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

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM CR** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY ,THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940** ## **WP(C).No. 35100 of 2018** ## **PETITIONER/S:** **CHANDRAN PILLAI AGED 63 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** ## **RESPONDENT/S:** - **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-691001.** - **3 THE UNIT INSPECTOR CHATHANNOOR UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), KOLLAM, KOLLAM DISTRICT, PIN-691001.** - **4 THE DECENT JUNCTION SERVICE CO-OPERTIVE BANK LTD.NO.Q 133, REPRESENTED BY ITS SECRETARY, DECENT JUNCTION.P.O, KOLLAM DISTRICT, PIN-691577.** - **5 ADDL.R5. ABDUL JALEEL, NALUTHNDIL VEEDU, MYLAPOOR, UMAYANALLUR, KOLLAM DISTRICT-691 589.** - **6 ADDL.R6. G.GOPALAKRISHNA PILLAI,** - **KUDAVOOR THEKKATHIL, CHENDAPOOR, DECENT JUNCTION, KOLLAM DISTRICT-691 577.** - **7 ADDL.R7. BAHULEYAN.K.,** WP(C).No. 35100 of 2018 2 **LAKSHMI VILASOM, VETTILATHAZHAM, DECENT JUNCTION, KOLLAM DISTRICT-691 589.** - **8 ADDL.R8. BIJU,** - **PARVATHI MANDIRAM, VETTILATHAZHAM, DECENT JUNCTION, KOLLAM DISTRICT-691 589.** - **9 ADDL.R9. R.MOHANAN PILLAI, MANIKANTAVILASOM, PERAYAM, UMAYANELLOOR, KOLLAM DISTRICT-691 589.** - **10 ADDL.R10. RAJENDRAN ACHARI.K.R., SREERAMA MANDIRAM, CHENDAPOOR, DECENT JUNCTION, KOLLAM DISTRICT-691 577.** - **11 ADDL.R11. MAJIDHA BEEVI, MELEVILAVEEDU, MYLAPOOR, UMAYANALLUR, KOLLAM DISTRICT-691 589.** - **12 ADDL.R12. RADHAMMA J., EDAYADIVILA KIZHAKKATHIL VEEDU, VETTILATHAZHAM, DECENT JUNCTION, KOLLAM DISTRICT-691 577.** - **13 ADDL.R13. SINI.S.K., PUTHENVILA VEEDU, DECENT JUNCTION, KOLLAM DISTRICT691 577.** - **14 ADDL.R14. SATHYASEELAN, PUTHEN VEEDU, PUTHUCHIRA, UMAYANALLUR, KOLLAM DISTRICT-691 589. (ADDITIONAL RESPONDENTS R5 TO R14 ARE IMPLEADED AS PER ORDER DATED 07.11.2018 IN I.A. NO.1/2018.** **BY ADVS. SRI.D.SOMASUNDARAM SRI.PRASAD CHANDRAN SRI.S.SREEKUMAR (SR.) SHRI.ELDHO CHERIAN SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.R.GITHESH SRI.THOMAS P.KURUVILLA** **SMT.C.S.SHEEJA-SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 35100 of 2018 3 ## **JUDGMENT** ## **C R** This writ petition proffers a very interesting question: can the office bearer of the Managing Committee of a Co-Operative Society, governed by the Kerala Co-operative Societies Act and its Rules, be removed through a No-Confidence motion before the expiry of two years after such office bearer had assumed office? 2. The petitioner, relying on a judgment of the Hon'ble Supreme Court, to which I will refer presently, predicates that it cannot be done; while the respondents assert other wise, drawing strength from the applicable statutory prescriptions. 3. I will deal with the evidently inconsonant contentions of the parties after recording the essential facts, gathered from the pleadings on record. 4. The petitioner says that he was elected to the Board of Directors of the 4[th] respondent Society, which is a Primary Agricultural Credit Society registered under the provisions of the Kerala Cooperative Societies Act, 1969 ('KCS Act' for short) and that he and the new Managing Committee took charge on 20.12.2017. He says that the elections to the Managing Committee was conducted on the basis of WP(C).No. 35100 of 2018 4 directions from this Court in another writ petition, namely, W.P.(C).No.24376/2017 and that the term of the Managing Committee is for a period of five years. 5. The petitioner's specific allegation in this case is that while so, just after he had completed six months in office as the President, notices for a No Confidence motion against him were brought in by certain members of the Board of Directors, copies of which have been produced on record as Exts.P7 and P8; and he contends that these notices are illegal in law, since a motion of no-confidence could not have been brought against him for a period of two years after had assumed office, relying on the judgment of the Hon'ble Supreme Court in _**Vipulbhai.M. Chaudhary v. Gujarat Co-operative Milk Marketing Federation Ltd [ 2015 8 SCC (1)].**_ The petitioner thus prays that the impugned notices be quashed and the proposed motion of noconfidence against him be interdicted. 6. I have heard Sri.T.R.Harikumar, the learned counsel for the petitioner; Sri.S.Sreekumar, learned Senior Counsel, assisted by Sri. Martin Jose, learned counsel appearing for respondents 5 to 10 and 12 to 14; Smt.C.S.Sheeja, learned Senior Government Pleader appearing for respondents 1, 2 and 4; Sri.Prasad Chandran, learned counsel WP(C).No. 35100 of 2018 5 appearing for 3[rd] respondent and Sri.D.Somasundaran, learned counsel appearing for 11[th] respondent. 7. The primary assertion of law of the petitioner, as voiced through his learned counsel Sri.T.R.Harikumar, is that going by the judgment of the Hon'ble Supreme Court in _**Vipulbhai.M. Chaudhary (supra)**_ , no office bearer of a Society can be removed through a motion of no confidence except after he/she has completed two years in office. The learned counsel says, pointing to paragraph 52.2 of the said judgment, that the Hon'ble Supreme Court has declared it unequivocally that in the case of Co-Operative Societies registered under any Central or State law, a motion of no-confidence against an office-bearer can be moved only after two years of his assumption of office. Sri.T.R.Harikumar, therefore, says that since his client assumed office only on 20.12.2017, a no-confidence motion could have been brought against him only after 20.12.2019; and consequentially contends that Exts.P7 and P8 notices are illegal and unlawful, thus rendering all action pursuant thereto also unconstitutional. 8. After contending as afore, Sri.T.R.Harikumar, however, admits that this Court has permitted the Managing Committee to consider this motion, making it clear through the interim order, dated 15.11.2018, WP(C).No. 35100 of 2018 6 that the result of such motion will be subject to the final judgment in this writ petition. He further concedes that in the meeting of the Managing Committee, held on 03.11.2018, this motion was carried and that the petitioner was thus declared to have been removed from the office of the President. 9. In response to the afore submissions of Sri.T.R.Harikumar, Sri.S.Sreekumar, learned Senior Counsel for the Society, submits that the petitioner has misread the exposition of law by the Hon'ble Supreme Court in _**Vipulbhai M.Chaudhary (supra)**_ asserting that, as is clear from the first paragraph of the said judgment, the declarations therein are only with respect to Co-operative Societies whose Bye-Laws and Regulations contain no provisions as regards a motion of noconfidence. He says that, however, in Kerala, under the Kerala Cooperative Societies Act ('KCS Act' for short) and Kerala Co-operative Rules ('KCS Rules' for brevity), specific provisions are engrafted for this purpose, namely, Section 28AB and Rule 43A(xii), which provides that no office bearer of the Managing Committee of a Society can be removed, through a no-confidence motion, unless he has been in office for a minimum period of six months after the date of assumption of such office. The learned Senior Counsel says that the directions in WP(C).No. 35100 of 2018 7 _**Vipulbhai M.Chaudhary (supra)**_ would, therefore, not apply in the case of a no-confidence motion carried under the provisions of the KCS Act and he draws my attention specifically to paragraph 51 of the said judgment which reads as under:- _“ 51. The co-operative 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.”_ 10. After reading paragraph 51 of the judgment extracted afore, the learned Senior Counsel then draws my attention to paragraph 52.2 thereof, which, for ease of reference is also extracted below:- WP(C).No. 35100 of 2018 8 “52.2. _Having regard to the set-up in local self-governments prevailing in many of the States 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. In case the motion of no-confidence is once defeated, a fresh motion shall not be introduced within another one year. A motion of no-confidence shall be moved only in case there is a request from one-third of the elected members of the Board of Governors/Managing Committee of the co-operative society concerned. The motion of no-confidence shall be carried in case the motion is supported by more than fifty per cent of the elected members present in the meeting.”_ 11. Sri.S.Sreekumar, the learned Senior Counsel, says that on a conjoint reading of the afore two extracted paragraphs, the contentions of the petitioner cannot hold water at all because the provisions of the KCS Act, through the aforementioned Section and Rule, provide the specific manner in which a no-confidence motion is to be proposed, conducted and concluded; and therefore, that _**Vipulbhai M.Chaudhary (supra)**_ cannot come to the aid of the petitioner. He then adds that, apart from the above, since the petitioner has chosen not to challenge the afore two provisions, it is not possible for him to rely on _**Vipulbhai M.Chaudhary (supra)**_ to WP(C).No. 35100 of 2018 9 contend that, not withstanding the statutory provisions, the declaration therein must be construed to apply even to Co-operative Societies in Kerala. He asserts that this is not the intention of the Hon'ble Supreme Court, which has made it clear in the judgment that the declaration therein applies only where the applicable Statutes, Rules or Bye-laws relating to a Society does not have specific provisions for a no-confidence motion. 12. Smt.C.S.Sheeja, the learned Senior Government Pleader appearing on behalf of the official respondents, began her submissions endorsing the contentions of Sri.S.Sreekumar, the learned Senior Counsel; but prayed that the contents of paragraph 24 of _**Vipulbhai M.Chaudhary (supra)**_ also be read. She says, with pointed to reference to the said paragraph, that the Hon'ble Supreme Court has made it explicitly clear that it is only in the case where the respective Acts or Rules do not contain specific provisions with respect to no-confidence motion, can the declaration of law in the said judgment be applied. Since Smt.C.S.Sheeja is relying vehemently on paragraph 24 of the said judgment, I feel it apposite to extract it as under to enable full reading:- _“ 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_ WP(C).No. 35100 of 2018 10 _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 243-ZT has given a period of one year to frame/reframe the statutes in consonance with Part IX-B and thereafter i.e. with effect from 12.1.2013, those provisions which are inconsistent with Part IX-B, cease to operate.”_ 13. When I analyze the submissions made before me as afore, I must say that I find substantial force in the submissions of Sri.S.Sreekumar, the learned Senior Counsel, broadly for two reasons. For the first, as is also admitted by Sri.T.R.Harikumar, the petitioner has chosen not to challenge either Section 28AB of the KCS Act or Rule 43A(xii) of the KCS Rules. For the second, I am also in affirmation with the submissions made by the learned Senior Counsel that the declaration in _**Vipulbhai M.Chaudhary (supra)**_ to the effect that a motion of no-confidence cannot be brought against a member of the Managing Committee except after a period of two years after such person has assumed office, is intended to apply only to those Societies WP(C).No. 35100 of 2018 11 with respect to which the applicable Statutes, Rules or Bye-laws do not contain specific provisions as regards a no-confidence motion. 14. In the case at hand, it is conceded before me even by the learned counsel for the petitioner, Sri.T.R.Harikumar, that the afore mentioned Section and Rule of the KCS Act and Rules clearly provide the procedural frame-work of a no-confidence motion, expressly stipulating that such a motion can be brought against the office bearers of the Managing Committee of a Society on expiry of a period of six months after such person had assumed office. Obviously, therefore, unless the petitioner challenges these statutory prescripts, it would not be permissible or prudent for this Court to declare, merely on account of _**Vipulbhai M.Chaudhary (supra)**_ , that these provisions are redundant or incapable of operation and that even in the case of Societies registered under the KCS Act and Rules, no motion of no-confidence can be brought against an office-bearer of its Managing Committee, except after he/she has completed two years in office. If I am to do so, it certainly would go against the well established norms and principles of statutory interpretation, that no Court can render provisions of a Statute, especially when they are not challenged, nugatory or redundant. WP(C).No. 35100 of 2018 12 In summation, I am afraid that I cannot find merit in any of the contentions impelled before me on behalf of the petitioner and I am, therefore, compelled, being without any other option, to dismiss this writ petition, however, without making any order as to costs. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** Ac WP(C).No. 35100 of 2018 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE JUDGMENT DATED 04/10/2017 IN WP(C)NO.24376/2017.** **EXHIBIT P2 A TRUE COPY OF THE JUDGMENT DATED 13/12/2017 IN WP(C)NO.17004/2017. EXHIBIT P3 A TRUE COPY OF THE ORDER NO.C.R.P.3047/17 DATED 05/06/2018 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 12/06/2018 IN WP(C).NO.19181/2018.** - **EXHIBIT P5 A TRUE COPY OF THE COMPLAINT DATED 05/10/2018, FILED BY MR.DWARA AND MR.GOPALAKRISHNA PILLAI BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P6 A COPY OF THE LETTER DATED NIL SUBMITTED BY THE SIX APPEAL COMMITTEE MEMBERS BEFORE THE APPEAL COMMITTEE CONVENER.** - **EXHIBIT P7 A TRUE COPY OF THE PROCEEDING NO.C.R.P.8333/18 DATED 12/10/2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P8 A TRUE COPY OF THE NOTICE DATED 17/10/2018 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P9 A TRUE COPY OF THE NOTICE DATED 09.11.2018 ISSUED BY THE UNIT INSPECTOR, VADAKKEVILA UNIT.** **' - RESPONDENT S/S EXHIBITS:** ## **EXHIBIT R9(A) TRUE COPY OF RELEVANT PAGES OF THE MEMBERSHIP REGISTER** **//TRUE COPY// Sd/PA TO JUDGE**