Chandran Pillai v. Joint Registrar of Co-operative Societies (General), Kollam, et al.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941** **WA.No.1369 of 2019** **AGAINST THE JUDGMENT IN WP(C) 35100/2018 of HIGH COURT** ## **APPELLANT/PETITIONER:** **CHANDRAN PILLAI, AGED 64 YEARS S/O.NARAYANA PILLAI, LEKSHMI NIVAS, VETTILATHAZHAM, DECENT JUNCTION P.O., KOLLAM DISTRICT, PIN - 691 577.** **BY ADVS. SRI.JAIBY PAUL SRI.ARJUN RAGHAVAN** ## **RESPONDENTS/RESPONDENTS:** - **1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), KOLLAM, KOLLAM DISTRICT, PIN - 691 001.** - **2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM, KOLLAM DISTRICT, PIN - 691 001.** **3 THE UNIT INSPECTOR, CHATHANNOOR UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM, KOLLAM DISTRICT, PIN - 691 001.** **4 THE DECENT JUNCTION SERVICE CO-OPERATIVE BANK LTD.NO.Q 133,** **REPRESENTED BY ITS SECRETARY, DECENT JUNCTION P.O., KOLLAM DISTRICT, PIN- 691 577.** **WA. No.1369 of 2019** **2** - **5 ABDUL JALEEL, NALUTHNDIL VEEDU, MYLAPOOR, UMAYANALLUR, KOLLAM DISTRICT - 691 589.** - **6 G.GOPALAKRISHNA PILLAI, KUDAVOOR THEKKATHIL, CHENDAPOOR, DECENT JUNCTION, KOLLAM DISTRICT - 691 577.** - **7 BAHULEYAN K., LAKSHMI VILASOM, VETTILATHAZHAM, DECENT JUNCTION, KOLLAM DISTRICT - 691 589.** - **8 BIJU,** - **PARVATHI MANDIRM, VETTILATHAZHAM, DECENT JUNCTION, KOLLAM DISTRICT - 691 589.** - **9 R.MOHANAN PILLAI, MANIKANTAVILASOM, PERAYAM, UMAYANELLOOR, KOLLAM DISTRICT - 691 589.** - **10 RAJENDRAN ACHARI K.R., SREERAM MANDIRAM, CHENDAPOOR, DECENT JUNCTION, KOLLAM DISTRICT - 691 577.** - **11 MAJIDHA BEEVI, MELEVILAVEEDU, MYLAPOOR, UMAYANALLUR, KOLLAM DISTRICT - 691 589.** - **12 RADHAMMA J., EDAYADIVILA KIZHAKKATHIL VEEDU, VETTILATHAZHAM, DECENT JUNCTION, KOLLAM DISTRICT - 691 577.** - **13 SINI S.K., PUTHENVILA VEEDU, DECENT JUNCTION, KOLLAM DISTRICT - 691 577.** - **14 SATHYASEELAN,** - **PUTHEN VEEDU, PUTHUCHIRA, UMAYANALLUR, KOLLAM DISTRICT - 691 589.** **BY GOVT. PLEADER SMT. K.R. DEEPA** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **WA. No.1369 of 2019** **3** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _Dated this the 21[st] day of June, 2019_ ## _**Ravikumar, J.**_ This appeal carries challenge against judgment dated 15.03.2019 in W.P.(C) No.35100/2018. The unsuccessful petitioner is the appellant herein. He moved the said writ petition seeking the following reliefs:- _“(i) to issue a writ of certiorari calling for the records leading to the issuance of Exts.P7 and P8 and quash the same._ _(ii) to declare that no confidence motion cannot be moved against the President of a co-operative society within 2 years of assumption of office.”_ **WA. No.1369 of 2019** **4** The party respondents filed a joint counter affidavit. The learned Single Judge, after considering the rival contentions and after going through the judgment of the Apex Court in _**Vipulbhai M. Chaudhary v. Gujarat Co-operative Milk Marketing Federation Limited and others** [(2015) 8 SCC 1],_ passed the impugned judgment whereby and whereunder the writ petition was dismissed. Paradoxically both sides relied on the aforesaid judgment to establish their conflicting stand. The contention of the appellant is that the Apex Court declared that in the case of Co-operative Societies registered under a Central or State law, a motion of no confidence against the office bearer shall be moved only after two years of his assumption of office. The party respondents as also the official respondent contended that such an exposition of law was made by the Apex Court only in cases where there is no express provision in the relevant Act or Rule or in the bye-laws of the society concerned. They also referred to Rule 43A(xii) of the Kerala Co-operative Societies Rules ('KCS Rules', for short) to contend that the statute has **WA. No.1369 of 2019** **5** expressly provided a time limit and hence, the dictum laid down by the Apex Court in _**Vipulbhai**_ ( _supra_ ) is inapplicable in this case. That apart, it is contended by them that though Rule 43A(xii) has expressly provided a period, the petitioner had not challenged the said provision. It is appreciating the said rival contentions raised that the impugned judgment was passed. 2. We have heard the learned counsel for the appellant, learned counsel appearing for the party respondents except the 7[th] respondent as also the learned Senior Government Pleader. 3. A perusal of the impugned judgment would reveal that based on the pleadings, the learned Single Judge formulated the following point for consideration:- _“Can the office bearer of the Managing Committee of a Co-operative Society governed by the KCS Act and its Rules be removed through a no-confidence motion before the expiry of two years after such office bearer had assumed office?”_ **WA. No.1369 of 2019** **6** 4. A brief reference to the facts which led to the formulation of the aforesaid question is essential for a proper disposal of this case. The 4[th] respondent - Society in which the appellant was the President, is a Primary Agricultural Credit Society registered under the provisions of the KCS Act. On being elected, the appellant and the other members of the Managing Committee assumed charge on 20.12.2017. After completion of six months since the assumption of office by the Managing Committee, a no-confidence motion was moved against the President. Ultimately, the appellant was unseated. It is assailing the same that he filed this writ petition mounting challenge against the said action on the ground that no-confidence motion could not have been brought against him for a period of two years since assumption of office, in view of the judgment of the Apex Court in _**Vipulbhai**_ ( _supra_ ). As stated earlier, in resistance of the contentions of the appellant, the party respondents as also the official respondents contended that the said contention of the appellant could not be sustained in view of **WA. No.1369 of 2019** **7** the decision of the Apex Court in _**Vipulbhai**_ ( _supra_ ) itself. 5. In the light of the aforesaid conflicting contentions, it is only appropriate to refer the decision of the Apex Court in _**Vipulbhai**_ ( _supra_ ). The Apex Court took note of the fact that the co-operative movement in India started in the beginning of the 20[th] century and the co-operative societies have been conferred a constitutional statute by the 97[th] amendment of the constitution. The Apex Court was considering the byelaws of the Gujarat Co-operative Milk Marketing Federation Limited in the context of a no-confidence motion successfully carried against its President. Admittedly, in the bye-laws of the said Federation registered under the Gujarat Co-operative Societies Act, 1961, there was no express provision with respect to the period within which a noconfidence motion could be moved against an office bearer from the date of assumption of office. In that context, it is also relevant to note that no specific provision was provided under the Gujarat Co-operative Societies Act for the removal of the Chairperson by no confidence. Bye-law 18.2 was the **WA. No.1369 of 2019** **8** only enabling provision having some bearing on the question and it is provided therein that in case the office of the Chairperson fell vacant before the expiry of his term for any reason, the Board should elect a new Chairperson for the remaining term. The Apex Court held :- _“A right to elect is not a fundamental right nor a common law right; it is a statutory right, and any question relating to election has to be resolved within the four corners of the Act.”_ After holding thus, the Apex Court held that when the constitution is eloquent, laws made thereunder could not be silent. Further more, the Apex Court held that if the statute is silent or imprecise on the requirements under the constitution, it is for the court to read the constitutional mandate into the provisions concerned and declare it accordingly. The Apex Court also held that going by the conventional view, the Legislature alone could make law. But, at the same time, the courts are inescapably possessed of some degree of legislative power. In the light of the **WA. No.1369 of 2019** **9** principle of _casus omissus_ , there can be no doubt with respect to the position that in case of and respect of a lacuna in a particular statute and if proper working out of the provisions under that statute is not possible without filling up that lacuna, essentially, courts have to step in to fill up the said lacuna. But, at the same time, the question is when a statute specifically provides or incorporates provisions on a particular subject and when there is absolutely no challenge against that specific provision, whether the court should make an endevour to nullify that specific provision thereunder or to make it redundant or nugatory? We posed such a question in view of the specific provision on the subject of no-confidence motion under the KCS Act, more specifically under Rule 43A(xii) of the KCS Rules and also in view of the admitted position that in spite of existence of such a provision, the petitioner has not chosen to challenge the same. With this prelude, we will now consider the question whether in the absence of a challenge against 43A(xii) of the KCS Act, the petitioner can succeed in his challenge against **WA. No.1369 of 2019** **10** its unsettling based on a successful no-confidence motion solely relying on the decision of the Apex Court in _**Vipulbhai**_ ( _supra_ ). 6. We will now advert to the rival contentions and appreciate them based on the aforesaid decision and also the aforesaid provisions in the KCS Act. As noticed hereinbefore, the learned counsel for the petitioner relied on paragraph 52.2 to buttress its contention that no no-confidence motion can be moved against an office bearer of a Co-operative Society registered under any Central or State law within a period of two years of his assumption of office. The party respondents as also the official respondents drew our attention to paragraphs 24 and 51 of the same decision to contend that the aforesaid contention of the petitioner is absolutely untenable and it was rightly repelled by the learned Single Judge. In paragraph 52.2 of _**Vipulbhai**_ ( _supra_ ), the Apex Court held as follows:- _“Having regard to the set-up in local selfgovernments prevailing in many of the States_ **WA. No.1369 of 2019** **11** _as above, we direct that in the case of cooperative societies registered under any Central or State law, a motion of no-confidence against an office-bearer shall be moved only after two years of his assumption of office.”_ ## 7. We may now refer to paragraphs 24 and 51 of _**Vipulbhai**_ ( _supra_ ). They read thus:- _“24. No doubt, in the cases referred to above, the respective Acts contained a provision regarding no confidence. What about a situation where there is no express provision regarding no confidence? Once the co-operative society is conferred a constitutional status, it should rise to the constitutional aspirations as a democratic institution. So, it is for the respective legislative bodies to ensure that there is democratic functioning. When the Constitution is eloquent, the laws made thereunder cannot be silent. If the statute is silent or imprecise on the requirements under the Constitution, it is for the court to read the constitutional mandate into the provisions concerned and declare it accordingly. Article 243ZT has given a period of one year to frame/reframe the statutes in_ **WA. No.1369 of 2019** **12** _consonance with Part IXB and thereafter, i.e., with effect from 12.01.2013, those provisions which are inconsistent with Part IXB, cease to operate.”_ _51. The cooperative society registered under the Central or the State Act is bound to function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or bye-laws both on the principle and procedure. If not, it is for the court to read the democratic principles into the Act or Rules or bye-laws. If a procedure is prescribed in any Act or Rule or bye-law regarding election of an office-bearer by the board, as defined under Article 243-ZH(b) of the Constitution of India, and for removal thereof, by way of a motion of no-confidence, the same procedure has to be followed. In case there is no express provision under the Act or Rules or bye-laws for removal of an office-bearer, such office-bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office.”_ **WA. No.1369 of 2019** **13** 8. In the contextual situation, we are also of the view that it is only befitting to refer to paragraph 52 of the decision in _**Vipulbhai**_ ( _supra_ ) and it reads thus:- _“Now that this Court has declared the law regarding the democratic set-up of a cooperative society and that it is permissible to remove an elected office-bearer through motion of no-confidence, and since in many States, the relevant statutes have not carried out the required statutory changes in terms of the constitutional mandate, we feel it just and necessary to lay down certain guidelines. However, we make it clear that these guidelines are open to be appropriately modified and given statutory shape by the competent legislature/authority:”_ 9. As stated earlier in paragraph 24, the Apex Court took note of the fact that in certain cases with respect to no-confidence motion, respective Acts contained a provision. After taking note of the said fact, the Apex Court posed a question as to what would be the situation where there is no **WA. No.1369 of 2019** **14** express provision regarding no-confidence. The Apex Court thereafter referred to Article 243-ZT of the Constitution which provided a period of one year to frame/reframe statutes in consonance with Part IX-B. It also provided further that with effect from 12.01.2013 those provisions which are inconsistent with Part IX-B would cease to operate. It is to be noted that the Apex Court made such an observation, after taking note of the fact that on the aforesaid subject the Constitution is eloquent as it provides the procedures for moving no-confidence motion. When that be so, no statute could be silent or imprecise on such requirement. This is because if a body is having the right to elect a person as its office bearer, then, if the electorate lost confidence in the person, it must have the right to expel the said person by moving no-confidence. In this context, at the risk of repetition, we would refer to paragraph 51 of the said decision. Going by the same, if a procedure is prescribed in any Act or Rule or bye-law regarding election of an office bearer of a Co-operative Society by the Board, as defined **WA. No.1369 of 2019** **15** under Article 243-ZH(b) of the Constitution of India for his removal from office, by way of a motion of no-confidence, the said procedure shall be followed. In case there is no express provision under the Act or Rules or bye-laws for removal of an office bearer, such office bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to the office concerned. In other words, if a person was elected to an office in the event of loss of confidence, a right should be read to exist with the electorate to vote him out. We have carefully scanned the judgment in _**Vipulbhai**_ ( _supra_ ) by bestowing more attention to paragraphs 24, 51, 52, 52.1, 52.2. On such consideration, we do not find any reason to disagree with the finding of the learned Single Judge that the guidelines were laid down by the Apex Court and virtually taking into account the same and also the constitutional obligation in respect of the Co-operative Societies registered in the State of Kerala, the State had brought in appropriate provision, on the aforesaid subject in the KCS Act. Evidently, liberty was **WA. No.1369 of 2019** **16** granted by the Apex Court in the very same judgment, as can be discernible from paragraph 52 itself. There, the Apex Court held thus:- _"However, we make it clear that these guidelines are open to be appropriately modified and given statutory shape by the competent legislature/authority."_ 10. As regards the State of Kerala, for the aforesaid purpose, specific procedures have been prescribed under Rule 43A(xii) of the KCS Rules and it provides the procedures for moving 'no-confidence' motion. Rule 43A(xii) reads as hereunder:- _“No notice of motion under this rule shall be allowed within six months from the date of assumption of office by the President or the Vice President or the Treasurer or any officer of the committee.”_ 11. In view of the aforesaid position obtained from the judgment in _**Vipulbhai**_ ( _supra_ ) and in view of the existence of **WA. No.1369 of 2019** **17** Rule 43A(xii) of the KCS Rules, we do not find any reason to hold that the learned Single Judge had committed an error in upholding the contentions of the party respondents as also the official respondents that the decision in _**Vipulbhai**_ ( _supra_ ) that no-confidence motion could not be moved or should not be moved within two years since the assumption of office, is applicable either in a case where the relevant laws of the State concerned or the bye-laws of the Society concerned do not contain a specific provision with respect to the right to move and no period within which a no-confidence motion could be moved against an office bearer since the date of assumption of his office, is provided. We have also taken note of the fact that in the KCS Act, there is a specific provision in Rule 43A(xii). In view of the decision of the Apex Court in _**Vipulbhai**_ ( _supra_ ), it cannot be said that especially in view of absence of any challenge against the said provision that the said provision regulating no-confidence motion is illegal or ultravires the Act and Rules. The upshot of the discussion is that this writ appeal lacks merits and it is **WA. No.1369 of 2019** **18** liable to be dismissed. In the result, this appeal is dismissed. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks/28.06.2019