Sathyakumar W. & Others v. Deputy Director, Dairy Development & Mulluvila Sarvodaya Milk Supplies Co-operative Society Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 03RD DAY OF JUNE 2019 / 13TH JYAISHTA, 1941** ## **WP(C).No. 14045 of 2018** ## **PETITIONERS:** - **1 SATHYAKUMAR.W RESIDING AT ASHIRVAD, INJIPULVILA, MULLUVILA P.O, THIRUVANANTHAPURAM.** **PRESIDENT, MULLUVILA SARVODAYA MILK SUPPLIES COOPERATIVE SOCIETY, LTD NO. 4149,(UNDER ORDERS OF SUPERSESSION),THADATHIKULAM, KANJIRAMKULAM, THIRUVANANTHAPURAM-695 524.** **2 SASIDHARAN Y RESIDING AT RAJ NIVAS, KAKKALAMKANAM, KANJIRAMKULAM P.O, THIRUVANANTHAPURAM,** **MANAGING COMMITTEE MEMBER OF MULLUVILA SARVODAYA MILK SUPPLIES CO-OPERATIVE SOCIETY, LTD NO. 4149,(UNDER ORDERS OF SUPERSESSION),THADATHIKULAM, KANJIRAMKULAM, THIRUVANANTHAPURAM-695 524.** **3 ALEX ROY.L RESIDING AT ALEX BHAVAN, MULLUKAD, MULLUVILA P.O, THIRUVANANTHAPURAM, MANAGING COMMITTEE MEMBER OF MULLUVILA SARVODAYA MILK SUPPLIES CO-OPERATIVE SOCIETY, LTD NO. 4149,(UNDER ORDERS OF SUPERSESSION),THADATHIKULAM, KANJIRAMKULAM, THIRUVANANTHAPURAM-695 524.** **4 CISILET BAI RESIDING AT SAJIN NIVAS, KAKKALAMKANAM, KANJIRAMKULAM P.O, THIRUVANANTHAPURAM, MANAGING COMMITTEE MEMBER OF MULLUVILA SARVODAYA MILK SUPPLIES CO-OPERATIVE SOCIETY, LTD NO. 4149,(UNDER ORDERS OF SUPERSESSION),THADATHIKULAM, KANJIRAMKULAM, THIRUVANANTHAPURAM-695 524.** - **5 AMBILI. N.** **RESIDING AT S.A NIVAS, KAKKALAMKANAM, KANJIRAMKULAM P.O,THIRUVANANTHAPURAM MANAGING COMMITTEE MEMBER OF MULLUVILA SARVODAYA MILK SUPPLIES CO-OPERATIVE SOCIETY, LTD NO. 4149,(UNDER ORDERS OF SUPERSESSION),THADATHIKULAM, KANJIRAMKULAM, THIRUVANANTHAPURAM-695 524.** **WP(C).No. 14045 of 2018** **2** **6 SHIBU Y. RESIDING AT ANAMARAMVALICHA VADAKKARIKU VEEDU, KANJIRAMKULAM P.O, THIRUVANANTHAPURAM,MANAGING COMMITTEE MEMBER OF MULLUVILA SARVODAYA MILK SUPPLIES CO-OPERATIVE SOCIETY LTD NO. 4149, (UNDER ORDERS OF SUPERSESSION),THADATHIKULAM, KANJIRAMKULAM, THIRUVANANTHAPURAM-695 524. 7 MANJU S.W RESIDING AT MATHA BHAVAN, THADATHIKULAM,KANJIRAMKULAM P.O, THIRUVANANTHAPURAM,VICE PRESIDENT, MULLUVILA SARVODAYA MILK SUPPLIES CO-OPERATIVE SOCIETY, LTD NO. 4149,(UNDER ORDERS OF SUPERSESSION), THADATHIKULAM, KANJIRAMKULAM, THIRUVANANTHAPURAM-695 524. 8 SIVANANDAN RESIDING AT VADAKKECHONDEPPATHU HOUSE, THADATHIKULAM,KANJIRAMKULAM P.O, THIRUVANANTHAPURAM MANAGING COMMITTEE MEMBER OF MULLUVILA SARVODAYA MILK SUPPLIES CO-OPERATIVE SOCIETY LTD NO. 4149,(UNDER ORDERS OF SUPERSESSION),THADATHIKULAM, KANJIRAMKULAM, THIRUVANANTHAPURAM-695 524.** **BY ADV. SRI.P.N.MOHANAN** ## **RESPONDENTS:** **1 THE DEPUTY DIRECTOR, DAIRY DEVELOPMENT PATTOM, THIRUVANANTHAPURAM-695 004. 2 MULLUVILA SARVODAYA MILK SUPPLIES CO-OPERATIVE SOCIETY. LTD NO.4149. REPRESENTED BY SECRETARY/ADMINISTRATOR, THADATHIKULAM, KANJIRAMKULAM, THIRUVANANTHAPURAM-695 524.** **WP(C).No. 14045 of 2018** **3** **3 V.B RAJAN VADAKKECHUNDAYAPPATTU, PUTHENVEEDU, THADATHIKULAM,KANJIRAMKULAM, THIRUVANANTHAPURAM-695 524.** **BY ADV. SRI.M.R.SASITH** **SRI.BIMAL K.NATH-SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 14045 of 2018** **4** ## **C.R** ## **JUDGMENT** Ingenuity is not novel in litigation and therefore, Courts generally are seldom taken by surprise by it; but the contentions of the petitioners in this case tests it: They assert that a person, whose primary membership in a Cooperative Society, registered under the Provisions of the Kerala Co-operative Societies Act, has been terminated, would nevertheless be entitled to continue as a member of its Managing Committee, to which he had been elected while being a member of the Society, unless he/she is removed from such position expressly by the Registrar of Co-operative Societies by invoking Rule 44(3) of the Kerala Co-operative Societies Rules. 2. To put it in perspective, the petitioners contend that they are entitled to function as the members of the Managing Committee of the Society involved in this case, until such time as they are removed from such position by **WP(C).No. 14045 of 2018** **5** the Registrar of Co-operative Societies through an order issued by him under Rule 44(3) of the Kerala Co-operative Societies Rules, even though they may have been terminated from the primary membership of the Society. Interestingly, the petitioners rely for support on the judgment of this Court in **Jayendrakumar v. Joint Registrar of Co-operative Societies(General)** [2019 (2) KLT 671]. 3. Inventive as it may seem, the above contentions of the petitioners do not find favour with me and I will state the reasons for such disapproval after the unexpendable facts are narrated. 4. The petitioners, who assert to be members of the second respondent – “Mulluvila Sarvodaya Milk Supplies Cooperative Society”; as also to be members of its Managing Committee, impugn Exhibit–P14 order of the Deputy Director of Diary Development, who is the functional Joint Registrar with respect to the said Society, terminating their primary membership of the Society and consequently **WP(C).No. 14045 of 2018** **==> picture [8 x 9] intentionally omitted <==** removing them from the membership of its Managing Committee. 5. The petitioners allege that they were not given sufficient opportunity of proving their case that they are residing within the area of operation of the Society which, according to them, is the sole allegation against them; and that the Deputy Director has, in haste, issued Exhibit–P14 with a calculated design of removing them from the Managing Committee; thus enabling a Part Time Administrator to be appointed under the provisions of the Section 33 of the KCS Act. 6. The petitioners submit that, as is clear from Exhibits – P6, P7 and P8, they are all residing within the area of operation of the Society and therefore, that the foundational factual basis of Exhibit-P14 is untenable and that the said order is, resultantly, rendered without legs to stand on. 7. Sri.P.N.Mohanan, the learned Counsel appearing for the petitioners, in addition to the afore contentions, also **WP(C).No. 14045 of 2018** **7** impelled certain other assertions based on Rule 44 of the Kerala Co-operative Societies Rules(KCS Rules for short) and Section 33 of the Kerala Co-operative Societies Act(KCS Act for short). According to him, Exhibit – P14 was preceded by a notice, a copy of which has been produced as Exhibit – P15, which clearly indicates that the enquiry by the Deputy Director was based only on Rule 16(4) of the KCS Rules; and therefore, that the conclusions and directions in Exhibit–P14, which disqualifies the petitioners as members of the Managing Committee under Section 44(1) (j) of the KCS Rules and in then appointing a Part Time Administrator under Section 33 of the KCS Act, are wholly illegal and impermissible, because none of them were issued with a prior notice under Rule 44(3) of the KCS Rules; and therefore that, going by the judgment of this Court in **Jayendrakumar** ( _supra)_ , their removal as members of the Managing Committee is illegal and unconstitutional. 8. Sri.Bimal K Nath, the learned Senior Government **WP(C).No. 14045 of 2018** **8** Pleader, refuted the afore contentions of Sri.P.N.Mohanan by asserting that there was no legal requirement for the petitioners being expressly removed from the membership of the Managing Committee under Rule 44 of the KCS Rules or in issuing them any notice under Section 33 of the KCS Act before appointing a Part Time Administrator, because they have been removed from the primary membership of the Society itself and consequently that their membership in the Managing Committee, which is only a facet of their membership in the Society, would automatically cease. He asserts, therefore, that the contentions that Exhibit–P14 is vitiated because notices under Rule 44(3) of the KCS Rules or under Section 33 of the KCS Act have not been issued, would be of no relevance and without any statutory or legal support. 9. Sri.M.R.Sasith, the learned counsel appearing for the 3[rd] respondent, submits that it was his client's complaint that had lead to Exhibit – P14 order and he contends that the said order is irreproachable and without **WP(C).No. 14045 of 2018** **9** fault. According to the learned counsel, the Deputy Director has meticulously considered all the relevant and germane aspects fully; and therefore, that the petitioners do not obtain _locus_ to challenge it before this Court. 10. I have critically analysed the submissions made before me as afore and I am persuaded to the view that though I have find substantial force in the submissions of Sri.P.N.Mohanan with respect to the removal of the petitioners from the primary membership of the Society, I am afraid that I cannot offer favour to his corollary submissions based on Section 33 or Rule 44(3) of the KCS Act and Rules respectively. 11. I say as above because, a reading of Exhibit–P14 order would indicate that the only reason why the petitioners have been removed as members of the Society, under Rule 16(4) of the KCS Rules, is because they did not produce “sufficient” documents in substantiation of their assertion that they are residing within the area of its operation. I am firm in my mind that it is not sufficient for a **WP(C).No. 14045 of 2018** **10** Statutory Authority in so concluding as he has done because the removal of the petitioners from the primary membership of the Society would visit them with severe consequences; and therefore, sufficient and reasonable opportunity ought to have been given to them to prove their case through relevant and germane materials, rather than merely recording that because they have not produced any records, they would automatically cease to be the members of the Society. 12. That said, however, the allegations of the petitioners that they were not given notices under Section 33 of the KCS Act and under Rule 44(3) of the KCS Rules, before they were removed as members of the Managing Committee and before a Part Time Administrator was appointed, would be of no consequence or relevance because had they been validly removed from the primary membership of the Society, then all the attributes of such membership, which includes their position in the Managing Committee, would also automatically cease on the day they **WP(C).No. 14045 of 2018** **11** are removed from such membership. 13. Further, the petitioners' contention, hinged on the declarations made by this Court in **Jayendrakumar** _(supra),_ would also be of no avail to them because the said judgment was delivered in the context of the removal of a person as a member of the Managing Committee of a Society, consequent to him acquiring a disqualification to continue as such under Rule 44(1) of the KCS Rules; and this Court held that in such cases, even if the person has acquired any such disqualification, his/her membership in the Managing Committee would not cease unless the Registrar of Co-operative Societies remove him/her under the prescriptions of Rule 44(3) of the KCS Rules, which enjoins the said Authority to issue a prior notice to such person before he/she is removed. However, there was no allegation against the petitioners in that case, as is evident from the judgment, that they had been removed from the membership of the Society; and on the contrary, it was unequivocally admitted that they were continuing as its **WP(C).No. 14045 of 2018** **12** members . 14. In contra-distinction, in the case at hand, it is alleged that the petitioners have been removed even as primary members of the Society and hence it is incontestable that the declarations in **Jayendrakumar** _(supra)_ would have no bearing on the evaluation of the facts and contentions presented in this case. 15. I, therefore, cannot find favour with their submissions, that unless they were given prior notices and action completed under Rule 44(3) and Section 33 of the KCS Rules and Act respectively, they would continue to be Managing Committee members even if they have been properly removed from the primary membership of the Society, since it is untenable and incapable of obtaining the imprimatur of this Court. 16. I am certain that had the petitioners been removed as per law from the primary membership of the Society, then they would automatically and forthwith cease to be members of the Managing Committee _de-hors_ the **WP(C).No. 14045 of 2018** **13** provisions of Rule 44 (3) of the KCS Rules, since the said Rule begins by prescribing that _“no member of the society shall be eligible for being elected, or appointed as a member of committee of the society,”_ if he suffers from the disqualification enumerated therein; thus making it limpid that the said provision applies only to a primary member and no one else. 17. In the afore circumstances and in the above perspective, I order this Writ Petition and set aside Exhibit – P14 since I cannot find the removal of the petitioners from the primary membership of the Society to have been done in terms of law; and I consequently, direct the Deputy Director – respondent No.1, to reconsider the complaint of the 3[rd] respondent, after affording necessary opportunity to him as well/as to the petitioners and to then decide whether the petitioners are liable to be removed from the primary membership of the Society, adverting to all the materials and documents that may be produced before the said Authority by the parties, in terms of law. **14** ## **WP(C).No. 14045 of 2018** 18. The afore exercise shall be completed by the Deputy Registrar as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Needless to say, until such time as the afore exercise is completed, the present status quo with respect to the management of the Society will continue and the Part Time Administrator or the Administrative Committee, who is/are in charge of the affairs of the Society, will continue to be in such position, until orders are issued by the Competent Authority in terms of this judgment. This Writ Petition is thus ordered. **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** PV **WP(C).No. 14045 of 2018** **15** ## **APPENDIX** ## **PETITIONERS'EXHIBITS:** **EXHIBIT P1** - **A TRUE COPY OF THE FINAL VOTERS LIST PUBLISHED BY ELECTORAL OFFICER** **EXHIBIT P2 A TRUE COPY OF THE REPORT OF THE SECOND RESPONDENT DATED 14-05-2014** **EXHIBIT P3 A TRUE COPY OF THE RELEVANT PORTION OF THE BYE-LAW** - **EXHIBIT P4 A TRUE COPY OF THE PETITION DATED 26-11-2014 OF THE THIRD RESPONDENT** - **EXHIBIT P5 A TRUE COPY OF THE NOTICE DATED 18-02-2017 ISSUED BY THE FIRST RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE ADHAR ISSUED BY THE GOVERNMENT OF INDIA IN RESPECT OF THE SECOND PETITIONER** - **EXHIBIT P7 A TRUE COPY OF THE ADHAR ISSUED BY THE GOVERNMENT OF INDIA IN RESPECT OF THE FOURTH PETITIONER** - **EXHIBIT P8 A TRUE COPY OF THE ADHAR ISSUED BY THE GOVERNMENT OF INDIA IN RESPECT OF THE FIFTH PETITIONER** - **EXHIBIT P9 A TRUE COPY OF THE RENT DEED DATED 27-10-2014 IN RESPECT OF THE FIRST PETITIONER** - **EXHIBIT P10 A TRUE COPY OF THE RENT DEED DATED 27-10-2014 IN RESPECT OF THE THIRD PETITIONER.** - **EXHIBIT P11 A TRUE COPY OF THE OBJECTION DATED 11-05-2017 FILED BY THE PETITIONERS** - **EXHIBIT P12 A TRUE COPY OF THE ORDER DATED 12-05-2017 OF THE FIRST RESPONDENT** **16** ## **WP(C).No. 14045 of 2018** **EXHIBIT P13** **A TRUE COPY OF THE STATEMENT DATED 02-02-2018 FILED BY THE PETITIONERS** **EXHIBIT P14 A TRUE COPY OF THE ORDER DATED 15-03-2018 OF THE FIRST RESPONDENT. EXHIBIT P15 A TRUE COPY OF THE SHOW CAUSE NOTICE** **A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 10.01.2018 OF THE FIRST RESPONDENT** **RESPONDENTS'EXHIBITS:** **EXHIBIT R3(1) TRUE COPY OF THE RELEVANT PORTION OF BYE-LAW OF THE 2ND RESPONDENT SOCIETY** **EXHIBIT R3(2) TRUE COPY OF COMPLAINT GIVEN BY THE RESPONDENT BEFORE THE FIRST RESPONDENT EXHIBIT R3(3) TRUE COPY OF THE REPLY GIVEN BY SECRETARY TO PETITIONERS EXHIBIT R3(4) TRUE COPY OF THE LIST OF THE VOTERS LIST IN LEGISLATIVE ASSEMBLY** **\\TRUE COPY//** **PA TO JUDGE** **PV**