Kerala High Court · 2012

WP(C).No. 19531 of 2011 (N) ---------------------------RESPONDENTS:--------------1. STATE CO-OPERATIVE ELECTION COMMISSION, REP. BY ITS SECRETARY, THIRUVANANTHAPURAM.2. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), O/O.ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, KALPETTA, WAYANAD.3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL). O/O.JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KALPETTA, WAYANAD.4. REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.5. GOVT.OF KERALA, REP. BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF CO-OPERATION, GOVT.SECRETARIAT, THIRUVANANTHAPURAM.ADDL.R6 TO R8 IMPLEADED-----------------------6. ADDL.R6- O.V.APPACHAN, ORAVANAM THADATHIL VEEDU, PALLIKKUNNU PO., WAYANAD DISTRICT.7. ADDL.R7- P.P.ALI, PARAPPURAM VEEDU, ERANIKUNNU, KALPATTA PO., WAYANAD DISTRICT.8. ADDL.R8- K.D.THOMAS, KANIYODIKKAL VEEDU, SASIMALA PO., PULPALLI, WAYANAD DISTRICT. (ADDL.R6 TO R8 ARE IMPLEADED AS PER ORDER DATED 03.11.2011 IN IA.17242/2011)R1 TO R5 BY SPECIAL GOVERNMENT PLEADER SRI. D.SOMASUNDRAM ADDL.R6 TO R8 BY ADV. SRI.P.N.MOHANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARDON 13-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:VK WP(C).No. 19531 of 2011 (N) ---------------------------APPENDIX--------PETITIONER'S EXHIITS--------------------EXT.P1. COPY OF THE PROCEEDINGS NO.C.S. (2) 68437/2010 DATED 30.12.2010OF THE 4TH RESPONDENT. EXT.P2. COPY OF THE NOTICE DATED 17.05.2011 OF THE MANAGING COMMITTEEMEETING. EXT.P3. COPY OF THE PROCEEDINGS NO.S(2)20717/2011 DATED 25.05.2011 OFTHE 4TH RESPONDENT WITHDRAWNG THE GOVERNMENT NOMINEES. EXT.P4. COPY OF THE COMPLAINT FILED BY MR.K.R.BASKARAN BEFORE THE S.I.OF POLICE, KALPETTA. EXT.P5. COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MANAGINGCOMMITTEE MEETING HELD ON 26.05.2011. ET.P6. COPY OF THE MINUTES OF THE MANAGING COMMITTEE MEETING HELD ON08.06.2011 RECOMMENDING TO CONDUCT ELECITION. EXT.P7. COPY OF RELEVANT CLAUSES OF THE BYELAW THE 6TH PETITIONERSOCIETY. EXT.P8. COPY OF THE COMMUNICATION DATED 11.07.2011 ISSUED BY THE 3RDRESPONDENT. RESPONDENT'S EXHIBITS : ----------------------EXT.R6 (A). COPY OF THE COMMUNICATION DATED 18.6.2011 EXT.R6(B). COPY OF THE JUDGMENT DATED 10.8.09 IN WPC NO.21904/09. EXT.R6 (C). COPY OF THE ORDER DATED 25.7.2011. / TRUE COPY /P.A. TO JUDGEVK P.N.RAVINDRAN,J. -----------------------------------W.P.(C) No.19531 of 2011 --------------------------------------Dated this the 13th day of March, 2012 JUDGMENTPetitioners 1 to 5 are members of the sixth petitioner co-operative society. Election to the Managing Committee of thesixth petitioner society was held on 27.6.2010. As per the bye-laws of the sixth petitioner society, the Managing Committeeconsists of nine elected members and two members nominatedby the Government. With the amendment to section 31 of theKerala Co-operative Societies Act, 1969 with effect from25.8.1987, the Government acquired the right to nominate threemembers or such number of members not exceeding one-third ofthe total number of members of the committee of every apex orcentral society, whichever is less, to be nominated to bemembers of the committee of an apex society or a centralsociety. Therefore, the Government had the right under section31 of the Kerala Co-operative Societies Act, 1969 to nominatethree members to the Managing Committee of the sixth petitionersociety. W.P.(C) No.19531 of 200722.Though elections were held on 27.6.2010, theGovernment nominated three members to the ManagingCommittee of the society only when Ext.P1 order was issued on30.12.2010. Therefore, the new Managing Committee could takecharge only on 31.12.2010. The Managing Committee of thesixth petitioner society that took charge on 31.12.2010 consistedof nine elected members and three persons nominated by theRegistrar of Co-operative Societies, the authority specified by theGovernment under section 31 of the Act.The term of theManaging Committee of the sixth respondent society that tookcharge on 31.12.2010 will come to an end only on 30.12.2015.3.After the new Managing Committee assumed office on31.12.2010, Sri.V.P.Sankaran Nambiar, the nominee of theGovernment, was elected as the President and yet anothernominee of the Government namely Sri.K.Sasankan was electedas the Vice- president and the third nominee of the GovernmentSri. N.M.Antony was elected as the nominee to the Kerala StateCo-operative Consumer Federation. While matters stood thus,the Registrar of Co-operative Societies withdrew the nominationof the said three members by issuing Ext.P3 proceedings dated W.P.(C) No.19531 of 2007325.5.2011. Later, additional respondents 6 to 8 were nominatedas Government nominees by Ext.R6(a) order dated 18.6.2011.In the meanwhile a meeting of the Managing Committee of thesixth petitioner society was held on 26.5.2011. Ext.P2 is thenotice of the Managing Committee meeting held on 26.5.2011. 4.With the withdrawal of the nomination of the threepersons named in Ext.P1, the President, Vice President and thenominee of the sixth petitioner society to the Kerala State Co-operative Consumer Federation ceased to be members of theManaging Committee of the sixth petitioner society. When theManaging Committee met on 26.5.2011, there was no Presidentor Vice president for the sixth petitioner society. Therefore,though election of the President and Vice-president was not anitem in the agenda, five members of the Managing Committee(petitioners 1 to 5) that met on 26.5.2011 resolved to elect thefirst petitioner as the President and the second petitioner as theVice President of the sixth petitioner society. The third petitionerwas elected as the nominee to the Kerala State Co-operativeConsumer Federation. Later, additional respondents 6 to 8 whowere nominated as members of the Managing Committee by W.P.(C) No.19531 of 20074Ext.R6(a) order dated 18.6.2011, raised an objection regardingthe election of office bearers held on 26.5.2011. Thereupon, theJoint Registrar of Co-operative Societies issued Ext.P8 noticedated 11.7.2011 informing the first petitioner that a complainthas been received to the effect that the election of the Presidentand Vice- president on 26.5.2011 is not in accordance with lawand that an enquiry into the said complaint will be held at 2.30pm on 27.7.2011 in the office of the Joint Registrar of Co-operative Societies (General), Wayanad. By that notice, JointRegistrar of Co-operative Societies (General), Wayanad calledupon the first petitioner to be present in person for the hearing.The instant writ petition was thereupon filed on 18.7.2011challenging Ext.P8 notice and seeking the following reliefs:"i.issue a writ of certiorari quashing Exhibit-P8;ii.declare that the election of petitioners 1 to 3 aspresident, Vice president and nominee to Kerala StateCo-operative Consumer Federation respectively are validand legal;iii.issue a writ of mandamus or any other writ, orderor direction commanding the 2nd respondent to registerthe amendment to the byelaw of the 6th petitioner societyas amended by the general body on 25.4.2011;iv. issue a writ of mandamus or any other writ, order W.P.(C) No.19531 of 20075or direction commanding the 3rd respondent to forwardExt.P6 resolution to 1st respondent for the conduct offresh election to the managing committee of the 6thpetitioner society;v.issue a writ of mandamus or any other writ, orderor direction commanding the 1st respondent to conductfresh election to the managing committee of the 6thpetitioner society as resolved in Ext.P6;vi.issue a writ of prohibition or any other writ, orderor direction restraining the respondents from toppling thepresent managing committee and appointingadministrator in the 6th petitioner society;"5.The Managing Committee that met on 26.5.2011 hadalso resolved to hold a fresh election to the Managing Committeethough its term will come to an end only in the year 2015 andalso resolved to request the State Co-operative ElectionCommission to appoint an Electoral Officer and a ReturningOfficer for the purpose. The general body of the sixth petitionersociety that met on 25.4.2011 had resolved to amend the byelaws of the sixth petitioner society to increase the number ofwomen members from 1 to 3 and also resolved to request theState Co-operative Election Commission to hold a fresh election.It is in the background of these facts the petitioners have prayedfor reliefs 3 to 5. W.P.(C) No.19531 of 20076 6.The main contention raised by the petitioners is thatas the nomination of three Government nominees stoodwithdrawn on 25.5.2011 when Ext.P3 order was passed, themeeting held on 26.5.2011 in which five members (petitioners 1to 5) were present had the required quorum and therefore, thereis no merit in the statement in Ext.P8 notice that the meetingheld on 26.5.2011 and the election of the President and the VicePresident are not in order. The third respondent has filed acounter affidavit dated 17.11.2011 wherein it is contended thatthe meeting held on 26.5.2011 had no quorum, that the quorumfor a meeting of the Board of Directors is 7 and not 5, in view ofthe stipulation in sub-section (5) of section 28 of the Kerala Co-operative Societies Act, 1969 and therefore, the meeting held on26.5.2011 in which new office bearers were elected, is not inorder. As regards the amendment to the bye-laws, it iscontended that objections have been raised by members to theGeneral body meeting held on 25.4.2011, that the said complaintis being enquired into and that further action regarding theregistration of the amendment to the byelaws will be taken aftercompletion of the enquiry and after hearing all the parties. W.P.(C) No.19531 of 20077Relying on the stipulation in section 28(5) of the Act it iscontended that the quorum for a meeting of the ManagingCommittee of the sixth petitioner society which consists of nineelected members and three nominated members, is seven andtherefore, the meeting held on 26.5.2011 did not have therequired quorum. The petitioner has filed a reply affidavit dated19.12.2011 contending that as on the date of the meetingnamely 26.5.2011, the Government nominees were not membersof the Managing Committee and as more than 50% of theremaining members had participated in the meeting, there wasthe required quorum.7.I heard Smt.Anu Sivaraman, learned counselappearing for the petitioners, Sri.D.Somasundaram, learnedSpecial Government Pleader appearing for respondents 2 to 5and Sri.P.N.Mohanan, learned counsel appearing for additionalrespondents 6 to 8. I have also gone through the pleadings andthe materials on record. The two questions that arise forconsideration in this writ petition is whether the meeting held on26.5.2011 had the required quorum and whether even assumingthat the meeting had the required quorum, the election of the W.P.(C) No.19531 of 20078President was in accordance with the provisions contained in rule40 of the Kerala Co-operative Societies Rules. A reading ofExt.P5 minutes discloses that the first petitioner herein who waselected as the President of the sixth petitioner society in themeeting held on 26.5.2011 himself presided over the meeting.Resolution No.2 adopted by the members of the ManagingCommittee that met on 26.5.2011 evidences the fact that themembers present had unanimously elected the first petitioner topreside over the meeting. It was thereafter that his name wasproposed as the President and he was elected as the President.Sub-rule (3) of rule 43 of the Kerala Co-operative Societies Ruleswhich governs election of the President, Vice President, Treasureror any other office bearer of the society stipulates that themeeting shall be presided over by any member who is not acandidate for the election, chosen by the Committee for thepurpose. In the instant case, the first petitioner presided overthe meeting held on 26.5.2011 in which he was himself electedas the President of the society. The very election of the officebearers was in the meeting held on 26.5.2011, was therefore, notin order. If that be so, I am of the opinion that this Court need W.P.(C) No.19531 of 20079not consider the question whether the meeting held on 26.5.2011had the required quorum. That apart, two weeks after themeeting held on 26.5.2011, the vacancy that was caused onaccount of Ext.P3 order was filled when respondents 6 to 8 werenominated as Government nominees by Ext.R6(a) order dated18.6.2011. As on today the Managing Committee of the sixthpetitioner society consists of eleven members excluding amember who died even before the writ petition was filed. In such circumstances, as the Managing Committee of thesixth petitioner society now consists of eleven members (eightelected and three nominated), I am of the opinion that ends ofjustice will be met if the Managing Committee is directed to takefresh steps to elect the President and Vice President and thenominee to the Kerala State Co-operative Consumer Federation.In such circumstances, I am also of the opinion that it is notnecessary for the Joint Registrar of Co-operative Societies tofinally dispose of the complaint filed by the other members of theManaging Committee and the nominated members. The issueregarding the amendment to the bye-laws is a matter in respectof which the Joint Registrar of Co-operative Societies will have to W.P.(C) No.19531 of 200710take a decision in the first instance. Even if the Joint Registrar ofCo-operative Societies were to register the amendments to thebye-laws as approved by the general body in the meeting held on25.4.2011, the question whether the elections have to be held asresolved by the general body cannot be examined by the JointRegistrar of Co-operative Societies for the reason that on theterms of the provisions contained in the Act and the Rules it is forthe Managing Committee of the society to adopt a resolution inthat regard. Since the meeting held on 26.5.2011 was not inorder for the reason that the person who was elected as thePresident himself presided over the meeting. It was with him inthe chair that a decision was taken to hold fresh elections longbefore the expiry of the term. No directions regarding theholding of the election prior to the expiry of the term of theManaging Committee now in office can therefore be granted. I accordingly dispose of the writ petition with a direction tothe Managing Committee of the sixth petitioner society to hold afresh meeting with proper notice to all the members of theManaging Committee (eight elected and three nominated) and toelect a new set of office bearers in accordance with the procedure W.P.(C) No.19531 of 200711prescribed in rule 43 of the Kerala Co-operative Societies Rules.Needful in the matter shall be done and a fresh set of officebearers and the nominee to the Kerala State Co-operativeConsumer Federation, elected within two weeks from the date ofreceipt of a certified copy of this judgment. The Joint Registrar ofCo-operative Societies shall also take an appropriate decisionregarding the registration of the amendments to the bye-lawsapproved general body at its meeting held on 25.4.2011 within aperiod of two months from the date of receipt of a certified copyof this judgment. Sd/-P.N.RAVINDRAN JUDGE/TRUE COPY/P.A. To JUDGEvpv