S. Sheeja and Viswan V.V. v. Director of Dairy Development/ Registrar of Dairy Co-Operatives; Kerala Co-operative Milk Marketing Federation Ltd. (MILMA); Thiruvananthapuram Regional Co-operative Milk Producers Union Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY,THE 22ND DAY OF JANUARY 2019/2ND MAGHA, 1940** ## **WP(C).No. 1801 of 2019** ## **PETITIONERS:** - 1 **S. SHEEJA,AGED 44 YEARS PADIKHUMAMPUZHA VEEDU, OTTOOR, OONGODU P. O., THIRUVANANTHAPURAM** - 2 **VISWAN V.V., VALIYAVEETTIL ARTHUNGAL PO, THIRUVANANTHAPURAM** **BY ADVS. SRI.B.S.SWATHY KUMAR REMYA RATNAM.P.R SMT.ANITHA RAVINDRAN SMT.M.G.AISHWARYA SRI.HARISANKAR N UNNI S.SREEKUMAR** **RESPONDENTS:** - **1 THE DIRECTOR OF DAIRY DEVELOPMENT/REGISTRAR OF DAIRY CO-OPERATIVES DIRECTORATE OF DIARY DEVELOPMENT, PATTOM, THIRUVANANTHAPURAM - 695 004** - **2 KERALA CO-OPERATIVE MILK MARKETING FEDERATION LTD. NO.4345,** - **(MILMA), MILMA BHAVAN, PATTOM PALACE P. O., THIRUVANANTHAPURAM - 695 004 REPRESENTED BY ITS MANAGING DIRECTOR** - **3 THE THIRUVANANTHAPURAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. NO.T. 177 (D) APCOS KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004. REPRESENTED BY ITS MANAGING DIRECTOR** ## **SRI MOHAMMED HASHIM, SPECIAL GOVERNMENT PLEADER SMT LATHA ANAND, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.1801/2019 -2- ## **JUDGMENT** The 1[st] petitioner is the President of Ottoor Ksheerolpadaka Sahakarana Sangham Ltd. and the 2[nd] petitioner is the President of Thiruvizha Beach Ksheerolpadaka Sahakarana Sangham Ltd., which are primary societies affiliated to Thiruvananthapuram Regional Cooperative Milk Producers Union Ltd., the 3[rd] respondent herein. They have filed this writ petition under Article 226 of the Constitution of India seeking a declaration that Ext.P8 order dated 10.01.2019 of the 1[st] respondent Director of Dairy Development is legally unsustainable and a writ of certiorari to quash the same. The petitioners have also sought for a declaration that the nomination as per Ext.P3 resolution to the Board of Directors of the 2[nd] respondent Kerala Co-operative Milk Marketing Federation Ltd. is perfectly sustainable as per sub-section (1J) of Section 28 of the Kerala Co-operative Societies Act and the acceptance of nomination as per Ext.P4 resolution, which is one under clause 22.1.v of Ext.P2 bye-laws of the 2[nd] respondent Federation, is legally sustainable and they are entitled to continue as the members of the Board of Directors of the 2[nd] respondent Federation. The further relief sought for is a writ of mandamus commanding respondents 1 and 2 to allow the petitioners to continue as members of the Board of W.P.(C)No.1801/2019 -3- Directors of the 2[nd] respondent Federation. 2. On 21.01.2019, when this writ petition came up for admission as 'today motion', the learned Senior Government Pleader for the 1[st] respondent and the learned Standing Counsel for respondents 2 and 3 sought time to get instructions and accordingly, the matter is listed today for further consideration. 3. Heard the learned counsel for the petitioners, learned Special Government Pleader appearing for the 1[st] respondent Director of Dairy Development and also the learned Standing Counsel for respondents 2 and 3. 4. The petitioners are challenging Ext.P8 order dated 10.01.2019 issued by the Director of Dairy Development, which is one issued in exercise of the powers of Registrar under Section 66A of the Kerala Co-operative Societies Act, whereby the 2[nd] respondent Federation is directed to ensure that the petitioners are not permitted to participate in the meeting of the Board of Directors of the Federation as the nominated members. In this writ petition it is contended that Ext.P8 order passed by the 1[st] respondent is violative of the provisions of the Kerala Co-operative Societies Act and the rules made thereunder and also the relevant provisions of the bye-laws of the 2[nd] respondent Federation, which is placed on record as Ext.P2 and W.P.(C)No.1801/2019 -4- the bye-laws of the 3[rd] respondent Union, which is placed on record as Ext.P1. The petitioner would also contend that the 1[st] respondent has issued Ext.P8 without understanding the provisions of the Act and the bye-laws. 5. The fact that the petitioners were served with copy of Ext.P8 order along with Ext.P7 covering letter on 10.01.2019 is not in dispute. For reasons best known to the petitioners, they have chosen to file this writ petition before this Court only on 21.01.2019 as 'today motion', seeking an interim order to continue as members of the of the Board of Directors of the 2[nd] respondent Federation and also to participate in the election to the post of Chairman, which is scheduled to be held today (22.01.2019). 6. One of the grounds raised in this writ petition is that Section 66A of the Kerala Co-operative Societies Act is one empowering the Registrar to issue general directions and that does not cloth him with the power to interfere in the internal matters of the 2[nd] respondent Federation and the 3[rd] respondent Union and as such, the power under Section 66A cannot be invoked to interfere in the matters of election and nomination. 7. In **Harilal R.G. v. Joint Registrar of Co-operative Societies (General) and others (2018 (5) KHC 902)** , a Division W.P.(C)No.1801/2019 -5- Bench of this Court held that the Joint Registrar was well within his powers under Section 66A of the Kerala Co-operative Societies Act to direct the Society to recall the laminated identity cards with bar codes and issue fresh identity cards. The Division Bench ordered that, election would be vulnerable to challenge if laminated identity cards with bar code are used and the interference of the Joint Registrar by issuing the order impugned in the writ petition was timely. 8. Section 83 of the Co-operative Societies Act deals with appeals to other authorities. As per clause (j) of sub-section (1) of Section 83, an appeal shall lie against any order made by any person exercising all or any of the powers of the Registrar. As per sub-section (2) of Section 83, an appeal under sub-section (1) of that Section shall be made within 60 days from the date of order or decision to the Government, if the order or decision was made by the Registrar; and to the Registrar, in other case. As per sub-section (2), the Government or the Registrar, as the case may be, shall pass such orders on such appeal as they or he may think fit. ## 9. In **Commissioner of Income Tax V. Chhabil Das Agarwal** **[(2014) 1 SCC 603]** the Apex Court reiterated that, nonentertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule of W.P.(C)No.1801/2019 -6- self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 10. Ext.P8 order passed by the 1[st] respondent in exercise of the powers of the Registrar can be challenged before the Government by invoking the statutory remedy under Section 83(1)(j) of the Act. Moreover, if there is any dispute in the election to the post of Chairman, such dispute can very well be raised by invoking the provisions under Section 69 of the Act by approaching the Cooperative Arbitration Court, within the time limit specified in subsection (3) of Section 69 of the Act. 11. Having considered the submissions made by the learned counsel on both sides, this Court finds that no interference is warranted on Ext.P8 order, invoking the writ jurisdiction of this Court W.P.(C)No.1801/2019 -7- under Article 226 of the Constitution of India. 12. In such circumstances, without prejudice to the right of the petitioner to challenge Ext.P8 order by invoking the statutory remedy available under Section 83(1)(j) of the Act and also the right of the petitioners to raise any dispute in connection with the conduct of election to the post of Chairman of the 2[nd] respondent Federation, before the Co-operative Arbitration Court, by invoking the provisions under Section 69 of the Act, subject to the time limit specified in subsection (3) of Section 69, this writ petition is dismissed. All legal and factual contentions raised by the petitioners are left open. Sd/- **ANIL K. NARENDRAN JUDGE** dsn W.P.(C)No.1801/2019 -8- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE BYELAWS OF THE 3RD RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE BYELAWS OF THE 2ND RESPONDENT** **EXHIBIT P3 TRUE COPY OF THE RESOLUTION NO.1109 DATED 27.09.2018 OF THE BOARD OF DIRECTORS OF THE 3RD RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE RESOLUTION NO.1182 DATED 17.12.2018** - **EXHIBIT P5 TRUE COPY OF THE MINUTES OF THE MEETING DATED 26.12.2018 OF THE 2ND RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION ON.P.E.R.100/ 98/2451 DATED 03.01.2019 OF THE 2ND RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION ON.P.E.R.100/ 98/2525 DATED 10.01.2019** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.C1/19231/2018 DATED 10.01.2019 OF THE 1ST RESPONDENT** - **RESPONDENTS' EXTS: NIL** ## **TRUE COPY** **P.S. TO JUDGE**