N. P. Poulose v. State Co-operative Election Commission and Registrar of Co-operative Societies

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 5TH DAY OF JUNE 2017/15TH JYAISHTA, 1939** **WP(C).No. 18310 of 2017 (K) ----------------------------** ## **PETITIONER(S): -------------** **N.P.POULOSE, CHAIRMAN, MANAGING COMMITTEE, KERALA STATE CO-OPERATIVE MARKETING FEDERATION LTD. NO.F.1107, PB NO.2024, GANDHINAGAR, KOCHI- 682 020.** **BY ADVS.SRI.GEORGE POONTHOTTAM SMT.NISHA GEORGE** **RESPONDENT(S):** **--------------** **1. STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM- 695 001.** **2. REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM- 695 001.** ## **R2 BY GOVERNMENT PLEADER SRI.P.N.SANTHOSH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 18310 of 2017 (K)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE RESOLUTION REF. NO.GL/ELECTION/2017 DATED 27.4.2017 AND THE ENCLOSED ANNEXURES** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT PORTION OF THE BYELAW DEALING WITH THE MANAGEMENT OF THE FEDERATION** - **EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 25.5.2017 ISSUED BY THE COMMISSION** - **EXHIBIT P4 TRUE COPY OF THE RESOLUTION TAKEN AT THE BOARD OF DIRECTORS MEETING HELD ON 30.5.2017** - **EXHIBIT P5 TRUE COPY OF THE NOTICE PUBLISHED IN DESHABHIMANI DAILY DATED 31.5.2017 FIXING THE ANNUAL GENERAL BODY MEETING ON 17TH JUNE 2017** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** ## **//TRUE COPY//** ## **P.S.TO JUDGE** **Msv/** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.18310 of 2017 ----------------------------------------------Dated this the 5[th] day of June, 2017** ## **JUDGMENT** This writ petition is filed by the petitioner seeking direction to the 1st respondent to conduct the election to the Managing Committee of the Kerala State Co-operative Marketing Federation Ltd., of which petitioner is the Chairman, as resolved and forwarded through Ext.P1 resolution on 27.04.2017, and for other consequential reliefs. Material facts for the disposal of the writ petition are as follows: 2. Petitioner is the Chairman of the Managing Committee of the Federation specified above. The term of the Committee is expiring on 06.07.2017. Therefore, a resolution was adopted by the Federation in accordance with the provisions of the Kerala Co-operative Societies Act and Rules, 1969, and forwarded the same to the State Co-operative Election Commission, fixing the date of polling on 28.06.2017. There are 18 committee members to be elected which will constitute the committee in terms of Sec.28 of the KCS Act. 2 **W.P.(C) No.18310 of 2017** 3. However, the proposal was returned stating that in terms of the bye-law, the strength of the committee cannot exceed 21 in terms of Sec.28(1A) of the KCS Act. According to the petitioner, the reason given in Ext.P3 impugned order is incorrect, since the constitution of the Committee is by way of election, which will not result in exceeding the total strength of 21 as provided in Sec.28(1A) of the KCS Act. Therefore, according to the petitioner, Ext.P3 impugned order suffers from the vice of arbitrariness and illegality, which needs to be interfered with by this Court invoking the extraordinary jurisdiction conferred under Article 226 of the Constitution of India. 4. Second respondent has filed a counter affidavit refuting the allegations and statements and claims and demands contained in the writ petition. That apart, it is contended that, as provided under Clause 15(c)(xii) of the bye-laws of the Kerala State Co-operative Marketing Federation, only the Managing Director can file suit for and on behalf of the Federation. However, the writ petition is instituted by its Chairman in his personal capacity and therefore, the Managing Committee of the Federation is not 3 **W.P.(C) No.18310 of 2017** affected by Ext.P3 order and contends that the writ petition is to be dismissed at the threshold on the said ground alone. That apart, it is stated, as per Clause 10(a) of the approved bye-laws of the Federation, the Management of the Federation shall vest in a Board of Directors consisting of the following members: - _“i. One member from among delegates of the affiliated Societies in each Revenue District elected by the delegates of all affiliated societies._ - _ii. One member from SC/ST and three women members elected by the delegates of all affiliated societies without any Revenue District reservation in electing such member to the Board of Directors._ - _iii. Three nominees of Government._ - _iv. One nominee of NCDC._ - _v. One Managing Director to be appointed by the Board of Directors in consultation with Government._ - _vi. The Registrar of Co-operative Societies, Kerala.”_ 5. Therefore, the total number of members constituting the Board of Directors of the Federation will come to 24 in number. But, as per Sec.28 of the KCS Act, the General Body of the society shall constitute a committee for a period of 5 years in accordance with the bye-laws and entrust management of the affairs of the society to such committee. 4 **W.P.(C) No.18310 of 2017** That apart, Sec.28(1A) provides that notwithstanding anything contained in the bye-laws of a society, the number of members of the committee shall not be less than 7 and shall not exceed 15 in the case of Primary Co-operative Societies, and 21 in the case of all other types of Co-operative Societies. Therefore, so far as the Federation in question is concerned, it can have a committee with maximum strength of 21 members. But the bye-laws of the society is against the aforesaid provision. Accordingly, the 2nd respondent has returned the resolution adopted by the Federation stating the aforesaid reasons, since the bye-law is against Sec.13A of the Kerala Co-operative Societies Act. 6. However, the petitioner has a case that the society has adopted a resolution to amend the bye-law so as to contain the membership strength of the Committee to 21, the same is yet to be approved by the 2nd respondent after undergoing necessary formalities, as is envisaged under the KCS Act and Rules. However, petitioner is not having a case that Ext.P4 amendment proposed by the Committee has attained a finality after placing the same before the General Body and consequential ratification or approval by the 2nd **W.P.(C) No.18310 of 2017** 5 respondent. 7. Heard learned counsel for the petitioner and the learned Senior Government Pleader and perused the documents on record and the pleadings put forth by the respective parties. 8. The prime contention advanced by the learned counsel for the petitioner is that, the subject matter of the amendment sought will not in any manner interfere with Ext.P1 resolution adopted by the Society to conduct the election on 28.06.2017, since the nomination to the Committee takes place after the election and by that time, the amendment to the bye-law proposed as per Ext.P4 would attain finality, and thereby the Committee can be confined to a maximum strength of 21, including the nominees and representatives of the Government as well as other statutory organizations. 9. However, the same is stoutly opposed by the learned Senior Government Pleader, contending that as per Ext.P1 resolution adopted by the Federation, the strength of Board of Directors is shown as 24 and the quorum of the committee is shown as 7. Therefore, in accordance with the **W.P.(C) No.18310 of 2017** 6 provisions of Sec.28(1A) and in accordance with Sec.13A of the KCS Act, the resolution adopted cannot be sustained under law, being violative of the provisions of the Act. Therefore, the contention of the learned Senior Government Pleader is that, there is no manner of illegality, arbitrariness or unfairness in issuing Ext.P3 order, and therefore, the petitioner is not entitled to secure any reliefs by resorting to the discretionary jurisdiction conferred on this Court. 10. Having considered the rival submissions made across the Bar, I am of the considered opinion that by virtue of Sec.13A of the KCS Act, the bye-laws of all Societies shall be in accordance with the provisions of KCS Act and therefore, it is apparent that the bye-laws of the Federation in question is violative of Sec.28(1A), which prescribes a maximum limit of 21 members to the Managing Committee of a society like the Federation in question. Therefore, it is clear that the bye-law constituted by the Federation is not in terms of the provisions of the Kerala Co-operative Societies Act. Moreover, there is no dispute with respect to the same, since the Board of Directors of the Federation itself has drawn Ext.P4 resolution seeking amendment and as per Ext.P5, the General Body is convened **W.P.(C) No.18310 of 2017** 7 for the purpose of considering the said amendment on 17.06.2017. 11. Therefore, on a totality of the facts and circumstances and appreciating the law involved in the subject matter, it cannot be said that Ext.P3 order is suffering from any vice of arbitrariness or illegality, since the resolution adopted by the society as per Ext.P1 is against the provisions of the Kerala Co-operative Societies Act. When the statute prescribes a particular modality in respect of the formation of the bye-laws, it has to be so. Sec.13A apparently is brought to the statute book with the intention of bringing out a uniformity in the administration and management of the Co-operative Societies _vis-a-vis_ the provisions of the statute. Therefore, when a resolution is adopted to conduct the election overlooking the stipulation contained under Sec.28(1A) can never be said to be legalistic. That being the situation, I am of the considered opinion that Ext.P3 is not liable to be interfered with under Article 226 of the Constitution of India. 12. However, at this point of time, learned counsel for the petitioner submitted that, if a fresh resolution is to be drawn after the amendment is approved by the General Body, 8 **W.P.(C) No.18310 of 2017** by that time, the period of the committee will expire and necessary provisions shall be made so as to undertake the day-to-day administration of the Federation. In that view of the matter, I am of the considered opinion that, in the interest of justice, it is only appropriate that a direction is issued to constitute an Administrative Committee with the President and two other members from the existing Managing Committee in accordance with law, at the earliest possible time, so as to avoid any stalemate in the functioning of the Federation. There will be a further direction to complete the election process in accordance with law, at the earliest, and at any rate within two months from the date of receipt of a copy of this judgment. The writ petition is dismissed with the aforesaid observation. Sd/- **SHAJI P. CHALY JUDGE** St/06.06.2017