T. Gopakumaran Nair v. The Rassalpuram Ksheerolpadaka Sahakara Sangam Ltd. and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ## **`WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945`** ## **`WP(C) NO. 7656 OF 2024`** ``` PETITIONER: ``` ``` T.GOPAKUMARANNAIR AGED64YEARS S/O.THANKAPPANNAIR,MADHAVAMANDIRAM,ERUTHEAVUR, RASSALPURAMP.O,VIABALARAMAPURAM,THIRUVANANTHAPURAM DISTRICT,PIN-695501 ``` ``` BYADVS. ARJUNRAGHAVAN C.P.SABARI ``` ## **`RESPONDENTS:`** - **`1 THE RASSALPURAM KSHEEROLPADAKA SAHAKARANA SANGAM LTD. NO.T 136, (D) APCOS REPRESENTED BY ITS SECRETARY, RASSALPURAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695501`** - **`2 THE ADMINISTRATIVE COMMITTEE RASSALPURAM KSHEEROLPADAKA SAHAKARANA SANGAM LTD. NO.T 136, (D) APCOS, REPRESENTED BY ITS CONVENER, RASSALPURAM P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695501`** - **`3 DAIRY EXTENSION OFFICER NEMAM BLOCK, MALAYANKIL PO, THIRUVANANTHAPURAM DISTRICT, PIN - 695571`** - **`4 THE DEPUTY DIRECTOR DAIRY DEVELOPMENT OFFICE, PATTOM, THIRUVANANTHAPURAM DISTRICT, PIN - 695004`** - **`5 THE STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY, 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, PIN - 695033`** ``` BYADVS. R.T.PRADEEPFORR2 SANDRAS.KUMAR(K/001254/2021) ``` ``` WP(C)NO.7656OF2024 ``` ``` 2 ``` ``` ABINP.SHAJU(K/000957/2024) SURAJS.KUMAR(K/00650/2024) NIRANJANT.PRADEEP(K/001073/2024) ``` ``` SRI.C.M.NAZAR,STANDINGCOUNSELFORSTATE CO-OPERATIVEELECTIONCOMMISSION ``` ## **`SRI. P.M. SHEMEER, GP`** ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 13.03.2024,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` ``` WP(C)NO.7656OF2024 ``` ``` 3 ``` ## **JUDGMENT** This writ petition is filed seeking to quash Ext.P10 order issued by the 4th respondent by which the part-time administrator appointed in terms of Ext.P6 order issued by the 4th respondent was withdrawn, and the administrator was replaced by an Administrative Committee consisting of persons, who are not members of the society. The prayer essentially is for a direction to the 4th respondent to constitute an administrative committee comprising of the members of the 1st respondent Society till elections are held. 2. The petitioner states that the 1st respondent is an Anand Pattern Co-operative Society functioning since 1960 and he is the former President of the society. According to the petitioner, due to the lapses on the part of the former Secretary, who retired on 31.05.2023, the expiry of the term of the committee was noted as 31.12.2023 instead of 31.12.2024. It is stated that noting that the term had expired, a resolution was taken by the former Managing Committee requesting the Department to appoint a part-time administrator so as to avoid an administrative stalemate. Based on Ext.P5 resolution, the 4th respondent appointed the 3rd respondent as part-time administrator with a further direction to conduct the election ``` WP(C)NO.7656OF2024 ``` ``` 4 ``` promptly. The 3rd respondent, after assuming charge as part-time administrator, took the resolution to conduct an election to be held on 08.04.2023 as per Ext. P8 notification. The petitioner states that when the petitioner received the information that the part-time administrator would be replaced by an administrative committee consisting of outsiders, he submitted Ext.P9 representation. According to the petitioner, Ext.P10 order has now been issued on 23.02.2024 by the 4th respondent, replacing the part-time administrator with an administrative committee consisting of persons who are not even members of the society. It is further contended that the persons who have now been appointed are not even dairy farmers. It is asserted that the action on the part of the 4th respondent in appointing outsiders in an arbitrary exercise of power and is, therefore illegal as held in Ext.P11 and Ext.P12 judgments and P13 order passed in various writ petitions. It is on these assertions that this writ petition is filed seeking the following reliefs:- - “i) to issue a writ of certiorari calling for the records, leading to the issuance of Ext. P10 and quash the same; - ii) to issue a writ of mandamus or any other appropriate writ of direction, direction the 4th respondent to constitute an administrative committee consisting of President and two members of former managing committee to manage the affairs of the 1st respondent society, till election is held as stipulated in Ext.P8 notification;” ``` WP(C)NO.7656OF2024 ``` ``` 5 ``` 3. Sri. Arjun Raghavan, the learned counsel appearing for the petitioner, submitted that the Division Bench of this Court had deprecated the practice of appointing non-members when there are competent persons in the co-operative society. It is submitted that it has been held that the exercise of powers under Section 33(1)(b) of the Kerala Co-operative Societies Act (for short, ‘the KCS Act’) is not an arbitrary or fashionable discretion, but it is to be exercised on core principles, one of which would be to avoid the administration of society by non-members, even on an adhoc basis. The learned counsel further points out that the society is one of the best-functioning societies in the State, and the official respondents have no case that any proceedings have been initiated against the 1st respondent alleging any provisions of the Act, Rules or the bye-laws. 4. The learned Government Pleader would oppose the submissions. It is submitted that the appointment of the Administrative Committee is an action within the prerogative of the Registrar concerned and the same cannot ordinarily be interfered with by the writ court unless it is shown that it is exercised in a perverse manner. Reliance is placed on the judgment rendered by a Division Bench of this Court in the **Managing Committee and Others v. Kerala State Co-operative Election** ``` WP(C)NO.7656OF2024 ``` ``` 6 ``` **Commission** (Neutral Citation No. 2018:KER:59236) to substantiate her contention. 5. Sri. R.T. Pradeep, the learned counsel appearing for the second respondent, submitted that the precedents relied on by the petitioner were rendered in different factual scenarios. It is pointed out that the election is scheduled to be held on 08.04.2024 and no purpose would be served in interfering with the order at this stage. It is urged that there being no allegations against the committee concerned, the assertions made by the petitioner are only to be rejected. 6. I have considered the submissions advanced and gone through the records and I find that it is based on Ext. P5 resolution that the part-time administrator was appointed by Ext.P6. The part-time administrator, after assuming office, had passed the resolution notifying the election to be held on 08.04.2024. It is at that particular stage that Ext.P10 order was passed by the 4th respondent, replacing the part-time administrator within an administrative committee. It is not disputed that the members who have now been appointed to the Administrative Committee are non-members and the contention of the petitioner that they are not even dairy farmers has not been controverted. ``` WP(C)NO.7656OF2024 ``` ``` 7 ``` 7. The power of 4th respondent to appoint a part-time administrator/administrative committee under Section 33 of the KCS Act, in case of an administrative stalemate owing to the expiry of the term of the committee, is not an unbridled power but one which has to be exercised in a judicious manner. Whenever there is an administrative stalemate owing to the expiry of the term of the committee and where there is no allegation against the committee, the Registrar must initially explore the option of appointing an administrative committee consisting of members of the former managing committee. It was so held by a Division Bench of this Court of which Bench, this Court was a member. The relevant paragraph of the Ext. P11 judgment is extracted hereunder:- “6. The term of the Committee has completed. The election ought to have been conducted, but because of the pendency of the amendment of the bye laws, it could not be so done. The result is that in such a situation the Registrar, in terms of Section 33(1)(b), is required to constitute an adhoc committee to manage the affairs of the Co-operative Society till proper elections are conducted and a new Managing Committee is put in place. Thus, the appointment of adhoc committee was not on account of any mal-administration or misfeasance on the part of the Committee, but only on account of the correction of the byelaws. Otherwise, there is no default on the part of the Co-operative Society. Thus even though the Registrar has a discretion to appoint an adhoc committee of maximum three persons, one among them as a convenor, who need not be member of the society to manage the affairs of the society, it does not bar the members of the Co-operative Society itself. Considering that the Co-operative Society ``` WP(C)NO.7656OF2024 ``` ``` 8 ``` is a democratic institution by and for the benefit of the members themselves, it would ordinarily be desirable that members of the Co-operative Society be considered, if not otherwise disqualified. Why should a foreigner to the Co-operative Society be considered, if there are competent persons in the Co-operative Society itself. Discretion conferred by Section 33(1)(b) is not an arbitrary or a fanciful discretion. It has to be exercised on some principles, one of which would be to avoid administration of a Society by nonmembers, even on an adhoc basis, unless there are good reasons to avoid the members. As held by this Court, though the Registrar has a discretion to appoint an adhoc committee of maximum three persons, one among them as a convenor, who need not be a member of the society to manage the affairs of the society, it does not bar the members of the Co-operative Society itself. The Co-operative Society is a democratic institution by and for the benefit of the members themselves, it would ordinarily be desirable that members of the Co-operative Society be considered, if not otherwise disqualified. The discretion conferred by Section 33(1)(b) of the KCS Act is not an arbitrary or a fanciful discretion. It has to be exercised on some principles, one of which would be to avoid administration of a Society by non-members, even on an adhoc basis, unless there are good reasons to avoid the members. 8. In view of the discussion above, the petitioner is entitled to succeed. Ext.P10 order cannot be sustained under law, and the same is quashed. There will be a direction to the 4th respondent to constitute an ``` WP(C)NO.7656OF2024 ``` ``` 9 ``` administrative committee consisting of members of the former managing committee of the 1st respondent Society till elections are held as stipulated in Exhibit P8 notification. **`sd/-` RAJA VIJAYARAGHAVAN V JUDGE** ``` DCS ``` ``` WP(C)NO.7656OF2024 ``` ``` 10 ``` ## **`APPENDIX OF WP(C) 7656/2024`** ## **`PETITIONER EXHIBITS`** |**`Exhibit-P1`**|**`A TRUE COPY OF THE AUDIT MEMORANDUM OF THE 1ST`**| |---|---| ||**`RESPONDENT SOCIETY FOR THE YEAR 2021-2022`**| |**`Exhibit-P2`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`WORKING`**<br>**`REPORT`**<br>**`FOR`**<br>**`MARCH`**| ||**`2023`**| |**`Exhibit-P3`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`WORKING`**<br>**`REPORT`**<br>**`FOR`**<br>**`APRIL`**| ||**`2023`**| |**`Exhibit-P4`**|**`A TRUE COPY OF THE WORKING REPORT FOR MAY 2023`**| |**`Exhibit-P5`**|**`A TRUE COPY OF RESOLUTION DATED 28-01-2024`**| |**`Exhibit-P6`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`ORDER`**<br>**`DATED`**<br>**`07-02-2024`**| ||**`ISSUED BY THE 4TH RESPONDENT`**| |**`Exhibit-P7`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`DECISIONS`**<br>**`DATED 08-02-2024`**| ||**`TAKEN BY THE 3RD RESPONDENT IN HER CAPACITY AS`**| ||**`PART-TIME ADMINISTRATOR`**| |**`Exhibit-P8`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`NOTIFICATION`**| ||**`NO.E(2)/624/2024/S.C.E.C`**<br>**`DATED`**<br>**`19-02-2024`**| ||**`ISSUED BY THE 5TH RESPONDENT`**| |**`Exhibit-P9`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`REPRESENTATION`**<br>**`DATED`**| ||**`16-02-2024`**| |**`Exhibit-P10`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`ORDER`**<br>**`NO.DDTVM/94/2024-DFI`**<br>**`D`**| ||**`DATED 23-02-2024 ISSUED BY THE 4TH RESPONDENT`**| |**`Exhibit-P11`**|**`A TRUE COPY OF JUDGMENT DATED 06-07-2017 IN WA`**| ||**`1410 OF 2017`**| |**`Exhibit-P12`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`JUDGEMENT`**<br>**`DATED`**<br>**`10-11-2022`**<br>**`IN`**| ||**`WP(C) 35282 OF 2022`**| |**`Exhibit-P13`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`INTERIM`**<br>**`ORDER`**<br>**`DATED 13-04-2023`**| ``` WP(C)NO.7656OF2024 ``` ``` 11 ``` ## **`IN WP(C) 9342 OF 2023`** ``` Exhibit-P14ATRUECOPYOFTHERESOLUTIONDATED26-02-2024 TAKENBYTHE2NDRESPONDENT ``` ``` Exhibit-P15ATRUECOPYOFTHEREQUESTDATED27-02-2024 SUBMITTEDBYTHE2NDRESPONDENTTOTHE5TH RESPONDENT ```