K. Krishnankutty Nair, K. Raveendran Pillai, V. Sujatha, D. Ambujakumari and M. Sulaimankunju v. Joint Registrar of Co-operative Societies, Office of the Joint Registrar of Co-operative Societies, Civil Station, Kollam; Assistant Registrar of Co-operative Societies (General), Patharam Service Co-operative Bank Ltd. No. 721, Patharam, Kollam; Administrator, Patharam Service Co-operative Bank Ltd. No. 721, Patharam, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** ## **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** ## **WP(C) NO. 37313 OF 2022** ## **PETITIONERS:** - **1 K.KRISHNANKUTTY NAIR AGED 69 YEARS RESIDING AT PERUMANA VADAKKATHIL, KAKKAKKUNNU P.O, SOORANAD SOUTH, KOLLAM-690 522.** - **2 K.RAVEENDRAN PILLAI, ADIKKATTU ANSWARA, IRAVICHIRA WEST, PATHARAM P.O, KOLLAM-690 522.** - **3 V.SUJATHA, KAIPPALLIL, KIDANGAYAM NORTH, PATHARAM P.O, SOORANAD SOUTH, KOLLAM-690 522.** - **4 D.AMBUJAKUMARI, VIJITH BHAVANAM, KIDANGAYAM, KANNIMEL, NORTH MYNAGAPPALLY P.O, SOORANAD SOUTH -690 519.** - **5 M.SULAIMANKUNJU, VAHINI, KIDANGAYAM NORTH, PATHARAM P.O, SOORANAD SOUTH, KOLLAM-690 522. BY ADVS. P.N.MOHANAN C.P.SABARI AMRUTHA SURESH GILROY ROZARIO** ## **RESPONDENTS:** - **1 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, CIVIL STATION P.O, KOLLAM-691 013.** - **2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, SASTHAMKOTTA, KOLLAM-690 521.** - **3 PATHARAM, SERVICE CO-OPERATIVE BANK LTD.NO.721, REPRESENTED BY ITS SECRETARY, PATHARAM P.O, KOLLM – 690 522** - **4 ADMINISTRATOR, (NOT TAKEN CHARGE) PATHARAM SERVICE CO-OPERATIVE BANK LTD.NO.721, PATHARAM P.O, KOLLAM – 690 522** ## **SRI. BIMAL K. NATH, SR.GP.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** - **23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ``` WP(C) No.37313 of 2022 2 ``` ## **`T.R.RAVI, J.`** ``` ---------------------------------------- WP (C) No.37313 of 2022 ------------------------------------------- Dated this the 23[rd]day of November, 2022 ``` ## **`JUDGMENT`** ``` Admit. Government Pleader takes notice for respondents 1 and 2. Notice to respondents 3 and 4 is dispensed with. ``` ``` 2. The prayer in the writ petition is to quash Ext.P6 and for a direction to the 4[th] respondent not to assume office in the light of Ext.P6 and if assumed, to hand over the charge to the petitioners. There is also a prayer to declare that resolution No.242 whereby Sri.Sulaimankunju was nominated as member is proper. The contention of the petitioner is that the Managing Committee of the 3[rd] respondent assumed office on 21.10.2019. There are nine members in the committee. The quorum for the meeting of the committee is five. It is stated that the Managing Committee has already crossed half of its term. Since the son of one Thajudeen, a member of the committee, got appointed as a peon, Sri.Thajudeen tendered resignation on 12.09.2022 to the ``` ``` WP(C) No.37313 of 2022 3 ``` ``` President of the Board of Directors. A meeting of the Committee was held on 20.09.2022, wherein the letter of resignation submitted by Sri.Tajudheen was accepted. Five persons participated in the meeting including Sri.Thajudeen. On the same day, another decision was taken to nominate Sri.Sulaimankunju in the vacancy created by the resignation of Sri.Thajudeen. Subsequently, four of the Managing Committee members named Sri.Vijayaraghavan, Sri.Surendran, Sri.Sivadasan and Smt.Laila Beevi tendered resignation on 12.11.2022. Thereafter, the 1[st] respondent issued Ext.P6 order on 19.11.2022 removing the committee by invoking Section 33(1) of the Kerala Co-operative Societies Act, 1969 (the Act for short) and appointing an Administrator in the place of the committee. ``` ``` 3. The counsel for the petitioner argues that under Section 33, where vacancies occur in the committee either by a resignation or otherwise and the number of the remaining members cannot constitute the quorum for a meeting of the committee, the Registrar can either suo motu or on application ``` ``` WP(C) No.37313 of 2022 4 ``` ``` of any members of the society appoint an Administrator. The proviso to the section says that before making such an order, the Registrar shall publish a notice on the notice board of the Head Office of the society inviting objections to the making of the order. The contention of the petitioner is that Ext.P6 has been issued without publishing such notice and without affording an opportunity to satisfy the Registrar that there is necessary quorum. It is submitted that a democratically elected committee cannot be removed in such a manner. Reliance is placed on the decision in P.Mohammed and others v. The Joint Registrar of Co-operative Societies, Cannanore and ``` ``` others [ILR 1985 Ker 335] wherein this Court held that for invoking Section 33, the requirement of notice before taking decision has to be complied with. This Court held that the second proviso which says that in cases where the Registrar is satisfied that it is not reasonably practicable to publish such notice, the same need not be published, cannot be an answer in a case where there is mere extraction of the words of the second proviso. Reliance is also placed on the decision of a Full ``` ``` WP(C) No.37313 of 2022 5 ``` ``` Bench of this Court in Pavithran v. State of Kerala [2009 (4) KLT 20 (F.B)] wherein this Court held that in administrative matters, there are only voidable orders and unless a person aggrieved takes recourse to the appropriate remedy at appropriate time even an illegal order will be treated as valid and binding. The said decision is relied on to submit that there is already a resolution whereby Sri.Sulaimankunju has been nominated as a member and as such even after the resignation of the four members, there are five members remaining to constitute the quorum. It is submitted that so long as the resolution nominating Sri.Sulaimankunju is not set aside in a manner known to law, it remains to be in force. It is hence submitted that the above facts have not been considered while issuing Ext.P6 order. Reference is also made to Rule 38(4) of Co-operative Societies Rules, which specifically says that a resignation will be effective only after the same is accepted. It is submitted that even though the resignation letter was tendered on 12.09.2022, the same was accepted in the meeting held on 20.09.2022 and on the same day simultaneously ``` ``` WP(C) No.37313 of 2022 6 ``` ``` Sri.Sulaimankunju has been nominated as a member. It is hence submitted that going by the requirement of Rule 38(4), the petitioners are justified in contending that there is sufficient quorum. ``` ``` 4. The Government Pleader placed before me the decision in Divakaran v. Joint Registrar of Co-operative Societies [2014 (4) KLT 297] wherein this Court held that Rule 38(4) is inconsistent with Section 33 (1) of the Act which specifically says that the resignation is effective, as far as an elected member of the committee is concerned, at the time of tendering the same. This Court struck down the Rule. It is submitted that the said judgment has become final. In Nataraj Gownder v. Registrar [2008 (2) KLT 335] this Court had held that Rule 38(4) to the extent it provides that resignation will have effect only from the date of its acceptance by the committee is ultra vires Section 33(1) read with explanation thereto and is void as regards elected members. ``` `5. The law being as stated above, the resignation of` `Sri.Thajudeen had taken effect as early as on 12.09.2022 and` ``` WP(C) No.37313 of 2022 7 ``` ``` the meeting which was held on 20.09.2022 is inconsequential. Admittedly, apart from Sri.Thajudeen, there were only four persons who had participated in the meeting and as such, the nomination of Sri.Sulaimankunju cannot be legally valid. What follows is that on resignation of four members, there are only four other members remaining who can never constitute the quorum. The requirements of Section 33 are hence satisfied. The only other question that remains is whether the publishing of notice stipulated in the proviso is a mandatory requirement. This Court in WP(C)No.17200 of 2021 held that the failure to effect publication in terms of the first proviso of section 33 (1) would not have made a difference since on the facts of that case, even after such a publication, the same consequence would have followed. This Court held that the Court cannot issue a writ in futility. The judgment in WP(C).No.17200 of 2021 was carried in appeal and a Division Bench of this Court in WA No.500/2022 considered the said judgment along with the judgment in WP(C)No.17331 of 2021. Even though the finding in the judgment in WP(C).No.17200 of 2021 was not ``` ``` 8 ``` ## **`WP(C) No.37313 of 2022`** ``` specifically gone into, the Division Bench dismissed the writ appeals finding that they are devoid of any merits. In the facts of this case also the publication as required under the proviso to Section 33(1), will not have any consequence since the fact that there were only four members remaining will not change. This is all the mere so since the resignation of the four members would have taken effect at the time of tendering of the resignation and in effect five members had resigned from the committee of nine members. ``` `6. For the aforesaid reasons, the writ petition fails and is` `dismissed.` ``` Sd/- ``` ``` T.R.RAVI ``` ``` JUDGE ``` ``` sn ``` ``` WP(C) No.37313 of 2022 ``` ``` 9 ``` ## **APPENDIX OF WP(C) 37313/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 A TRUE COPY OF THE JUDGMENT DATED 25.10.2022 IN W.P.(C).NO.31902/2022** **Exhibit P2 A TRUE COPY OF THE REPORT DATED 02.11.2022 OF THE SECOND RESPONDENT** **Exhibit P3 A TRUE COPY OF THE RELEVANT RESOLUTION NO.202 DATED 20.09.2022 APPROVING THE RESIGNATION OF MR. THAJUDEEN.** **Exhibit P4 A TRUE COPY OF THE RELEVANT RESOLUTION NO.242 & 242 DATED 20.09.2022 OF THE MANAGING COMMITTEE Exhibit P5 A TRUE COPY OF THE COMMUNICATION DATED 14.11.2022 OF THE SECOND RESPONDENT Exhibit P6 A TRUE COPY OF THE ORDER DATED 19.11.2022 OF THE FIRST RESPONDENT** **Exhibit P7 A TRUE COPY OF THE JUDGMENT REPORTED IN ILR 1985 KER 335** **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY// PA TO JUDGE**