action thereunder, in the report of inspection conducted under Section 66 of the KCS Act. The Managing Committee and the State Co-operative Union, on receipt of such notices sought time for filing reply. However, as the tenure of the Managing Committee was to expire soon and in the inquiry the Managing Committee was found to have involved in serious irregularities attracting action under Section 32(1) of the KCS Act the 3rd respondent therein issued order of supersession of the committee of Matsyafed within three days from the date of service of notice. The said order of supersession, issued in the aforesaid manner, was set aside by the learned Single Judge and the Managing Committee was restored in power. The State and the Administrator appointed to the Society pursuant to the supersession of the Managing Committee, filed W.A.Nos.31/2012 and 1936/2011 aggrieved by the setting aside of the order of supersession and restoration of the Committee in power. The Division Bench noticed that the writ Court interfered with the supersession on the ground of violation of natural justice and want of effective consultation with the State Co-operative Union and further that the term of office of the Managing Committee of the Society had expired subsequently and held that even when an order is found to be defective the WA No.876/2019 10 / 42 W.A.No.876 of 2019 7 proceeding should not be cancelled by the Court if it was initiated based on a report of inquiry or inspection, conducted in terms of the statutory provisions. It was observed by the Division Bench that haste was shown by the Director of Fisheries, who was then functioning as the Registrar of Co-operative Societies, only because the tenure of the Managing Committee of Matsyafed was getting over. Consequently, the Division Bench, in Matsyafed's case (supra), held that the proceedings initiated during the tenure of the Society under Section 32 of the KCS Act, pursuant to an inspection under Section 66, would not get extinguished merely because of the expiry of the tenure of the Managing Committee. in that view of the matter, in Matsyafed's case, the writ appeals were allowed by confirming the judgment of the learned Single Judge to the extent it set aside the order of supersession of the Managing Committee on the ground of violation of natural justice and want of effective consultation and then, by restoring the proceedings initiated pursuant to the notices issued under Section 32 to the files of the Director of Fisheries. Consequently, it was held that it is for the Director of Fisheries to issue fresh notices to all elected members of the Managing Committee and other persons against whom proceedings were issued under Section 32 of the KCS Act and to make effective consultation with the State Co-operative Union on supersession of the Managing Committee notionally and to consider whether supersession was called for. Further it was ordered thereunder thus:-
"If orders originally issued are restored backed by proper WA No.876/2019 11 / 42 W.A.No.876 of 2019 8 reasons and materials after hearing and giving opportunity to the elected members of the Managing Committee and after consultation with the State Co-operative Union, then all consequences will follow including disability to the members of the Managing Committee."
6. Taking into account the aforesaid factual position and doubting the legal position laid down in Matsyafed's case as above, in the instant case, the Division Bench passed the order of reference dated 11.4.2019 obviously feeling that such proceedings for supersession would abate when there is no Committee to be so removed and by posing the question as to whether the proceedings for supersession to remove the Managing Committee of a Society initiated under Section 32 of the KCS Act survive after the expiry of the term of the Managing Committee ?
7. For considering the reference we have to look into the scope of power of a Full Bench in dealing with a reference, bearing in mind the decisions of the Hon'ble Apex Court in State of Punjab v. Salil Sabhlok [2013 (2) KLT SN.17 [(C.No.20) SC] and the decision in Sukumaran v. Shalima (ILR 2008 (2) Ker. 149(SC)]. In Salil Sabhlok's case (supra) the Apex Court held that when specific questions were referred to Full Bench by a Division Bench the Full Bench could decide only questions referred to it and not the whole case. In Shalima's case (supra) the Apex Court was dealing with the powers of a Full Bench and held that when only reference was made to Full Bench, the Full Bench should only answer the question referred to it WA No.876/2019 12 / 42 W.A.No.876 of 2019 9 and remit the matter to Division Bench for deciding the matter on merits.
8. In the case on hand, though it would appear that only a question was referred by the Division Bench, in troth, it is not so. The opening sentences in the first paragraph of the order of reference read thus:-
"The judgment impugned quashes the order of supercession while the term of the Managing Committee has already expired. Do the proceedings for supercession to remove the Committee survive thereafter under Section 32 of the Act?"
The order of reference would reveal that the Division Bench has also observed that the decision in Gireesh Kumar's case is distinguishable since in that case the Division Bench was dealing with a conscious act of resignation by the members of a Committee and in the case on hand, the term of the Managing Committee had run itself out and therefore, nothing survives for supersession. Furthermore, in the order of reference, the Division Bench observed:-
"True it is that a disqualification attaches to the members of the superceded Committee under Section 32(1)
(e) of the Act. But the department is free to initiate surcharge proceedings against such members under Section 68 of the Act. A more severe disqualification attaches in that event under Rule 44(1)(i), [sic. 44(1)(l)], of the rules which is lost sight of."
It is after posing such questions and making such observations that the Division Bench ordered thus:-
WA No.876/2019 13 / 42W.A.No.876 of 2019 10
"Place the papers before the Chief Justice to enable the constitution of a Full Bench to decide the correctness of the decision in Matsyafed's case (supra)."
9. From the above narration it is evident that as per the reference, the Full Bench is virtually called upon to decide the correctness of the decision in Matsyafed's case (supra). Besides the same, in view of the observation of the Division Bench that Gireesh Kumar's case (supra) is distinguishable the Full Bench is also to answer the following questions:-
1. When the term of Managing Committee of a society had elapsed after the issuance of order of supersession under Section 32 of the KCS Act, upon its quashment on technical grounds, such as, violation of the mandatory procedures contemplated to ensure principles of natural justice or want of effective consultation as provided under sub-section(2) thereof, whether the said proceedings could still be permitted to be continued for the limited purpose notionally, for considering the question as to whether supersession of the said committee was called for (taking into account the consequence of order of supersession of a Committee under Section 32(1)(e) of the KCS Act) to ensure befalling of the three fold consequences on every member of that Committee in case of an affirmative answer?
2. When the Managing Committee of a Society upon receipt of notice calling for its objections as to the proposal for supersession under Section 32 of the KCS Act resigns en bloc and consequently, an Administrator or an Administrative Committee is appointed continuation of the proceedings notionally, for the limited purpose of considering whether supersession of the Committee was called for (taking into account the consequence of order of supersession of a Committee under Section 32(1)(e) of the KCS Act) to ensure befalling of the three fold consequences on every member of that Committee in case its answer is in the affirmative, is legally WA No.876/2019 14 / 42 W.A.No.876 of 2019 11 permissible ?
10. Some allied question may also crop up for consideration. For answering the reference it is inevitable to refer to Section 32 of the KCS Act. It, insofar as it is relevant, reads thus:-
"32. Supersession of Committee-(1) If the Registrar, after an inquiry by himself or through his subordinates or on a report of the financing bank, or the Vigilance and Anticorruption Bureau of the Government or the Vigilance Officer or otherwise, is satisfied that the committee of any society, -
(a) persistently makes default or is negligent in the performance of the duties imposed on it by this Act or the rules or bye-laws or does anything which is prejudicial to the interests of the society; or
(b) wilfully disobeys or fails to comply with any lawful order or direction issued under this Act or the rules; or
(c) makes any payment contrary to this Act or the rules or the bye-laws or causes any loss or damage to the assets of the society, by breach of trust of wilfull negligence; or
(d) misappropriates or destroys or tampers with the records or causes the destruction of records to cover up any misconduct or malpractice, He may, after giving the committee an opportunity to state its objections, if any, by order in writing, remove the committee and appoint in its place, one administrator or an administrative committee consisting of not more than three individuals, one among them as convener, who need not be members of the society, to manage the affairs of the society for a period not exceeding six months.
Provided that in the case of Co-operative Society, carrying on the business of banking, the provisions of the Banking Regulation Act, 1949 (Central Act 10 of 1949) shall also apply;
Provided further that in the case of a Co-operative Society, carrying on the business of Banking, appointment of WA No.876/2019 15 / 42 W.A.No.876 of 2019 12 Administrator/administrative committee shall not exceed one year in the aggregate:
Provided also that the Board of Co-operative Society shall not be superseded or kept under suspension where there is no Government share holding or loan or financial assistance or any guarantee by the Government or any Board or Institutions constituted by the Government.
Explanation I :- For the purpose of this proviso, financial assistance includes any financial assistance from the Kerala Co-operative Development and Welfare Fund Board, Deposit Guarantee Scheme implemented by the Kerala Co- operative Deposit Guarantee Fund Board, Kerala Co-operative Risk Fund Scheme implemented by the Kerala Co-operative Development and Welfare Fund Board, National Bank for Agriculture and Rural Development, National Co-operative Development Corporation and any other financial institution under the control of the State or Central Government and also any financial assistance guaranteed by the said institutions.
Explanation II :- A notice and an order given as per this clause to the President, in his absence to the Vice President or any committee members who is holding charge of President or Vice President or to the Chief Executive of a society shall be treated as an order given to the committee of the society.
(e) Every member of the committee superseded under this section shall from the date of order of such supersession stand disqualified to contest in the election to or to be nominated to the committee of any Society or to be appointed as an administrator in any society for two consecutive terms."
11. A perusal of Section 32 of the KCS Act would reveal that a Committee of a Society could be superseded under Section 32, if the Registrar is satisfied that any or more of the grounds mentioned in sub-section (1)(a) to
(d) exist. There can be no doubt that an inspection under Section 66 or an inquiry under Section 65, of the KCS Act can lead to initiation of proceedings WA No.876/2019 16 / 42 W.A.No.876 of 2019 13 for supersession of the Committee of a Society, of course, subject to the satisfaction of the ingredients therefor. The procedures prescribed under Section 32(2) of the KCS Act, essentially, envisage an effective consultation with the Financing Bank and the Circle Co-operative Union or the State Co- operative Union, as the case may be, before passing an order under sub- section (1) of Section 32, as if it is mandatory, except in the circumstances under sub-section (3) thereof. In such circumstances, when the power to initiate such proceedings for supersession without adhering to the provisions for affording opportunity to state objections by the Committee under sub- section (1) and the consulting process under sub-section (2) is permissible under sub-section(3) in the absence invocation of the power thereunder Committee of a Society could not be superseded without following the statutory mandates under sub-sections (1) and (2) thereof. (See the Division Bench decisions in Sahadevan v. Padmanabhan (2004 (1) KLT 192) and in State of Kerala v. Joint Registrar of Co-operative Societies, Ernakulam and others (2013 (3) KLT 105). The decision in Matsyafed's case (supra) would reveal that violation of natural justice and absence of consultation with the State Co-operative Union were the reasons for interference with the order of supersession. In Gireesh Kumar's case (supra) on receipt of notice to state why the committee should not be superseded the committee members resigned en bloc. In both the cases it is the consequence of disqualification of the members of the Committee of a WA No.876/2019 17 / 42 W.A.No.876 of 2019 14 Society from contesting in the election in case of supersession by virtue of Section 32(1)(e) of the KCS Act that made this Court to hold that despite the non-existence of the committee the proceedings under Section 32 of the KCS Act actually initiated should be taken to its logical end.
12. The question is merely because consequences would befall on every member of a Committee of a Society in terms of Section 32(1)(e) of the KCS Act in the event of supersession whether, ignoring the actual non- existence of the elected Managing Committee concerned, proceedings under Section 32 of the KCS Act for supersession could be permitted to be continued to have a logical end for the limited purpose of considering notionally as to supersession of the said Managing Committee was called for or not? Needless to say that the avowed purpose, as can be seen from those decisions, is to ensure visitation of consequences including disqualification on the members of that Committee in case of an affirmative answer on that question. We will firstly, consider what exactly are the consequences of supersession of a Committee of a Society under Section 32 of the KCS Act, on the members of the superseded Committee. In that regard, at the risk of repetition, we will refer to Section 32(1)(e) and it reads thus:-
"(e) Every member of the committee superseded under this section shall from the date of order or such supersession stand disqualified to contest in the election to or to be nominated to the committee of any Society or to be appointed as an administrator in any Society for two consecutive terms."WA No.876/2019 18 / 42 W.A.No.876 of 2019 15
(Underline supplied)
13. A perusal of the provisions under Section 32(1)(e) of the KCS Act would reveal that being a member of the Committee superseded under Section 32 of the KCS Act has three fold impacts namely, (i) disqualification to contest in the election to any society; (ii) disqualification to be nominated to the committee of any society and (iii) disqualification for being appointed as an administrator. Having noticed the treble consequences of being a member of a superseded committee in terms of Section 32(1)(e), we will have to look into the questions as to what exactly is the period of its impact and whether it applies only to the society concerned. Clause (e) of sub-section (1) of Section 32 is capable of creating confusion in that regard owing to the absence of proper punctuation. We think it appropriate, in this context, to refer to a decision of the Calcutta High Court in Tarak Chandra Mukherjee and Ors. v. Retan Lal Ghosal and Ors. (AIR 1957 Cal. 257). It is held therein that in construing a statutory provision, no account may be taken off punctuation marks. The reason why that rule came to be laid down was that in old times punctuation marks formed no part of a statute, as passed by Parliament, but were added subsequently when the matter was published in print. It is at least doubtful whether the rule would apply to the construction of modern statutes which are almost always presented to the legislature and passed it in a punctuated form. In the case on hand, Section 32(1)(e) of the KCS Act carries three different consequential disqualifications for being a member of a WA No.876/2019 19 / 42 W.A.No.876 of 2019 16 superseded committee in a row; in the form of phrases and at the same time joined one another by the conjunction 'or'. Therefore, use of commas in between the said consequences given as phrases, is grammatically incorrect and was rightly avoided. But then, the question is whether the words 'any society' and 'for two consecutive terms' employed in the said clause are applicable to all the three disqualifications. We may hasten to state that we are not oblivious of Rule 44(1)(k) of the KCS Rules which provides that no member of the society shall be eligible for being elected or appointed as a member of the society under Section 28 if he was a member of the committee which has been superseded and a period of one year has not elapsed from the date of supersession. Section 28 of the KCS Act deals with the constitution of a committee by the general body of a society for five years, in accordance with the bye-laws and entrustment of the affairs of the society concerned to such committee. A purposive interpretation of Section 32(1)(e) of the KCS Act tend us to take that the legislative intention appears to be that in all the three disqualifications should have effect 'for two consecutive terms' and 'in any society'. It is to be noted that a provision carrying treble disqualifications on being a member of the superseded committee was not there originally in Section 32 or elsewhere the said statute though section 32 dealing with supersession was there in the KCS Act and its solitary consequence was provided under Rule 44(1)(k) in the KCS Rules. We will refer to the unamended Rule 44(1)(k) of KCS Rules, first, and it reads as hereunder: WA No.876/2019 20 / 42 W.A.No.876 of 2019 17
"44. Disqualification of membership of committee.--
(1) No member of the Society shall be eligible for being elected, or appointed as a member of the committee of the society under S.28 if he:-
xxxxxxxx xxxxxxxx xxxxxxxx
(k) is a member of any committee which has been superseded and a period of one year has not elapsed from the date of supersession; or"
14. It is to the said provision viz., clause (k) of sub-rule (1) of Rule 44 of the KCS Rules, that the words 'was a member of the Committee' was substituted for 'is a member of any committee', by Notification SRO.510/69 dtd. 12.12.1969 and corrected by Notification dtd. 23.11.1970 in K.G.No.4 dtd. 27.1.1970. It can thus be seen that in clause (k) of sub-rule (1) of Rule 44, as per the said amendment, virtually the following changes have been effected:-
In place of 'is' and 'any' in the said words of the said clause, 'was' and 'the' were substituted besides making the small letter 'c' as capital letter in the word 'committee'. Evidently, a careful analysis would reveal that substantial changes were brought about by the said substitution in clause (k) of sub-rule (1) of Rule 44 of the KCS Rules. By substituting 'was' for 'is', the impact of disqualification under Rule 44(1)(k) was made applicable to a member who was a member of a superseded committee and at the same time the earlier position of incurring disqualification thereunder in case of being a member in 'any committee' was changed as one fetching qualification only in the case of being a member in 'the committee', which means the 'committee' WA No.876/2019 21 / 42 W.A.No.876 of 2019 18 as defined under clause(e) of Section 2 of the KCS Act. Going by Section 2(e) it means the governing body of a co-operative society by whatever name called, to which the management of the affairs of the society is entrusted.
Subsequently, certain crucial amendments were made to sub-section (1) of Section 32 of the KCS Act including insertion of clause(e) to sub-section(1) prescribing the afore-mentioned three fold disqualifications on the ground of being a member of 'the committee' superseded under section 32 in respect of 'any society' and also with more serious consequences.
According to our considered view, to effectuate such consequences according to the legislative intention it would have been appropriate to have proper use of the punctuation 'Comma (,)'. Punctuation literally means pointing. It is derived from the Latin word punctus which means a point. The punctuation Comma (,) is a little mark which marks the end of a clause or a phrase within a sentence and it gives a hint that something is to follow. In fact, according to us, even without such a punctuation the applicability of the duration viz., 'for two consecutive terms ' to all the three disqualifications, that too 'in any society', could be gathered from the scheme of the KCS Act and the KCS Rules. The word 'terms' used in clause (e) should be understood with reference to the provisions under Section 28(1) of the KCS Act. The words 'for two consecutive terms' cannot be taken as used in such a manner to make it applicable only to one of the disqualifications viz., for being appointed as an Administrator in any society. If it is so narrowly construed the duration of the WA No.876/2019 22 / 42 W.A.No.876 of 2019 19 impact for 'being a member in the committee that has been superseded' in any particular society as relates the right to contest in the election to the committee of that society will be as prescribed in Rule 44(1)(k) of the KCS Rules, and at the same time its impact on the said right as permissible under the KCS Act and the KCS Rules, as relates any other society will amount to life ban. Such a construction of Section 32(1)(e) will make a similar impact as relates the right to be considered for nomination to the committee of any other society. As a result, the disqualification on the ground of being a member in the committee that has been superseded on such a member,as relates the right to be considered for appointment as administrator in any society alone will have a duration of 'two consecutive terms'. It cannot be taken that the legislative intention was to prescribe such a huge different impact period for the three disqualifications that could be visited on a member of any particular society on the ground of being a member of the committee of that society which has been superseded. Thus, taking into account all the aforesaid aspects the legislative intention can only be taken as to make the duration of the impact of 'being a member of the committee that has been superseded' for two consecutive terms 'in any society' as relates all the three consequential disqualifications. Therefore, to promote advance and purpose of the legislation of clause (e) of subsection(1) Section 32 of the KCS Act it has to be construed in that manner.
15. Having noted the aftermath of being a member of a WA No.876/2019 23 / 42 W.A.No.876 of 2019 20 committee superseded under Section 32 of the KCS Act, as aforesaid, we will now, move on to consider the question whether to face such a series of disqualifications, a member of a society should be a member of an actually superseded Managing Committee of a society or is it legally possible or permissible to bring in such disqualifications by 'deemed supersession' or 'notional supersession' of the committee of a society. The direction to call for objections of the committee concerned, despite its non-existence, and also make an effective consultation on supersession of such a committee notionally; then consider the issue whether its supersession was called for to decide on the question of disqualification of every member of that committee in view of clause (e) of sub-section (1) of Section 32, has to be considered bearing in mind the aforesaid question. In other words, the question is whether actual supersession of a committee is a sine qua non for application of clause (e) of sub-section (1) of Section 32 or whether a 'deemed supersession' or a 'notional supersession' will also attract the said clause. To consider whether a member of a society who is not actually a member of the superseded committee can be deemed as a member of a superseded committee based on a deemed or notional supersession of the committee of the society concerned one should bear the position that when a person is deemed to be 'something', then the only meaning possible is that he is not really that 'something', which the Act requires him to be. In this context, it is only appropriate to bear in mind the decision of the Hon'ble Apex Court in WA No.876/2019 24 / 42 W.A.No.876 of 2019 21 State of Maharashtra v. Latjif Rajshi Shah reported in (2000) 2 SCC
699. It was held therein that when a person is deemed to be, the only meaning possible is that whereas he is not in reality that something of the Act of the legislature requires him to be treated as if obviously for the purpose of the said Act and not otherwise. Having said so, we will have to take into consideration of the position of law that it is legally impermissible to exercise the power 'to deem' when deeming of something is not statutorily permitted and if 'being of belonging to that something' is having adverse consequences. In such circumstances, the power 'to deem' would not be available and therefore, could not be exercised. In this context, it is also relevant to note the meaning of the word 'notional'. Going by the meaning of the same in Oxford Advanced Learner's Dictionary of Current English, Seventh Edition, it means: 'based on a guess, estimate, not existing in reality. In such circumstances, when adverse consequences flows from it, in the absence of statutory sanction, based on notion it would be impermissible in law to make a person to suffer serious consequences when he is not really that something, the Act requires him to be to suffer the consequences. In such circumstances, when a member of a society is not actually a member of a superseded committee he cannot be deemed to be a such member based on a consideration of a question whether supersession of the committee to which he belonged, was called for or not, in the absence of an enabling provision to do so, either specifically or impliedly, in Section 32 of the KCS Act. WA No.876/2019 25 / 42 W.A.No.876 of 2019 22
16. A scanning of Section 32 of the KCS Act would reveal that the cause of action for initiating proceedings for supersession of a committee in a society is the satisfaction of the Registrar of Co-operative Societies that a committee is guilty of any one of the circumstances referred to in clauses (a) to (d) of sub-section (1) of Section 32 and it is absolutely necessary to prevent the continuance of the committee allegedly guilty of creation of or responsible for such circumstances. Thus, it is evident that the whole purpose of initiating proceedings under Section 32 of the KCS Act is to supersede viz., to remove such a committee and appoint an Administrator or an Administrative Committee in its place. Therefore, once the committee concerned ceases to be in office the action for its removal will not survive and continuation of any action therefor, would be otiose. In other words, the cause of action would get abated as the committee would no longer be in existence and available to be replaced. The next question is whether such a situation would or could wipe out the liability of the members of such a committee on the ground of being a person, who is or was entrusted with the organisation or management of such society, based on their collective actions for which the committee could have been superseded and for which they are severally liable? The answer can only be in the negative. In Sivadasan Nair's case (supra) this Court held that the power of Section 32 of the KCS Act is invoked to adjudge whether the existing committee is guilty of the circumstances mentioned in Section 32, more particularly, in clauses (a) to (d) WA No.876/2019 26 / 42 W.A.No.876 of 2019 23 or sub-section (1) thereof, and not for adjudging whether the individual members of the committee were guilty of the same. At the same time, Section 68 of the KCS Act would apply in the latter case. Section 68 reads thus:-
"68. Surcharge:- (1) If in the course of an audit, inquiry, inspection or the winding up of a society, it is found that any person, who is or was entrusted with the organisation or management of such society or who is or has at any time been an officer or an employee of the society, has made any payment contrary to the Act and the rules or the bye-laws, or has caused to any loss or damage in the assets of the society by breach of trust or wilful negligence or mismanagement or has misappropriated or fraudulently retained any money or other property belonging to such society or has destroyed or caused the destruction of the records, the Registrar may, of his own motion or on the application of the committee, liquidator or any creditor, inquire himself or direct any person authorised by him by an order in writing in this behalf, to inquire into the conduct of such person.
(2) Where an inquiry is made under sub-section (1), the Registrar may, after giving the person concerned an opportunity of being heard, by order in writing, require him to repay or restore the money or other property or any part thereof, with interest at such rate, or to pay contribution and costs or compensation to such extent, as the Registrar may consider just and equitable.
(3) Where the money, property, interest, cost or compensation is not repaid or restored as per sub-section (2), the Registrar shall take urgent steps to recover such amounts from the concerned persons as arrears of public revenue due on land as specified in Section 79 of the Act."
17. Thus, it is evident that to attract Section 68 facts giving rise to the charge have to be disclosed in the course of the audit under Section 63, enquiry under Section 65 and inspection under Section 66 or winding up of the WA No.876/2019 27 / 42 W.A.No.876 of 2019 24 society concerned (See the decision in A.K.Francis v. Joint Registrar (1990 (2) KLT 470) rendered relying on the decision of the Apex Court in Pentakota Sriramalu v. Co-operative Marketing Society Ltd. (AIR 1965 SC 621). When going by the Section surcharge proceedings could be initiated against any person who is/was entrusted with the organisation or management of such society and the circumstances it is permissible to be taken, we have no hesitation to hold that the supersession or cessation in office, of the committee concerned cannot and will not wipe out the liability, if any, for any charge for which such a member is legally liable to be surcharged. In other words, in such circumstances, surcharge proceedings could be initiated against the members of such a committee, subject to the satisfaction of the ingredients to attract Section 68. In this context, it is to be noted that when order of supersession is interfered with on technical grounds and not based on any challenge based on report in an inquiry conducted under Section 65 or inspection conducted under Section 66, of the KCS Act, then despite such interference those reports would be available for an action under Section 68, subject, of course, to the satisfaction of the ingredients for such action. Rule 44(1)(l) of the KCS Rules would reveal that no member of a society would be eligible for being elected or appointed as a member of the Managing Committee of the society if he is surcharged under Section 68. Hence, the consequence of disqualification of the committee members from contesting the election in case of supersession of the committee cannot be the WA No.876/2019 28 / 42 W.A.No.876 of 2019 25 reason for permitting continuation of proceedings already initiated under Section 32 of the Act, but interfered with on technical grounds or initiated, but could not be taken to its logical end, even for the aforementioned limited extent, ignoring the non-existence of the committee. It is evident that such consequences would visit such a member only if there occurred an actual supersession of the Committee, in which he was a member, under Section 32 of the Act. We have already approached the said issue on a different angle. Still, we will consider certain further aspects.
18. The phrase "every member of the Committee superseded under this Section shall" preceding three of its consequential disqualifications would also make the aforesaid position beyond any doubt. When once the legislature imposed the condition/conditions to make vulnerable to the consequences arising out of some specified act or situation occurrence of such specified act and situation alone could cause such consequences. Here, the situation of being a member of a Committee of a Society that was superseded under Section 32 of the Act alone could, going by clause (e) of sub-section (1) of Section 32, make a member of a society liable to face the three serious consequences. Though contesting in the election to a co- operative society cannot be said to be fundamental right, it is certainly a statutory right and hence, it cannot be taken away by interpreting the relevant provision in the statute ignoring the words used therein. In such circumstances, taking note of the drastic consequences of being a member of WA No.876/2019 29 / 42 W.A.No.876 of 2019 26 a committee superseded under Section 32 of the KCS Act how can the words "the Committee superseded under this Section" be given a liberal interpretation so as to take in a Committee which could have been or should have been superseded invoking the power under Section 32 of the KCS Act when actually the committee of the particular society was not superseded. The fact that the committee became non-existent owing to the expiry of the term of committee of the society concerned or that the committee of that society tendered en bloc resignation soon on receipt of notice under Section 32 of the KCS Act granting an opportunity to state objections to the proposal to supersede the committee, cannot be reasons to continue the proceedings for supersession for the limited purpose of considering notional supersession and to impose the consequential disqualifications. Such a situation also could occur when an order of supersession of a committee of a society is successfully challenged on technical reasons, such as, without affording an opportunity to the Committee to state its objections or without effective consultation with the Circle Co-operative Union or State Co-operative Union, as the case may be, and the Financing Bank and meanwhile the prescribed term got elapsed. Therefore, according to our considered view, the usage of the phrase "every member of the Committee superseded under this section"
carries the legislative intention that in order to incur the disqualifications following that phrase the member/members concerned should have been a member/members of the superseded Committee under Section 32 of the Act.WA No.876/2019 30 / 42 W.A.No.876 of 2019 27
There is nothing in the KCS Act which would, expressly or impliedly, indicate that the provision for disqualification would proprio vigore apply in the case of situations of deemed or notional supersession. In short, for the aforesaid reasons, interpretation of clause (e) of Sub-section (1) of Section 32 of the KCS Act cannot be made in such a manner so as to permit continuation of proceedings under Section 32 of the KCS Act by granting such limited liberty, ignoring the non-existence of the committee concerned.
19. In the decision in Joint Registrar of Co-operative Societies v. Rajagopal Naidu [AIR 1970 Mad. 212(FB)] the Madras High Court held that 'supersession' means to make the existing things inefficacious by exercise of a superior power. As already noted, in the decision in K.Sivadasan Nair's case (supra) a Division Bench of this Court held that the power under section 32 of the KCS Act could be invoked only if the existing Managing Committee is guilty and what is to be adjudged is whether the existing committee is guilty of the matters mentioned in Section 32 of the KCS Act and not whether some individual members of the committee were guilty of any act of corruption while they were members of the previous committee. In that context, the decision of this Court in Shabin Antony v. Gireesh Kumar.M.S. and others (2018 (1) KLT 260) is also worthy for reference. The proceedings under Section 32 of the KCS Act is for the supersession of a committee and under Section 68 is for imposing surcharge on members or other responsible persons of a society are independent and separate WA No.876/2019 31 / 42 W.A.No.876 of 2019 28 proceedings, it was held therein. Thus, the decisions (supra) as also the very provisions under section 32 of the KCS Act would reveal that supersession could only be that of a committee and not that of member/members.
20. The words 'supersede' or 'supersession' are not defined under the KCS Act or in the KCS Rules. In the decision in Calcutta Municipal Corpn. v. Pawan Kumar Saraf (1999) 2 SCC 400 the Hon'ble Apex Court took note of the meaning of the word 'supersede' as "obliterate, set aside, annul, replace, make void or inefficacious or useless or repeal." In the decision in State of Orissa v. Titaghur Paper Mills Co.Ltd. ( AIR 1985 SC 1293) while dealing with Orissa Sales Tax Act and Orissa Government Notifications, the Apex Court considered the meaning of the word 'supersession' as hereunder:-
" The Shorter Oxford English Dictionary, Third Edition, at page 2084, defines the word 'supersession' as meaning "The action of superseding or condition of being superseded".................. Webster's Third New International Dictionary at page 2296 defines the word "supersession" as "the state of being superseded: removal and replacement".
21. In this context, it is to be noted that Section 32(1) confers on the Registrar the power to proceed on the basis of an enquiry by himself or through his officers on the basis of a report of the Financing Bank, or the Vigilance and Anti-Corruption Bureau and even otherwise, if any one of the circumstances referred in clauses (a) to (d) of sub-section (1) of Section 32 exists, to remove the committee from office. Certainly, it can be done only WA No.876/2019 32 / 42 W.A.No.876 of 2019 29 after complying with the procedures provided under sub-sections (1) and (2) of Section 32 in case he is not invoking the power under subsection (3) thereof. The next limb of Section 32(1) of the KCS Act is relevant in the contextual situation and, we will extract and refer to it, at the risk of repetition. It reads thus:-
"He may, after giving the committee an opportunity to state its objections, if any, by order in writing, remove the committee and appoint in its place, one administrator or an administrative committee consisting of not more than three individuals, one among them as convener, who need not be members of the society, to manage the affairs of the society for a period not exceeding six months."
(emphasis added) In view of the observation of the Division Bench the decision in Gireesh Kumar's case is distinguishable it is only appropriate to refer to Section 33 of the KCS Act. It provides for appointment of an administrator or administrative committee where the term of office of a committee has expired and a new committee has not been constituted, or where the existing committee resigns en bloc 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 and also for such grounds specifically mentioned thereunder. The point is that when a committee is removed and an administrator or an administrative committee is appointed invoking the power under Section 32 of the KCS Act and when for the reasons and situations given under Section 33 of the KCS Act, after complying with the procedures for its exercise, the situations are entirely different. When a WA No.876/2019 33 / 42 W.A.No.876 of 2019 30 committee is removed and an administrator or an administrative committee is appointed invoking the power under Section 32 of the KCS Act, certainly the process of supersession takes place as in such cases, the existing committee is removed and appointment of an administrator or an administrative committee it is in its place, takes place simultaneously. Under Section 33 of the KCS Act what is contemplated is not supersession of an existing committee whereas it is mere appointment of an administrator or an administrative committee to manage the affairs of the society, on account of occurrence of any of the contingencies contemplated thereunder resulting in cessation of the existing committee or loss of quorum for the meeting of the committee and on the consequent failure to constitute a new committee. Such an appointment can also be effected in view of circumstances contemplated under Section 33(1) (b) viz., when 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. In short, when a committee is superseded under Section 32 of the KCS Act, as a consequence, every member is liable to face the three fold disqualifications provided thereunder. However, appointment of an administrator or an administrative committee pursuant to the occurrence of circumstances contemplated under Section 33 it cannot have any consequence of disqualification on the democratically elected members. At any rate, on appointment of an administrator or an administrative committee WA No.876/2019 34 / 42 W.A.No.876 of 2019 31 pursuant to the occurrence of circumstances contemplated under Section 33 there is absolutely no scope for taking any action against the committee that ceased to be in office, in whose place an administrator or an administrative committee is appointed. May be en bloc resignation of the existing committee is for avoiding supersession and the authorities feel so, they will have to take to permissible steps legally and in accordance with law to ensure non- effectuation of resignation till action initiated under section 32 is completed. If the authorities under the Act accept the resignation, in the sense, fail to take steps for non-effectuation of en bloc resignation and appoint an administrator or administrative committee, thereafter there cannot be initiation or continuation of proceedings under section 32 of the KCS Act for supersession of the existing committee. It cannot be said that the democratically elected committee would still be available to be replaced as replacement had already taken place by the appointment of an administrator or an administrative committee. At any rate, a democratically elected committee and an administrator/an administrative committee cannot co-exist during the same period. Perhaps, the only exception where such a committee would become available to be superseded even after the appointment of an administrator or an administrative committee is a case where a committee is suspended and period is left for expiry of the term of the suspended committee, if there are just grounds for supersession. (See the decision in Hameed Kutty.M.S. & Ors v. Joint Registrar of Co-operative Societies (General) Ernakulam & WA No.876/2019 35 / 42 W.A.No.876 of 2019 32 others reported in 2018(3) KLT 149).
22. For the foregoing reasons, even a grant of permission to proceed with the proceedings initiated under Section 32 for limited purpose of notional consideration as to whether supersession of the committee was called for,as against a non-existing committee of a society could not achieve the avowed purpose of making such members to face the consequences of disqualifications of being a member of a superseded committee. Whatever be the finding with respect to the question as to whether supersession of the committee was called for or not, even if such proceedings are permitted to be continued, it could not and would not, result in actual supersession of the committee concerned and hence, any such attempt will be a futile exercise. When that be a situation in a given case, the consequences of disqualification of being a member of a superseded committee could not befall on any of the members of the committee concerned even in a case of where an en bloc resignation of the members of a committee occurred before actual culmination of the proceedings initiated under Section 32 when, consequently, if an administrator or an administrative committee was appointed for the reason that in such cases also the committee would become non-existent with the appointment of an administrator or an administrative committee. Certainly, the position would be different when, in such circumstances, resignation of members only brought the number of members of the committee below the quorum. In such cases also Section 33 provides WA No.876/2019 36 / 42 W.A.No.876 of 2019 33 the procedures for appointment of a new committee or administrator or administrative committee on failure to constitute a new committee. Hence, the remaining members have to continue, as a committee, but incapable to act or transact business without the necessary quorum and capable of only carrying on the day-to-day administration till the appointment of a new committee or administrator or administrative committee under Section 33 in accordance with the procedures therefor. As rightly held in Gireesh Kumar's case (supra) the KCS Act did not envisage a vacuum in the management of a Co-operative Society and therefore, either a Managing Committee should be there or an administrator/administrative committee should come in its place. Therefore, there could be no hiatus. Unless and until the Registrar acts in the manner provided under Section 33 the remaining members of the Committee did not cease to be members of that committee though they might not be in a position to act or transact business without the necessary quorum, except carrying on the day-to-day administration, it was further held in Gireesh Kumar's case (supra). We do not find any legal infirmity in the said interpretation of the legal position in view of Section 33 of the KCS Act.
23. Explanation II to clause (d) of sub-section (1) of Section 32 also assumes relevance in the context of the reference. It reads thus:
"Explanation II :- A notice and an order given as per this clause to the President, in his absence to the Vice President or any committee members who is holding charge of President or Vice President or to the Chief Executive of a society shall be treated as an order given to the committee of the society."WA No.876/2019 37 / 42 W.A.No.876 of 2019 34
After the cessation of the committee there can be no question of anyone accepting notice in the capacity of President or Vice president or any committee member holding charge of President or Vice President, as provided under Explanation II. In short, there will not be a committee to be served with notice in such circumstances. In Matsyafed's case it was directed to serve notice to the members of the committee individually. We have already noticed, what is to be adjudged under Section 32 is the liability of the Committee and not that of the members of the committee. The fact that it is the individual members who constitute the committee does not mean that serving notices to the individuals who were members of the committee, after the committee ceased to be in office, would amount to compliance with what is provided under Explanation- II. When notice is given to the committee in the manner provided under Explanation II while it is in power certainly there would be collective decision in regard to the manner in which decision is to be given. When individual notices are given to the members of the society who were members of the committee normally there will be a chance of making seemingly contradictory statements if not real contradictory statements. At any rate, they would be deprived of the chance for stating a proper objection in the absence of collective thinking. When what is to be adjudged under section 32 of the KCS Act is whether the existing committee is guilty of any or more of the grounds mentioned in Section 32 of the KCS Act the denial of opportunity to make an objection of the committee would cause prejudice. WA No.876/2019 38 / 42 W.A.No.876 of 2019 35 Giving opportunity to every member in that committee though appears to be proper and suffice it could not satisfy the legislative intention and purpose behind offering opportunity to the committee. In short, once the committee ceased to be in office issuance of notices to the individuals who were members of the committee would not and could not achieve the intended purpose of section 32(1) with regard to notice to the committee. In short, issuance of individual notices to the members of the committee cannot be a substitute for serving notice to the committee in the prescribed manner. It be so, after the cessation of the committee, for the purpose of continuation of the proceedings under Section 32 of the KCS Act, notice cannot be ordered to be served on members who were members of the committee to comply with the procedures regarding notice, envisaged under Section 32(1) as what was contemplated therein is notice to the committee and therefore, the modes provided under Explanation-II can be adopted only when the committee is in office.
24. The upshot of the discussion is that when a democratically elected Managing Committee of a society has ceased to be in office for any reason/ground whatsoever an answer to a question whether it was liable to be superseded or not under Section 32(1) of the KCS Act, would become inconsequential. At any rate, a situation of 'deemed supersession' or a case of 'notional supersession' of such a Committee cannot be created for the purpose of effectuating the consequences of being a member of a superseded committee. Now, the question is when continuation of the proceedings WA No.876/2019 39 / 42 W.A.No.876 of 2019 36 initiated under Section 32 of the KCS Act, is inconsequential inasmuch as, consideration pursuant to cessation of the existing committee, could not ultimately fetch the desired purpose of making the members of the committee liable to face the consequential trifold disqualifications whether the proceedings under section 32 of the KCS Act could be permitted to be continued ? So also, whether the Registrar/ Joint Registrar should be made to issue notices to persons who were members of the committee concerned, of the society to state objections and also make the consulting processes as required under Section 32 of the KCS Act and then to consider the question whether the supersession of the committee concerned was called for, in such circumstances ? Two maxims viz., 'Lex nil frustra facit', which means,_ 'the law will not itself attempt to do an act which would be in vain' and 'Lex neminem cogit ad vana seu inutilia peragenda' which means,_ ' the law will not force any one to do vain and useless things' and the decision of the Hon'ble Apex Court in The Executive Engineer, Southern Supply Company of Orissa Limited (SOUTHCO) v. M/s. Sri Seetharam Ricemill reported in (2012) 2 SCC 108, will fetch the answer for this question. The relevant portion of the said decision reads thus:-
" It is a settled principle that the Courts/Tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous-
Lex neminem cogit ad vana seu inutilia _ the law will not force any one to do a thing in vain and fruitless. In other words, if exercise of jurisdiction by the Tribunal ex facie appears to be an exercise of jurisdiction in futility for any one WA No.876/2019 40 / 42 W.A.No.876 of 2019 37 of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction."
25. When applying the aforesaid principles a decision in futile exercise of jurisdiction by Tribunals warrants interference, we have no hesitation to hold that this Court also will not and therefore, shall not exercise jurisdiction in futility and make anyone to do vain and fruitless things and should not do or enact which would be in vain. We, therefore, hold that when a democratically elected Managing Committee of a society is not in existence and thereby not available to be replaced and in its place an administrator or administrative committee is appointed, continuance of proceedings under Section 32 of the KCS Act to supersede the said non-existing committee for the purpose of considering whether the consequence of being a member of a superseded committee could be fastened on every member of the said committee, is nothing but a futile exercise. In the light of the discussions, conclusions and the aforesaid principles we answer the reference as hereunder:-
Matsyafed's case is no more good law to be followed as a precedent.
When the Managing Committee of a society is not actually existing the fact that proceedings initiated against it under Section 32 of the KCS Act for supersession, but could not be completed due to the expiry of the prescribed term of the Committee, is no ground to permit continuation of such proceedings for supersession against a non-existent committee even for the limited purpose of conducting it notionally and subject to its outcome, to WA No.876/2019 41 / 42 W.A.No.876 of 2019 38 impose consequential disqualifications under Section 32(1) (e) of the KCS Act.
Even in a case where on initiation proceedings for supersession an order of supersession was passed and an administrator or administrative committee was appointed, once the order of supersession is successfully challenged and in the meanwhile the prescribed term of the Managing Committee got elapsed, the proceedings for supersession under Section 32 of the KCS Act to remove the Committee would not survive thereafter and in other words it would get abated. In such circumstances, it will not be permissible to exercise the jurisdiction in futility to direct for continuation of such proceedings. If actions or omissions on the part of an existing committee call for its supersession it should be initiated in accordance with law and an inability to initiate or failure to initiate it, within the tenure of the committee in the prescribed manner is no ground to seek for exercise of jurisdiction in futility.
Even if proceedings were initiated and an order of supersession of the existing committee under section 32 of the KCS Act was passed upon interference with the order of supersession by the Court on any of the legally permissible ground, the fact that such interference was on technical ground is no ground or reason for granting liberty to proceed with such proceedings for supersession if the term of office of that committee had expired in the meanwhile. However, we make it clear that if the report on an inquiry under Section 65 or an inspection under Section 66 was the basis for initiation of proceedings under section 32, interference with the order of supersession by WA No.876/2019 42 / 42 W.A.No.876 of 2019 39 itself would not invalidate such a report. If it is capable of satisfying the ingredients for an action under Section 68 of the KCS Act it could be initiated and, needless to say that, in such eventuality it will have necessary consequences, subject to its outcome.
In view of the nature of the reference and taking into account the fact that challenge against impugned judgment and Ext.P8 order is a matter for the Division Bench to consider, after answering the reference as aforesaid, we remit the matter to the Division Bench for appropriate disposal of the captioned appeal.
Sd/-
C.T.RAVIKUMAR Judge Sd/-
SHIRCY.V. Judge Sd/-
K.HARIPAL
Judge
TKS
02-07-2021 /True Copy/ Assistant Registrar