Sunilkumar S. v. State Co-operative Election Commission, Director of Industries, India Coffee Board Workers' Co-operative Society Limited, and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA,** ## **1944** ## **WP(C) NO. 31124 OF 2022** ## **PETITIONER/S:** SUNILKUMAR S., AGED 44 YEARS S/O.SOMAN PILLAI, SURESH BHAVAN,' PALLIPPURAM POST, CHERTHALA, PIN - 688 541, ALAPPUZHA DISTRICT. BY ADVS. M.SASINDRAN P.SHAHEED ## **RESPONDENT/S:** 1 THE STATE CO-OPERATIVE ELECTION COMMISSION . THIRUVANANTHAPURAM - 695 001. 2 THE DIRECTOR OF INDUSTRIES, VIKAS BHAVAN THIRUVANAHTAPURAM - 695 001. 3 INDIA COFFEE BOARD WORKERS CO-OPERATIVE SOCIETY LIMITED NO. 4227, VELIYANNUR, THRISSUR DISTRICT, PIN - 680 021, REPRESENTED BY ITS SECRETARY. 4 STATE OF KERALA - REPRESENTED BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.10.2022, THE COURT ON 12.10.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.31124 of 2022 -2- ## **JUDGMENT** Dated this the 12[th] day of October, 2022 The petitioner is a member of the third respondent Society. The last election to the Managing Committee of the third respondent was conducted on 19.11.2017 and hence, the term of the incumbent committee is due to expire on 19.11.2022. Therefore, the Committee adopted Ext.P1 resolution on 09.10.2022, requesting the State Co-operative Election Commission to conduct the next election on 30.10.2022. This writ petition is filed contending that the election to the Managing Committee cannot be conducted based on a resolution adopted by the Managing Committee alone, since Section 29(i)(ce) of the Kerala Co-operative Societies Act ('the Act' for short) mandates a declaration by the general body regarding the date of holding of its general body W.P.(C) No.31124 of 2022 -3- meeting and conduct of elections when due. 2. Adv.M.Sasindaran, learned Counsel for the petitioner, contended that under the Scheme of the Co-operative Societies Act, the final authority is the general body of members. Therefore, it is for the general body to decide as to when the next election of its representatives (Managing Committee members), is to be conducted. If majority of the members are of the opinion that it would be conducive to have a departmental administrator rather than an elected committee, the general body can even decide not to hold elections. In any event, Section 29(i)(ce) being specific to the effect that the general body shall be held for the purpose of declaration regarding date of holding the general body and conduct of elections, Ext.P1 resolution of the Managing Committee taken without following the above mandate cannot be acted upon. It is contended that even though ## W.P.(C) No.31124 of 2022 -4- Rule 35A(1) of the Co-operative Societies Rules ('the Rules' for short) stipulates that the committee shall meet at least 60 days prior to the date of expiration of its term and pass a resolution fixing the date, time and place for the conduct of the election to the new committee, such resolution can be taken only after general body declaring the date of election. It is contended that even if there is dichotomy between the Act and the Rules, the primary legislation will prevail. In support of this contention, reliance is placed on the decision of the Apex Court in _**Kailash v. Nanhku [(2005) 4**_ _**SCC 480],**_ and of this Court in _**Anilkumar K. and**_ ## _**another v The Managing Director, Consumered and**_ ## _**others [2015 KHC 709]**_ . 3. Senior Advocate, George Poonthottam appearing for the third respondent Society contended that the attempt through the writ ## W.P.(C) No.31124 of 2022 -5- petition is only to thwart the election and thereby provide for administrator rule in the society. It is pointed out that although Ext.P1 resolution was taken on 14.09.2022 and placed before the General Manager and Functional Registrar immediately thereafter, the resolution was not forwarded to the State Co-operative Election Commission/first respondent. As a result, the proposed election schedule was upset. Hence, the Committee of the Society was compelled to pass a second resolution, proposing to conduct the polling on 30.10.2022. Even the second resolution having not been forwarded to the first respondent, the Society had to approach this Court in W.P.(C) No.29953 of 2022. In spite of filing of that writ petition, the State Cooperative Election Commission has been dilly dallying in the matter. Therefore, it is evident that the instant writ petition has been filed with the only objective of preventing a timely W.P.(C) No.31124 of 2022 -6- election. 4. On merits, it is contended that as per Section 28 of the Co-operative Societies Act, the general body has to constitute a committee for a period of five years for managing the affairs of the society. Rule 35A(1) require the Committee to convene a meeting 60 days prior to the date of expiration of the term and pass a resolution fixing the date, time and place for the conduct of the next election. Going by the objective of the Co-operative Societies Act and its scheme, as evident from Section 28 and Rule 35A, it is essential to take timely steps for conduct of elections, so that the affairs of the Society is managed by a democratically elected committee. 5. It is contended that the declaration mentioned in Section 29(i)(ce) cannot be termed as mandatory, since no consequence is provided under the Act and Rules. Finally, it is submitted that no election to the Managing Committee of the ## W.P.(C) No.31124 of 2022 -7- Co-operative Societies in the State is conducted on the basis of a declaration by the general body as stipulated in Section 29(i)(ce). 6. Going by the undisputed facts, the Managing Committee of the Society had passed the first resolution for conduct of election on 18.07.2022. The petitioner, who claims to be a member interested in the affairs of the society, is seen to have filed a representation before respondents 1 and 2 only on 22.09.2022. As such, I find _prima facie_ merit in the contention regarding lack of _bona fides_ in filing the writ petition. 7. As regards the legal contentions, Section 29 mandates the convening of the general body of the society within six months of the close of the financial year. One among the purpose of convening the general body is to declare the date of holding of its general body meeting and conduct of elections when due. Therefore, a doubt ## W.P.(C) No.31124 of 2022 -8- arises as to whether there should be a declaration regarding date of conduct of election in every annual general body meeting. That definitely cannot be the purport of the provision. More so, since Section 28 provides for constitution of a Committee for five years and Rule 35A require the incumbent committee to pass a resolution regarding the next election 60 days prior to the expiry of its term. In this regard, Rule 39(3) which mandates that election of all members of the Committee shall be held before the expiry of the term of office of the existing committee, also assumes relevance. 8. The other important factor is that the statute does not provide any consequence for failure to declare the due date of election. It has been held in a catena of decisions that a provision ought to be treated as directory when no consequence is provided (see _**Administrator,**_ W.P.(C) No.31124 of 2022 -9- ## _**Municipal Committee Charkhi Dadri v. Ramji Lal**_ _**Bagla [(1995) 5 SCC 272]**_ ). Further, as held in _**Amardeep Singh v. Harveen Kaur [(2017) 8 SCC**_ _**746]**_ , for determining whether a provision is mandatory or directory, the language alone is not decisive and court must have regard to context, subject matter and object of the provision. Undoubtedly, the object of the Co-operative Societies Act is to organise Co-operative Societies as self-governing democratic institutions. On a purposive interpretation of the provision, the mandate of Section 28 read along with Rule 35A(i) outweighs the declaration under Section 29(i)(ce). Being so, the question as to whether the primarily legislation will prevail over the subordinate legislation loses its significance. 9. The contention that the general body can even decide not to declare the due date of W.P.(C) No.31124 of 2022 -10- election so as to effectuate administration by an officer of the department, is difficult to digest. In my opinion, if majority members of the general body is against the incumbent managing committee, they should elect a new managing committee consisting of members of their choice in the next election, rather than paving way for departmental rule. For the aforementioned reasons, the writ petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.31124 of 2022 -11- ## **APPENDIX OF WP(C) 31124/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE RESOLUTION NO.271 DATED 14.09.2022 THE COMMITTEE OF THE SOCIETY. Exhibit P2 A TRUE COPY OF THE REPORT DATED 19.03.2022 SUBMITTED BY THE DEPUTY REGISTRAR, DISTRICT INDUSTRIES CENTRE. Exhibit P3 A TRUE COPY OF NOTICE DATED 07.04.2022 ISSUED BY THE 2ND RESPONDENT TO THE EXISTING COMMITTEE. Exhibit P4 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 22.09.2022. Exhibit P5 A TRUE COPY OF REPRESENTATION DATED 22.09.2022 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.