Indian Coffee Board Workers Co-operative Society Ltd. v Antony K.M & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 20TH DAY OF SEPTEMBER 2017/29TH BHADRA, 1939** **WA.No. 1847 of 2017 () IN WP(C).23208/2017** ## **--------------------------------------------** ## **AGAINST THE JUDGMENT IN WP(C) 23208/2017 of HIGH COURT OF KERALA DATED 23-08-2017** ## **APPELLANT/5TH RESPONDENT:** **------------------INDIAN COFFEE BOARD WORKERS CO-OPERATIVE SOCIETY LTD. NO. 4227, REPRESENTED BY ITS SECRETARY, P.B.NO. 184, THRISSUR - 680 001.** ## **BY ADV. SRI.GEORGE POONTHOTTAM** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4:** - **------------------------** ## **1. ANTONY.K.M** **AGED 40 YEARS, S/O. MATHAI, KUNNUMPURATH, POLLATHAI P.O., KALAVOOR, ALAPPUZHA - 688 522.** ## **2. STATE OF KERALA,** ## **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **3. DIRECTOR OF INDUSTRIES, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033.** ## **4. GENERAL MANAGER,** ## **DISTRICT INDUSTRIES CENTRE, THRISSUR - 680 003.** ## **5. KERALA STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033.** **R1 BY ADV. SRI.T.B.HOOD R1 BY ADV. SMT.M.ISHA R1 BY ADV. SRI.AMAL KASHA** **R2,R 3,R 4 BY ADV. SRI.K.K.RAVINDRANATH, ADDL.ADVOCATE GENEAL BY GOVERNMENT PLEADER, SRI.K.K.RAVEENDRAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **NAVANITI PRASAD SINGH, C.J. & RAJA VIJAYARAGHAVAN. V., J. -----------------------------------------W.A.No.1847 OF 2017** ## **-----------------------------------------Dated this the 20[th] day of September, 2017** ## **J U D G M E N T ~~~~~~~~** ## **Navaniti Prasad Singh, C.J.** 1.This intra court appeal is filed by the Indian Coffee Board Workers Co-operative Society being aggrieved by the judgment dated 23.08.2017 passed by the learned Single Judge of this Court in W.P.(C) No.23208 of 2017. The appellant was the 5[th] respondent in the writ proceedings. The continuance of the Management Committee of the Society was challenged by the writ petitioner, who is the 1[st] respondent herein. The learned Single Judge _inter alia_ held that the mandate for which the Management Committee had been elected being for a period of three years and the said period of the committee having expired, elections had to be necessarily held, notwithstanding the statutory amendment fixing the period as five years. This is what is challenged in this appeal. **W.A.No.1847/2017** **2** - 2.We have heard the learned counsel for the appellant, the learned Government Pleader and the learned counsel for the 1[st] respondent in this appeal and with their consent, we are disposing of this appeal at this stage itself. - 3.The first question which arises is as to what is the life span of an elected Management Committee. We would not like to go into this question because, there is a fundamental error or a fundamental illegality which vitiates the very existence of the Management Committee. The undisputed facts are that on 7.3.2014, the Committee of the Society decided to get the elections conducted on 22.6.2014 to elect the Managing Committee for the period 2014-2017. The Society requested the General Manager, Industries Centre to appoint a Returning Officer for conducting the election. Pursuant thereto, the 3[rd] respondent appointed a Returning Officer, who conducted the election on 22.6.2014 and results were declared. From **W.A.No.1847/2017** **3** this, it could be seen that firstly the elections were held for a period of three years, i.e., for the period 2014-2017. It was conducted by the General Manager, Industries Centre. These two facts are to be noted for their legal significance. 4.It appears that the Kerala Co-operative Societies Act was amended on 14.2.2013. By the amendment of Section 28(1) of the Act, for the earlier provision which prescribed the period of the elected Management Committee to be for a period not exceeding five years, amendment as aforesaid provided that the period of elected Management Committee would be five years, the distinction being earlier it was discretionary period, but not exceeding five years. Therefore, by bye-laws or otherwise, the period of Management Committee could be for any period up to five years. Therefore, by the bye-laws, the said period had to be stipulated. Now, as per the amendment, when **W.A.No.1847/2017** **4** the Act fixed the period itself, there is no discretion left and necessarily a Management Committee when elected would have a life span of five years. 5.We have noted this to show that though this amendment was incorporated in the statute with effect from 14.2.2013, the Committee and the General Manager had resolved in the year March, 2014 to hold elections only for a period of three years, which was clearly in conflict with the Statute. It appears that they were all ignorant of the change. - 6.Learned counsel for the 1[st] respondent/ the writ petitioner submits referring to Rule 39 of the Co-operative Societies Rules framed under the Act as well as the bye-laws that, so long as the bye-laws were not amended and brought in consonance with the Act, the bye-laws would operate. We have noted only to reject the same for the simple reason that no rule or bye-law under an Act can ever be in **W.A.No.1847/2017** **5** conflict with the Act. To that extent, the rule or the bye-law would be void and inoperative, even though it may not be amended accordingly. Thus, to say that the bye-law continued to fix the period as three years notwithstanding the amendment of the Act fixing the period as five years , is not a correct statement of law. The bye-law and the rules to the extent of its conflict with the Act would have to be held to be ultra vires and inoperative. We would thus ordinarily have held that the Committee as elected in the year 2014, after the 2013 amendment would have continued for a period of five years as now statutorily fixed, but there is an inherent defect in the constitution of the Committee itself. In 2013, the Act also had an amendment for all Co-operative Societies including Industrial Workers Co-operative Societies. The authority for the superintendence, direction and control of the preparation of the electoral rolls and for the conduct of all elections to co-operative **W.A.No.1847/2017** **6** societies was taken away from different authorities and conferred solely on the State Co-operative Election Commission as per Section 28-B of the Act. Thus the General Manager, District Industries Centre, had no jurisdiction in the matter. He could have neither conducted the election nor appointed a Returning Officer and declared the result. Thus, the action of holding election was wholly without jurisdiction. There was a patent and inherent lack of jurisdiction. In such a situation, an election conducted by an authority and a person who inherently lacked jurisdiction can be no election in law. If that be the situation then, the election of the present Management Committee cannot be held to be a valid election. 7.The learned counsel for the appellant submits that applying the de facto doctrine the actions taken by the General Manager, District Industries Centre can be **W.A.No.1847/2017** **7** validated. We are unable to accept this in as much as the said doctrine applies in a situation where an officer holding the office is invalidly appointed, but the office is valid. Reference may be made to **Gokaraju Rangaraju v. State of A.P.** [AIR 1981 SC 1473]. The issue in that case was that a proceeding was initiated against one Gokaraju under section 6A of the Essential Commodities Act and certain quantity of paddy was seized. His appeal before the Sessions Judge was heard by the Additional Sessions Judge and the same was rejected. The appellant then preferred Criminal Revision petition before the High Court of Andhra Pradesh. Independently of these transactions, certain other accused who had been convicted preferred appeals before the II Additional Sessions Judge, Guntur and the said Judge passed judgment against them. The convicted accused approached the High Court challenging the same. By the time these matters had come up before the High Court, **W.A.No.1847/2017** **8** the appointment of the Additional Sessions Judges who had rendered judgments had been quashed by the High Court on the ground that their appointment was in violation of the provisions under Article 233 of the Constitution. When the Criminal Revision as well as the Appeals were taken up, it was urged that as the appointment of the Judge had been cancelled being illegal, the judgment rendered by the Judge would stand vitiated. This was negatived by the High Court and the Apex Court holding that there was no defect in the office, i.e., the Session Court in awarding the sentence. The defect was of the person manning the court. Considering the public function and proper administration, the court held that the judgment would not stand vitiated. In paragraph Nos.8 and 15 of the **Gokaraju Rangaraju (supra),** it was held as follows: 8.…............................Lord Denning M. R., characteristically, said. "He sits in the seat of a judge. He wears the robes of a **W.A.No.1847/2017** **9** judge. He holds the office of a judge. Maybe he was not validly appointed. But, still, he holds the office. It is the office that matters, not the incumbent............... so long as the man holds the office and exercises it duly and in accordance with law, his orders are not a nullity. If they are erroneous they may be upset on appeal. But if not erroneous they should be upheld". Lord Denning then proceeded to refer to the State of Connecticut v. Carroll (1871-38 Conn 449) decided by the Supreme Court of Connecticut, Re. Aldridge (1893-15 NZLR 316) decided by the Court of Appeal in New Zealand and Norton v. Shelby County (1886-118 US 425) decided by the United States Supreme Court. Observations made in the last case were extracted and they were:"Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions ................ The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact." xxx xxxx xxxx 15 . A Judge, de facto, therefore, is one who is not a mere intruder or usurper but **W.A.No.1847/2017** **10** one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. 9. This is not the case here because, it is a case of acting without jurisdiction. The General Manager, District Industries Centre himself was not authorized for the said purpose. This is virtually an instance of _coram non judice._ That renders the action invalid. If we keep this in mind, then coupled with the fact that the mandate for the election was for a period of three years only, it would certainly now call for a fresh election, so that the fresh Management Committee is legitimized in its functions. **W.A.No.1847/2017** **11** 10.We would accordingly direct the State Co-operative Election Commission to take up the matter immediately and the Committee is directed to forthwith pass a resolution calling for fresh election. Upon that resolution being passed, the Committee would cease to function and would be replaced by an ad hoc committee of three members consisting of President, Secretary and Assistant Secretary to continue till a fresh committee is constituted. It would be the mandate of the State Co-operative Election Commission to ensure that the elections are held at the earliest, not later than two months from today. Writ Appeal is accordingly dismissed. Sd/- **NAVANITI PRASAD SINGH, CHIEF JUSTICE** **sd/RAJA VIJAYARAGHAVAN. V., JUDGE** ps20/9/17