K. Sivadasan Nair & Adv. C. K. Shaji Mohan v. State of Kerala and Others (WA No.159 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943 WA NO. 159 OF 2022** **AGAINST THE JUDGMENT DATED 27.01.2022 IN WP(C) 5/2022 OF** ## **HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** - **1 K.SIVADASAN NAIR, EX-MLA, MEMBER, BOARD OF DIRECTORS, KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.T-4017, AGRICULTURAL DEVELOPMENT BANK BUILDING, STATUE JUNCTION, THIRUVANANTHAPURAM - 695 001.** - **2 ADV.C.K.SHAJI MOHAN, MEMBER, BOARD OF DIRECTORS, KERALA STATE COOPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.T-4017, AGRICULTURAL DEVELOPMENT BANK BUILDING, STATUE JUNCTION, THIRUVANANTHAPURAM - 695 001. BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, DPI JUNCTION, THIRUVANANTHAPURAM - 695 014.** 2 WA No.159 of 2022 - **3 KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.T-4017, AGRICULTURAL DEVELOPMENT BANK BUILDING, STATUE JUNCTION, THIRUVANANTHAPURAM - 695 001, REPRESENTED BY THE MANAGING DIRECTOR.** - **4 S.SANJAYKUMAR DELEGATE, KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.T-4017, REPRESENTING PALODE CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD., NO.T-862, PALODE, KARUMANCODE P.O., PACHA, THIRUVANANTHAPURAM - 695 562.** - **5 R.THILAKAN, DELEGATE, KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.T-4017, REPRESENGING PEERMAEDU CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD., PERUMEDU, IDUKKI DISTRICT - 685 501.** - ***6 SOLOMON ALEX, AGED 69 YEARS, S/O.K.ALEXANDER, ALEX COTTAGE, VAZHUTHOOR, NEYYATTINKARA P.O., THIRUVANANTHAPURAM – 695 121.** - ***(ADDITIONAL R6 IMPLEADED AS PER ORDER DATED 14.03.2022 IN I.A.NO.1/2022 IN WA NO.159/2022) BY ADVS.** **SRI.P.P.THAJUDEEN GOVERNMENT PLEADER R1 & R2 SRI.P.RAVINDRAN SR. SRI.RAGHURAJ SC** - **SRI.M.SASINDRAN SRI.M.A.ASIF** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 WA No.159 of 2022 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **----------------------------------------------Writ Appeal No.159 of 2022** **----------------------------------------------Dated this the 14[th] day of March, 2022** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** This writ appeal is directed against the judgment dated 27.01.2022 in W.P.(C) No.5 of 2022. The appellants were the petitioners in the writ petition. 2. The third respondent is an apex society registered under the Kerala Co-operative Societies Act, 1969 (the Act). Its general body consists of 76 primary societies. The appellants represent two among the members of the third respondent in its general body and have been elected in that capacity to the Managing Committee of the third respondent as well. On 30.10.2021, a no confidence motion was moved by two other members of the third respondent against its 4 WA No.159 of 2022 Managing Committee and a notice requiring convening of a general body to consider the no confidence motion was given by 31 other members of the third respondent to the Registrar. On 13.12.2021, the Registrar issued Ext.P8 order invoking Section 30(3) of the Act, nominating an officer under him to call for a special general body of the third respondent to consider the no confidence motion. The officer authorised by Ext.P8 order thereupon decided to convene the special general body of the third respondent on 06.01.2022 and instructed the Managing Director of the third respondent to issue notice of the proposed special general body to the members. Ext.P9 is one of the notices issued by the Managing Director in this regard. The writ petition was instituted at that point of time challenging Ext.P8 order and Ext.P9 notice. The appellants also sought a declaration that the amendment made to Section 33(1) of the Act in terms of Act 33 of 1971 to the extent it enables appointment of new committee or Administrator on a no confidence motion passed by the general body against the existing committee stands repealed by the application of the WA No.159 of 2022 5 doctrine of desuetude and also a declaration that a no confidence motion cannot be moved against an elected managing committee of a Society. 3. In terms of the interim order passed on 05.01.2022, the learned Single Judge had permitted consideration of the no confidence motion proposed on 06.01.2022 but directed that the motion if passed shall not be given effect to without orders from this Court. 4. The following were the questions formulated for decision by the learned Single Judge : (a) Is there any provision under the Kerala Co-operative Societies Act (hereinafter referred to as “KCS Act”) enabling a no-confidence motion be moved against the Managing Committee of a Society? (b) Is that part of Section 33 of the KCS Act providing for moving of a no-confidence motion against the Managing Committee, a dead letter, applying the doctrine of desuetude? (c) In the absence of any Rules prescribing the procedure for moving a motion of no-confidence against a Managing Committee in terms of Section 33 of the KCS Act, is not the statutory provision unenforceable/ sterile? 6 WA No.159 of 2022 (d) Does the Registrar have the power to summon a Special General Body under Section 30(3) of the KCS Act for considering a motion of no-confidence against a Managing Committee? (e) Can the Registrar summon a General Body under Section 33 of the KCS Act without requisition from the prescribed number of members in terms of Section 30(1)? (f) Can the delegatee of the Registrar further delegate the power under Section 30(3) of the KCS Act to summon a Special General Body Meeting? After hearing the learned counsel for the parties on either side, the learned Single Judge answered all the questions against the appellants and consequently dismissed the writ petition. 5. In the meanwhile, the no confidence motion was passed with 39 votes favouring the motion and 36 votes against. Although arguments were advanced by the learned counsel for the appellants as to the correctness of the resolution passed on the no confidence motion, the learned Single Judge did not go into the said question for want of necessary pleadings. It was however made clear in the judgment that the same will not preclude the appellants from WA No.159 of 2022 7 challenging the resolution on the no confidence motion in accordance with law. The appellants are aggrieved by the decision of the learned Single Judge and hence, this appeal. 6. Heard the learned counsel for the parties on either side. 7. Sri.George Poonthottam, the learned Senior Counsel for the appellants made elaborate submissions in the matter. The learned Senior Counsel did not contend that the Act does not contemplate removal of an elected managing committee through a no confidence motion in as much as it provides for the course to be adopted in the event a no confidence motion is passed by the general body against the committee in Section 33(1). The contention of the learned counsel however was that although the said provision was introduced in the statute as early as in the year 1971, rules for giving effect to the same have so far not been incorporated in the Kerala Co-operative Societies Rules, 1969 (the Rules) and as such, the provision cannot be given effect to. The learned counsel has elaborated the said submission pointing out that in 8 WA No.159 of 2022 order to ensure a fair election to the managing committee, an independent body was also constituted in terms of the provisions of the Act as Co-operative Election Commission and this being the scheme of the Act, in the absence of similar provisions either in the Act or in the Rules framed thereunder for removal of the managing committee elected to power by the general body, it cannot be said that an elected managing committee for society could be removed through a no confidence motion. It was also argued by the learned counsel in this regard that if it is held that an elected managing committee could be removed in the fashion in which the managing committee was removed in the case on hand, an elected managing committee will always be at the mercy of the Registrar. It was also the contention of the learned counsel that since the provision has not been given effect to, except once, during the last 50 years, the same has become a dead letter and unenforceable in the light of the doctrine of desuetude. It was pointed out by the learned counsel that the decision taken on the no confidence motion moved invoking the provision once 9 WA No.159 of 2022 was set at naught by this Court in **Manojkumar K.M. v. Joint Registrar of Co-operative Societies (General), Kannur** , 2018 (1) KHC 717. It was argued by the learned counsel that the contention aforesaid was repelled by the learned Single Judge taking the stand that appellants have not established that the provision has not been given effect to all these years, as claimed by them. According to the learned counsel, the fact alleged being a negative fact, the learned Single Judge ought not have insisted the appellants to establish the same, especially when the assertion made by the appellants in the writ petition in this regard has not been refuted by the Registrar in the counter affidavit filed in the matter. It was also argued by the learned counsel that in the absence of any rules in place, the position now is that a managing committee of a society elected for a term can now be removed on a no confidence motion at the drop of a hat and the seriousness of the situation has not been considered by the learned Single Judge. The learned counsel has also assailed the finding of the learned Single Judge that Ext.P9 notice issued by the Managing Director 10 WA No.159 of 2022 of the third respondent is in order, on the ground that the notice of the extra ordinary general body should have been issued by the officer authorised by the Registrar. It was argued by the learned counsel that insofar as this Court allowed the extra ordinary general body pursuant to Ext.P9 notice to take place as scheduled, this Court ought to have considered the correctness of the decision adopted on the no-confidence motion. 8. The learned counsel for the party respondents as also the learned Government Pleader supported the impugned judgment. 9. It is seen that having realised the need to strengthen the democratic basis of co-operative societies and to provide for a constitutional status to them, in terms of the 97[th] amendment to the Constitution, a new part titled "THE COOPERATIVE SOCIETIES" was introduced in the Constitution prescribing, among others, the manner in which co-operative societies registered under the law relating to co-operative societies in force in the States and also providing for 11 WA No.159 of 2022 establishment of multi-state co-operative societies. In addition, in terms of the said constitutional amendment, Article 43B was introduced in part IV of the Constitution providing that the State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. Similarly, Article 19(1)(c) of the Constitution was also amended conferring on citizens a fundamental right to form co-operative societies. Having regard to the object of the 97[th] amendment to the Constitution, in **Vipulbhai M. Chaudhary v. Gujarat Coop. Milk Mktg. Federation Ltd.,** (2015) 8 SCC 1, the Apex Court has held that constitutional status has been conferred on co-operative societies with the object of ensuring their autonomy and democratic functioning and that after the 97[th] amendment to the Constitution, a co-operative society has to function as a democratic institution. Paragraphs 14 and 15 of the judgment of the Apex Court in the said case read thus : **14.** The cooperative societies having been conferred a constitutional status by the Ninety-seventh Amendment, the whole concept of cooperatives has undergone a major 12 WA No.159 of 2022 change. In 1993, the local self-governments viz. panchayats and municipalities were also given constitutional status under Parts IX and IX-A of the Constitution of India by the 73rd and 74th Amendments. The Statement of Objects and Reasons would show that the Constitution wanted the local bodies to function as vibrant democratic units of self-government. After two decades, cooperative societies were given the constitutional status by including them under Part IX-B. The main object for the said Amendment was also to ensure “their autonomy, democratic functioning and professional management”. **15.** The National Policy on Cooperatives announced in March 2002 has recognised democracy, equality, equity and solidarity as values of cooperatives. Cooperative society has been declared as a democratic institution. Democratic principles have all through been recognised as one of the cooperative principles though the constitutional affirmation of those principles came only in 2012. **Vipulbhai** is a case where the question considered was as to whether in the absence of a provision in the regulatory enactment, an office bearer of a co-operative society could be removed by a no confidence motion. Earlier, in **S.Lakshmanan, President, Thiruvilwamala Weavers Cooperative Society Ltd. v. V. Velliankeri Member of Board** 13 WA No.159 of 2022 ## **of Directors, Thiruvilwamala Weavers Co-operative** **Society Ltd.** , AIR 2002 Ker 325, a Full Bench of this Court held that in the absence of a specific provision in the Act, the Rules made thereunder and the bye-laws of a co-operative society, an elected committee of a Society cannot move or consider a motion for loss of confidence in the President, Vice-President, Treasurer or any other office bearer of the managing committee. After referring to the decision of the Full Bench in **Lakshmanan** and the judgments of other High Courts taking identical views, the Apex Court has held that in the background of the 97[th] amendment to the Constitution, since co-operative societies are bound to function as democratic institutions and conduct their affairs based on democratic principles, provisions for the same shall be reflected in the regulatory enactments and if not, it is for the court to read the democratic principles into the regulatory enactments. It was also held by the Apex Court in the case that if a procedure is prescribed in any Act, Rules or bye-laws regarding election of an office bearer and for removal thereof by way of motion of no confidence, the same 14 WA No.159 of 2022 procedure have to be followed and in case there is no express provision under the Act, Rules or bye-laws for removing 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. Paragraphs 38, 42 and 51 of the judgment read thus : **38.** Shri Kapil Sibal, learned counsel appearing for the appellant, inviting reference to the doctrine of casus omissus and placing reliance on the Full Bench decision of the High Court of Kerala in _S. Lakshmanan_ v. _V. Velliankeri_ [2002 SCC OnLine Ker 53 : AIR 2002 Ker 325] and the decisions of the other High Courts submits that no such power of removal of the Chairperson by no confidence can be read into the provisions of the Act, Rules or Bye-laws. To quote from _S. Lakshmanan case_ [2002 SCC OnLine Ker 53 : AIR 2002 Ker 325] : (AIR p. 330, para 16) “ _16._ The Committee is elected by following the procedure prescribed under the Act and the Rules and is guaranteed a tenure as prescribed in the Bye-laws, by virtue of Rule 39(1). It can only be removed by the procedure prescribed in the Act or the Rules or the Byelaws. The only contingency under which the Committee may be removed before the end of its tenure is indicated in Section 33(1) of the Act. Section 33(1) of the Act envisages the passing of a no-confidence motion by the general body which results in wholesale removal of the Committee. Barring this provision, there is no 15 WA No.159 of 2022 other provision by which an elected individual member of the Committee can be removed. We are, therefore, unable to accept the contention of the appellants that such a drastic power can be read into the Act, even where there are no provisions.” **==> picture [179 x 7] intentionally omitted <==** **42.** It may be seen that all these decisions dealt with the preNinety-seventh Amendment status of the cooperative societies. The Amendment providing constitutional status to the societies has brought out radical changes in the concept of cooperative societies. Democratic functioning and autonomy have now become the core constitutional values of a cooperative society. Such societies are to be registered only if they are founded on cooperative principles of democracy, equality, equity and solidarity. **==> picture [179 x 7] intentionally omitted <==** **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 16 WA No.159 of 2022 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. As seen from the extracted judgment, the argument based on the decision of this Court in **Lakshmanan** has not been accepted since the same is a decision rendered prior to the 97[th] amendment to the Constitution. Even though Gujarat High Court has declared the 97[th] amendment to the Constitution inserting Part IXB to the Constitution to be ultra vires the Constitution for want of requisite ratification in terms of the proviso to Article 368(2) of the Constitution and even though the said decision of the Gujarat High Court was upheld by the Apex Court in **Union of India v. Rajendra N. Shah** , AIR 2021 SC 4905, except to the extent that it strikes down the entirety of Part IXB of the Constitution and declared that Part IXB of the Constitution is operative only insofar as it concerns multi-state co-operative societies, insofar as the amendment made to 17 WA No.159 of 2022 Article 19(1)(c) and the amendment made to Part IV of the Constitution inserting Article 43B are still part of the Constitution unaffected by the judgments aforesaid, we are of the view that this court is bound to give due regard to the decision in **Vipulbhai** while considering a matter of this nature. It is all the more so since it is seen that the judgment in **Vipulbhai** was rendered having regard to the provision in Article 43B of the Constitution as well. 10. The only provision in the Act contemplating removal of an elected committee by no confidence motion is Section 33. Sub-section (1) of Section 33 which is relevant in the context reads thus : **33. Appointment of new committee or administrator on failure to constitute committee, etc.** .-(1)Where the term of office of a committee has expired and a new committee has not been constituted, or [where a noconfidence motion is passed by the general body against the existing committee or where the existing committee resigns enbloc or where vacancies occur in the committee either by resignation or otherwise and the number of remaining members cannot constitute the quorum for the meeting of the committee, or where the committee fails to hold its regular meeting consecutively for six months or where the 18 WA No.159 of 2022 ## Registrar is satisfied.] (a) that a new committee cannot be constituted before the expiry of the term of office of the existing committee; or (aa) there is stalemate in the constitution or functions of the committee; [(b) that a new committee is prevented from entering upon office or a new committee fails to enter upon office, on the date on which the term of office of the existing committee expires, the Registrar may, either suo motu or on application of any member of the society, after intimating the Circle Cooperative Union, appoint one administrator or an administrative committee consisting of not more than three individuals, [who need not be member of the society, one among them as convener] to manage the affairs of the society, for a period not exceeding six months as may be specified in the order, which period may, at the discretion of the Registrar and for reasons to be recorded in writing, be extended, from time to time, so, however, that the aggregate period shall not, in any case, exceed one year or till a new committee enters upon office, which ever is earlier.] Provided that before making such 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 within a period specified in the notice and consider such objections. 19 WA No.159 of 2022 Provided further that it shall not be necessary to publish such notice in cases where the Registrar is satisfied that it is not reasonably practicable to do so. Provided also that, where a committee, administrator or administrators, as the case may be, is in office at the commencement of the Kerala Co-operative Societies (Amendment) Act 1992, the Registrar may extend the term of such committee administrator or administrators, as the case may be, for a further period not exceeding one year from the date of such commencement. Explanation.-For the purpose of this sub-section, a tender of resignation by a member of the committee shall have the effect of terminating his membership from the committee. As noted, Section 33 is a provision dealing with the authority of the Registrar to appoint a new committee or administrator in any one of the contingencies mentioned therein. Removal of managing committee of a society through a no-confidence motion is one of the contingencies made mention of in the said provision. In other words, there is no specific enabling provision in the Act for removal of an elected managing committee of a society by its general body through a no confidence motion. Even though there is no specific enabling provision, in 20 WA No.159 of 2022 **Lakshmanan,** a Full Bench of this Court has clarified that Section 33(1) of the Act empowers a no-confidence motion being passed against an elected committee, although the said judgment was not followed in **Vipulbhai** on a different score. The relevant clarification in **Lakshmanan** reads thus: “Section 33(1) of the Act envisages the passing of a noconfidence motion by the general body which results in whole sale removal of the committee. Barring this provision, there is no other provision by which an elected individual member of the committee can be removed.” However, in the light of Article 43B of the Constitution providing for democratic control of co-operative societies, we are of the view that it is unnecessary to go into the question whether there exists any enabling provision for removal of an elected managing committee by the general body through a no confidence motion, for a managing committee is constituted in a society in terms of Section 28 by its general body, and as clarified by the Apex Court in **Vipulbhai,** the authority of a body to remove a person elected by them to an office is part of the democratic control of co-operative societies. 21 WA No.159 of 2022 11. Let us now deal with the arguments advanced by the learned Senior Counsel for the appellants. The first and foremost contention is that the provision in Section 33(1) of the Act insofar as it relates to removal of an elected committee of a society by its general body through a no-confidence motion as introduced in the year 1971 has not been in operation for the last 50 years and has thus become a dead letter, unenforceable in the light of the doctrine of desuetude. According to us, it is unnecessary to consider this contention in the light of the decision of the Apex Court in **Vipulbhai,** where it has been categorically held that after the 97[th] amendment to the Constitution, the authority of a body to remove a person elected by them to an office is part of the governance on democratic lines which co-operative societies have to follow even if there is no provision for the same in the statute. 12. Even otherwise, we do not also find any merit in the argument advanced by the counsel placing reliance on the doctrine of desuetude. First of all, it is a fact that doctrine of desuetude is not being invoked in our country consistently by 22 WA No.159 of 2022 all courts on account of divergent views on its application. Be that as it may, in order to apply the doctrine, the law must have fallen in desuetude for a considerable period, that is, it must be shown that the law, as such, had not been enforced for a considerable period of time and further more, it must be established that a practice contrary to such law has been followed for a long period. The appellants themselves admit that the provision has been invoked earlier and **Manojkumar** is the case that arose on account of the invocation of the relevant provision. Of course, the decision taken on the no-confidence motion involved in the said case has been set at naught by this Court. But, the said decision has been rendered not on the ground urged by the appellants, but on the ground that the noconfidence motion was not included in the agenda for the meeting convened. Be that as it may, even if it is assumed that the provision has not been invoked for the last 50 years, the appellants have not shown that a different procedure is now in place for removal of the managing Committee of the society by the general body. The arguments based on the doctrine of 23 WA No.159 of 2022 ## desuetude shall therefore fail. 13. The next argument to be dealt with is that the provision cannot be invoked insofar as rules for giving effect to the same have so far not been framed. It is true that no procedures/rules have been prescribed regarding the mode or manner of moving a no-confidence motion against the managing committee of a society by its general body. It is by now settled that the absence of rules or prescriptions or procedure is of no consequence when the power is conferred, especially when the empowering section does not say that power is to be exercised “in the manner” or “in the manner which may be prescribed” etc. As noted by the learned Single Judge, the decisions of the Apex Court in **Orissa State (Prevention & Control of Pollution) Board v. Orient Paper Mills,** (2003) 10 SCC 421, **Surinder Singh v. Central Government** , (1986) 4 SCC 667, **Mysore State Road Transport Corporation v. Gopinath Gundachar Char** , AIR 1968 SC 464 and **U.P.State Electricity Board v. City Board, Mussoorie,** (1985) 2 SCC 16 are authorities for the said 24 WA No.159 of 2022 proposition. Of course, in the absence of rules, the procedure adopted shall not be arbitrary or unfair. The appellants do not have a case that in the absence of rules, the procedure adopted was unfair or arbitrary and that they were subjected to prejudice on account of the same. We do not, therefore, find any merit in this contention as well. 14. Another argument advanced by the learned counsel for the appellants is that if a no-confidence motion is allowed to be passed in the absence of any rules at the drop of a hat, the functioning of the co-operative societies would be paralysed. We are unable to consider this contention in the light of the various decisions referred to in the preceding paragraph and the decision of the Apex Court in **Vipulbhai** that since cooperative societies are to be governed on democratic lines going by the constitutional scheme, even absence of an enabling provision is not an impediment for removing a person elected to an office by a no-confidence motion. That does not mean that rules for implementation of a provision in the aforesaid nature is not necessary and what is mentioned is only 25 WA No.159 of 2022 that merely for want of rules, it cannot be said that the provision is unenforceable. That apart, as noted, the procedure to be followed in the absence of any rules shall be fair, or otherwise the decision on the no-confidence motion could be challenged. 15. There is also no substance in the argument that notice of an extraordinary general body directed to be convened by the Registrar in exercise of the power under Section 30(3) of the Act shall be issued by the Registrar or the person authorised by him in terms of the provision and not by anybody else. As rightly observed by the learned Single Judge, Ext.P9 is only a notice regarding a meeting fixed by the officer authorised by the Registrar in terms of Section 30(3) of the Act, issued on the instructions of the officer authorised by the Registrar in terms of the said provision. It is only a ministerial act and we are unable to infer any statutory intendment that the notice shall be issued by the officer himself and cannot be issued by anybody else as instructed by him. That apart, the appellants have no case that any prejudice has been caused to 26 WA No.159 of 2022 them on account of the fact that notice has been issued by the Managing Director of the third respondent. 16. We do not also find any merit in the argument advanced by the learned counsel for the appellants that the learned Single Judge ought to have examined the correctness of the decision taken on the no-confidence motion since it was a decision taken pending disposal of the writ petition subject to its outcome. There is absolutely no impediment in a court examining the correctness of such decisions, provided materials on record are sufficient for the court to render a fair decision on the point. But that does not mean that the court shall decide the correctness of such decisions in every case, irrespective of the fact as to whether there are sufficient materials for the court to render a fair decision on the correctness of the same in the form of pleadings and documents. In the instant case, having regard to the facts and circumstances of the case, the learned Single Judge felt that in the absence of additional pleadings, it is not possible to render a fair decision on the correctness of the decision taken on the no-confidence motion 27 WA No.159 of 2022 and it is on that basis, the correctness of the decision taken by the general body on the no-confidence motion was not examined by the learned Single Judge. The decision of the learned Single Judge, having regard to the facts and circumstances of the case, is in order. 17. In the light of the discussion aforesaid, there is no merit in the writ appeal and the same is accordingly dismissed. 18. Before parting with this judgment, it is necessary to mention that Section 28AB has been introduced to the Act so as to enable the managing committee of the society to remove an elected office bearer on a no-confidence motion for the first time only in the year 2002 in terms of Act 3 of 2002. Soon thereafter, by SRO No.1185 of 2003, the Rules have also been amended incorporating additional rules necessary to give effect to the said provision, obviously as it was felt that rules are required for a fair operation of the statutory provision. Rule 43A is the rule introduced to the Rules in this regard. Rule 43A reads thus: 28 WA No.159 of 2022 “ **43A. Removal of President, Vice-President etc. by no-confidence motion.-** A committee shall remove the President or the Vice-President or the Treasurer or any other officer of the committee from his office by a noconfidence motion in the following manner, namely:- (i) A notice of intention to move a no-confidence motion signed by such number of members as shall constitute not less than one third of the total strength of the committee, together with a copy of the motion which is proposed to be moved shall be delivered to the Registrar, in person, by any two members signing the notice. (ii) Any officer duly authorised by the Registrar concerned in this behalf, shall arrange for the consideration of the motion in a meeting of the committee to be held at the office of the society on a date appointed by him, which shall not be later than thirty days from the date on which the copy of the motion referred to in clause (i) was delivered to the Registrar. The said officer shall give to the members, not less than fifteen clear days of notice of such meeting and of the time appointed therefore. (iii) The officer authorised under clause (ii) shall preside over the meeting convened under this rule. (iv) A meeting convened for the purpose of considering a motion under this rule shall not for any reason, be 29 WA No.159 of 2022 adjourned. (v) No meeting under this rule shall be held, if at the time appointed under the foregoing provisions or, within half an hour from such time, such number of members as shall constitute one half of the total strength of the committee are not present. (vi) As soon as the meeting convened has commenced, the officer presiding at the meeting shall read to it the motion for the consideration of which it has been convened and declare the motion to be open for debate. (vii) No debate of any motion under this rule shall be adjourned. (viii) The officer presiding over the meeting shall neither speak on the merits of the motion nor be entitled to vote thereon but shall regulate the proceedings of the meeting. (ix) A copy of the minutes of the meeting showing the result of the voting, together with a copy of the motion shall, on termination of the meeting, be forwarded to the Registrar forthwith by the presiding officer of the meeting. (x) If the motion is carried with the support of the majority of the members of the committee and if the President or the Vice-President or the Treasurer or any 30 WA No.159 of 2022 Officer of the committee, as the case may be, does not resign his office within two days after passing of the motion he shall cease to hold the office of the committee of the society forthwith. (xi) If no meeting could be held for want of quorum as required under clause (v), or if the motion is not carried by such a majority as required under clause (x), no notice of any subsequent motion expressing want of confidence on the same President, Vice-President, the Treasurer or any officer of the committee, shall be allowed within a period of six months from the date of the meeting. (xii) 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.” As evident from the extracted rule, it provides for various matters including the requirements of a notice to move the noconfidence motion, the procedure to be followed for giving notice, the officer who has to arrange for the consideration of the motion, the time within which the meeting of the committee shall be held for the consideration of the motion, the manner in which business shall be transacted in the meeting etc., 31 WA No.159 of 2022 whereas, in a more serious matter like removal of the entire managing committee by the general body, rules have not been framed, despite lapse of almost 50 years since the provision has been contemplated. There is, therefore, an urgent need to frame rules for giving effect to the provision in the Act which enables removal of a managing committee by the general body through a no-confidence motion, or else, with the frequent shifting of loyalties by persons belonging to different political parties who are in the helm of affairs in majority of co-operative societies in the State, the smooth functioning of the cooperative societies would be affected. The registry is, therefore, directed to forward a copy of this judgment to the Chief Secretary of the State for appropriate action. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** Sd/- ## **C.S.SUDHA, JUDGE.** YKB