M. Abdul Salam and others v. Joint Registrar of Co-operative Societies (General) and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN THURSDAY, THE 21ST DAY OF FEBRUARY 2013/2ND PHALGUNA 1934 WP(C).No. 2407 of 2013 (A) PETITIONERS: -------------- 1. M. ABDUL SALAM AGED 58 YEARS CHARUVILA PUTHEN VEEDU, KUNDARA.P.O., KOLLAM (MEMBER BOARD OF DIRECTORS OF THE KUNDARA RURAL CO-OPERATIVE SOCIETY LIMITED NO. Q 1366 KUNDARA, KOLLAM.) 2. Y. MATHEWKUTTY VAZHITHANATHU PUNNAVILA ETHANS, KUNDARA KOLLAM (MEMBER BOARD OF DIRECTORS OF THE KUNDARA RURAL CO-OPERATIVE SOCIETY LIMITED NO. Q 1366 KUNDARA, KOLLAM.) 3. D. DIVAKARAN, SHANMUGHAVILASAM, MULAVANA.P.O., KOLLAM (MEMBER BOARD OF DIRECTORS OF THE KUNDARA RURAL CO-OPERATIVE SOCIETY LIMITED NO. Q 1366 KUNDARA, KOLLAM.) 4. LISSY RAJAN KOTTAYADI CHARUVIAL MELATHIL MUKKODU.P.O. KOLLAM (MEMBER BOARD OF DIRECTORS OF THE KUNDARA RURAL CO-OPERATIVE SOCIETY LIMITED NO. Q 1366 KUNDARA, KOLLAM.) 5. SUNILKUMAR.N. KOUSTHUBAM, MULAVANA, KUNDARA KOLLAM (MEMBER BOARD OF DIRECTORS OF THE KUNDARA RURAL CO-OPERATIVE SOCIETY LIMITED NO. Q 1366 KUNDARA, KOLLAM.) BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS: ------------- 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES KOLLAM-691001. 2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIRES OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES KOLLAM-691001. 3. G. VINODKUMAR PRESIDENT BOARD OF DIRECTORS OF THE KUDARA RURAL CO-OPERATIVE SOCIETY LIMITED NO. Q 1366 KUNDARA, KOLLAM-691501. 4. THE KUNDARA RURAL CO-OPERATIVE SOCIETY LIMITED NO. Q 1366, KUNDARA, KOLLAM REPRESENTED BY ITS SECRETARY-691501. R3 BY ADV. SRI.V.G.ARUN R3 BY ADV. SRI.T.R.HARIKUMAR R BY SPECIAL GOVERNMENT PLEADER SHRI.D.SOMASUNDARAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC 2407/2013 PETITIONER(S) EXHIBITS EXT.P1 TRUE COPY OF THE REQUEST MADE TO THE 1ST RESPONDENT. EXT.P2 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 2- 11-12 EXT.P3 TRUE COPY OF THE LAST OF SUCH REPRESENTATION. RESPONDENTS' EXHIBITS EXT.R3A: COPY OF THE LETTER NO:H.M.9955/12/L.DIS. DT.3.12.2012 OF THE FIRST RESPONDENT EXT.R3B: -DO- MINUTES OF THE MEETING HELD ON 30.1.2013 EXT.R3C: -DO- COMMUNICATION NO.E1/2013 DT.11.2.2013 OF THE 2ND RESPONDENT EXT.R3D: -DO- NOTICE NO:E.1/2013 DT.16.2.2013 OF THE 2ND RESPONDENT JJ /TRUE COPY/ P.S.TO JUDGE **K. SURENDRA MOHAN, J. -----------------------------------------------------------W.P(C) NO: 2407 OF 2013 ----------------------------------------------------------Dated this the 21[st] February, 2013.** ## **JUDGMENT** This writ petition is filed by the petitioners complaining of inaction on the part of the respondents in convening a meeting of the Board of Directors of Kundara Rural Co-operative Society Ltd. for the purpose of considering a no confidence motion. 2. A requisition signed by six members of the Board of Directors had been submitted to the first respondent. The said requisition is Ext.P1. This writ petition is filed by five of the persons who have signed Ext.P1. Pursuant to Ext.P1, the first respondent appointed the second respondent, as per Ext.P2 for the purpose of convening a meeting of the Board of Directors under Rule 43A of the Kerala Co-operative Societies Rules, 1969 (the 'Rules' for short) . When the second respondent did not take any further action in the matter, the petitioners had submitted Ext.P3 request to the first respondent for convening the meeting. However, they complain that there was no response to Ext.P3. Though Rule 43A requires a meeting to discuss the no confidence motion to be convened not later than 30 days from the date on WPC 2407/2013 2 which a copy of the motion was delivered to the Registrar, they complain that no meeting has been held. Since violation of Rule 43A was not due to any default on the part of the petitioners, they allege that the authorities are trying to keep the third respondent in power and to protect his interests. In view of the above, the petitioners contend that they should not be penalised for the default on the part of the second respondent in convening the meeting within the stipulated time. They therefore seek the issue of appropriate directions for convening the meeting. 3. As per interim order dated 1.2.2013, this Court had directed the second respondent to convene the meeting requisitioned by Ext.P1 within a period of three weeks from the date of the said order, notwithstanding the fact that the period stipulated by Rule 43A had expired. Pursuant to the above direction, it appears that a meeting was scheduled to be conducted on 20.2.2013. However, due to the general strike that was called by the opposition parties, it appears that the same was adjourned to 22.2.2013. In the above circumstances, a counter affidavit has been filed by the third respondent and it is submitted on his behalf that the interim order of this Court is liable to be vacated. Since WPC 2407/2013 3 the matter is represented to be urgent, the writ petition itself has been heard. 4. I have heard Adv.P.C.Sasidharan who appears for the petitioners, Adv.V.G.Arun who appears for the third respondent and Shri.D.Somasundaram, the Special Government Pleader who appears for respondents 1 and 2. 5. The counsel for the third respondent contends that the interim order dated 1.2.2013 is liable to be vacated. According to the counsel for the third respondent though Ext.P1request for convening a meeting to consider the no confidence motion had been received by the first respondent and the second respondent had been appointed as the Presiding Officer to convene such a meeting by Ext.P2, four out of the six signatories to Ext.P1 had later withdrawn from the request and informed the second respondent accordingly. Therefore, he had submitted a report to the first respondent informing him of the said development. Pursuant to the said report it is contended that the first respondent had issued Ext.R3(a) order to the effect that the no confidence motion does not survive any longer. In view of the above, it is submitted that there was no omission on the part of the authorities WPC 2407/2013 4 in holding the meeting of no confidence motion as alleged in the writ petition. 6. Adv. V.G.Arun who appears for the third respondent also places reliance on Rule 43A of the Rules to contend that the meeting to discuss the no confidence motion should have been held within an outer limit of 30 days from the date of the motion itself. The said time limit that is mandatory has been violated in the present case. Therefore, no meeting to discuss the said no confidence motion can be held at this length of time. It is contended that the petitioners have been waiting for the past 2 ½ months, even for filing the present writ petition. The counsel also draws my attention to the subsequent conduct of the persons who have signed Ext.P1, who according to the third respondent, have participated in the subsequent meetings as evidenced by Ext.R3(b) minutes. As per Ext.R3(b) the third respondent has been unanimously elected as the delegate of the society to participate in the election to the District Co-operative Bank. It is further contended that though a meeting had been convened on 20-2-2013 to discuss the no confidence motion, the same has been adjourned to 22-2-2013 as per Ext.R3(d). It is contended that the said adjournment of the meeting is in gross violation of sub-rule (iv) of WPC 2407/2013 5 Rule 43A. For the above reason, it is contended that the no confidence motion has already been defeated and cannot be moved for a period of six months, as mandated by sub-rule (iv) of Rule 43A. The counsel places reliance on the decisions of this Court in **Mattachan v. Joint Registrar (General) {2006(2)KLT45}** and **Jose v. Joint Registrar of Co-operative Societies {2007(1)KLT 391}** to contend that the period of thirty days stipulated by Rule 43A is mandatory. 7. Adv.P.C.Sasidharan who appears for the petitioners points out that the second respondent who was appointed as the Presiding Officer to convene a meeting to discuss the no confidence motion had no authority to seek any further instructions from the first respondent. The Presiding Officer was dutybound to convene a meeting for the purpose of discussing the no confidence motion, without delay. Therefore, it is contended that the report of the second respondent as well as the consequential order Ext.R3(a) are illegal and unsustainable. The mandate of sub-rule (iv) of Rule 43A is that the Presiding Officer appointed has to convene and conduct the meeting to discuss the no confidence motion. In view of the above it is contended that the interim order of this Court does not call for any variation as sought for by the third respondent. It is WPC 2407/2013 6 also submitted that since this Court has directed the meeting to be held within a period of three weeks, the action of the second respondent in adjourning the meeting to 22-2-2013 in view of the general strike that was called for on the said date is justified. I have heard the learned Special Govt. Pleader Shri.D. Somasundaram also. 8. The request Ext.P1 seeking the convening of a meeting of the fourth respondent to discuss a no confidence motion against the third respondent, is dated 29-10-2012. As per Ext.P2 dated 2-11-2012 the first respondent has appointed the second respondent as the Presiding Officer to conduct the said meeting. Sub-rule(ii) of Rule 43A reads as follows:- “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.” WPC 2407/2013 7 The wording of the above provision shows that it is mandatory for the officer who has been appointed as the Presiding Officer to “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”. It is also mandated that such date shall not be later than thirty days from the date on which a copy of the motion was delivered to the Registrar. The officer so appointed to convene the meeting is also the person authorised to preside over the same. The above provision makes it clear that the only duty of the second respondent was to convene the meeting within the time stipulated by the above provision. However, it does not appear that the second respondent has issued any proceedings to convene a meeting as mandated by sub-rule (ii) of Rule 43A. The contention is that, at a later point of time he has reported to the first respondent that some of the members have resiled from Ext.P1. The said allegation is stoutly denied by the counsel for the petitioners pointing out that all the persons who have signed Ext.P1 are petitioners in this writ petition. Instead of reporting the matter to the Joint Registrar the proper course that should have been adopted by the second respondent was to convene a meeting, which would have revealed whether the members who are alleged WPC 2407/2013 8 to have withdrawn from Ext.P1 had in fact done so. Therefore, I am not satisfied that the procedure adopted by the second respondent is in conformity with Rule 43A of the rules. It is worth noticing that the second respondent was appointed on 2-11-2012 and that, the letter referred to in Ext.R3(c) is dated 22.11.2012. One fails to understand why the second respondent had not convened a meeting during the period from 2.11.2012 to 22.11.2012. There is no explanation for the omission to convene the meeting within the said period or at least to issue a notice scheduling such a meeting. 9. Reliance is placed on the decision reported in 2006(2) KLT 45 (supra) to contend that if a meeting was not convened within the period of 30 days stipulated by sub-rule (ii) of Rule 43A, no other meeting for the said purpose could be convened within a period of six months. It is also pointed out that the above position has been approved and confirmed by the Division Bench in **2007(1) KLT 391 (supra)** . It is true that this Court has held in the decisions referred to above that the requirement of holding a meeting under sub-rule (ii) of Rule 43A within the period of 30 days is mandatory. However, the situation in the present case is different. Here, though a proper requisition, Ext.P1 had been submitted and a WPC 2407/2013 9 Presiding Officer had been appointed within the prescribed time the said officer has not convened the meeting as directed. However, it is worth noticing that the question considered in the said decision was whether, a no confidence motion that could not be considered in a meeting “for want of quorum” could be considered in another meeting. In such a case, it has been held that, if the motion was not carried, no meeting could be held for a period of six months thereafter. In the present case, since the meeting itself was not convened, the said situation contemplated by sub-rule (xi) of Rule 43A does not arise. Therefore, the dictum in the decisions relied on by the counsel for the third respondent are held to be not applicable to the fact situation presented by this case. 10. Apart from the above, even assuming the contention of the counsel for the third respondent to be true, that some of the members who had signed the no confidence motion had subsequently resiled, there was no justification for not holding the meeting that the second respondent had been ordered to conduct. A conduct of the said meeting would have revealed whether anyone had actually resiled, as alleged. The question as to whether the third respondent should continue in office has to be determined democratically and any attempt to interfere with or to thwart the WPC 2407/2013 10 said process would only be counter productive and cannot be permitted. Therefore, it is absolutely necessary that a meeting to discuss the no confidence motion is held as scheduled. If the no confidence motion is defeated, the third respondent can continue in office without any further trouble. For the above reasons, I do not consider it necessary to modify or vary the interim order that has already been granted on 1.2.2013. Writ petition is disposed of accordingly. Sd/K. SURENDRA MOHAN Judge jj /True copy/ P.S.to Judge WPC 2407/2013 11