WA No. 1158 of 2023 (Intra-Court Appeal) arising out of WP(C) No.16541/2023

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 19[TH] DAY OF JUNE 2023 / 29TH JYAISHTA, 1945** **WA NO. 1158 OF 2023** **AGAINST THE JUDGMENT IN WP(C) 16541/2023 OF HIGH COURT OF KERALA DTD.7.6.2023** ## **APPELLANTS/PETITIONERS/PETITIONERS:** **IMPLEADED AS PER ORDER DTD.25.5.2023** **IN I.A.No.1/2023 IN WP(C) 16541/2023:** |1|NAZARUDEEN P| |---|---| ||AGED 49 YEARS| ||S/O. LATE PAREED RAWTHER, KOLTHACHANAZHIKKAKATHU,| ||KAMPALADY, PORUVAZHY P.O, KOLLAM DISTRICT-690520.| |2|BASHEER M| ||AGED 73 YEARS| ||S/O LATE MEERA SAHIB RAWTHER, VARUVIL HOUSE,| ||KAMPALADI, PORUVAZHI P.O, KOLLAM DISTRICT -690520.| |3|SHAJI NAVAS B| ||AGED 45 YEARS| ||S/O. BASHEER, VARUVIL, KAMPALADI P.O,| ||KOLLAM DISTRICT -690520.| ||BY ADV V.PHILIP MATHEW| ## **RESPONDENTS/PETITIONERS & RESPONDENTS IN THE WRIT PETITION:** 1 ABDUL JALEEL AGED 62 YEARS MANAGING COMMITTEE MEMBER OF KAMPALADY KSHEEROLPADAKA CO-OPERATIVE SOCIETY Q.NO.262 (C) APCOS, RESIDING AT MUNKAKKALPADINJATTATHIL,KAMPALADY, PORUVAZHI P.O,KOLLAM, PIN - 690520 2 H.JALEEL AGED 42 YEARS MANAGING COMMITTEE MEMBER OF KAMPALADY KSHEEROLPADAKA, CO-OPERATIVE SOCIETY Q.NO.262, (D) APCOS, RESIDING AT PALLIYADIVADAKKU, KAMPALADY, PORUVAZHI P.O, KOLLAM, PIN - 690520 WA NO. 1158 OF 2023 2 3 ABDUL MAJEED AGED 65 YEARS MANAGING COMMITTEE MEMBER OF KAMPALADY KSHEEROLPADAKA CO-OPERATIVE SOCIETY Q.NO.262, (D) APCOS, RESIDING AT KOTHACHAZHIKATHU, KAMPALADY, PORUVAZHI P.O, KOLLAM, PIN - 690520 4 SABILA BEEVI AGED 63 YEARS MANAGING COMMITTEE MEMBER OF KAMPALADY KSHEEROLPADAKA CO-OPERATIVE SOCIETY Q.NO.262 (D) APCOS, RESIDING AT SAJITHA MANZIL, KAMPALADY, PORUVAZHI P.O, KOLLAM, PIN - 690520 5 SAFIYATH AGED 58 YEARS MANAGING COMMITTEE MEMBER OF KAMPALADY KSHEEROLPADAKA CO-OPERATIVE SOCIETY Q.NO.262, (D) APCOS, RESIDING AT SAJEEV MANZIL, KAMPALADY, PORUVAZHI P.O, KOLLAM, PIN – 690520. 6 ABDUL LATHEEF AGED 62 YEARS MANAGING COMMITTEE MEMBER OF KAMPALADY KSHEEROLPADAKA CO-OPERATIVE SOCIETY Q.NO.262, (D) APCOS, RESIDING AT NELLIVILATHAZHATHUNDIL, KAMPALADY, PORUVAZHI P.O, KOLLAM, PIN - 690520 7 DEPUTY DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT, KOLLAM, PIN - 691001 8 STATE CO-OPERATIVE ELECTION COMMISSION, REPRESENTED BY SECRETARY 3RD FLOOR, CO-OPERATIVE BANK TOWERS, PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695033 BY ADV P.N.MOHANAN ## **OTHER PRESENT:** SRI. K.P. HARISH-GP SRI. C.M.NAZAR-SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ALEXANDER THOMAS & C. JAYACHANDRAN, JJ.** **-------------------------------------------------------------------------** ## W.A. No.1158 of 2023 _[arising out of the impugned judgment dated 07.06.2023 in W.P.(C) No.16541/2023]_ **--------------------------------------------------------------------** Dated this the 19[th] day of June, 2023 ## **JUDGMENT** ## **Alexander Thomas, J.** The afore captioned intra-court appeal, instituted under Sec.5(i) of the Kerala High Court Act, is directed against the impugned judgment rendered by the learned Single Judge on 07.06.2023, disposing of writ petition, W.P.(C) No.16541/2023. The three appellants herein are contesting respondents 3 to 5 in the above W.P.(C)., whereas contesting respondents 1 to 6 in the writ appeal are the writ petitioners. Official respondents 7 & 8 in the writ appeal are respondents 1 & 2 in the W.P.(C). 2. Heard Sri.V.Philip Mathew, learned counsel appearing for the appellants in the writ appeal, Sri.P.N. Mohanan, learned counsel appearing for respondents 1 to 6 in the writ appeal (writ petitioners) and Sri.B. Unnikrishna Kaimal, learned Senior Government Pleader, appearing for R-7. We are told that notice to R-8 herein (State Cooperative Election Commission)/R-2 in the W.P.(C)., was dispensed with at the W.P.(C). stage. Hence, notice to R-8 herein/R-2 in the W.P.(C). will stand dispensed with. W.A.No.1158/2023 2 ## 3. The prayers in the instant writ petition (civil), W.P.(C). No.16541/2023, filed by respondents 1 to 6 herein are as follows:- - _“i] issue a writ of mandamus or any other appropriate writ order or direction directing first respondent to appoint the President and two members of the present managing committee as the administrative committee members under Section 33 of the KCS Act, till election is over._ - _ii] for a direction to the second respondent to start the election from the stage it was stopped._ - _iii] for a direction to dispense with filing of the translation of vernacular documents._ - _iv] Grant such other relief as this Hon’ble Court may deem fit and proper in the circumstances of the case.”_ 4. The learned Single Judge, after hearing both sides, has rendered the impugned judgment on 07.06.2023, disposing of the W.P. (C)., with the directions that, since elections to the Managing Committee of the above Society in question could not be held before the expiry of the term of the present Committee, only on account of certain interdiction made by this Court and since the elections are now scheduled to be held on 10.07.2023, the first respondent in the W.P.(C)., (Deputy Director, Diary Development Department), who is the Notified Registrar, as per the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as ‘KCS Act’ for short), should constitute an Administrative Committee, consisting of members of the present Managing Committee, to manage the day-to-day affairs of the Committee till a new Committee is formed, W.A.No.1158/2023 3 following the elections to be held on 10.07.2023. Further that, since the writ petitioners are not so far disqualified from the membership of the society, it will be open to R-1 in the W.P.(C). to decide as to who should manage the society till 10.07.2023. Further, it has been observed that, for issuing direction to form an Administrative Committee for the period up to 10.07.2023, the Co-operative Society in question or its members are not necessary parties. It is this verdict in the above writ proceedings that is under challenge in the instant intra-court appeal. 5. We have heard both sides in _extenso_ and anxiously given consideration to the rival pleas and gone through the pleadings and materials on record. 6. A brief reference to the necessary facts would be pertinent. It is the case of the writ petitioner that now the elections to the Managing Committee of the Kampalady Ksheerolpadaka Co-operative Society is scheduled to be held on 10.07.2023 and that the term of the present Managing Committee of the said society would expire on 10.06.2023. That, going through certain orders issued by this Court in W.P.(C) No.15386/2023, the elections should not be held, prior to the expiry of the term of the present Managing Committee, etc., it is in the light of these aspects that the learned Single Judge has issued the directions in W.A.No.1158/2023 4 ## paras 4 & 5 of the impugned judgment, which reads as follows:- - _“4. Having regard to the facts and circumstances of the case and considering the fact that the elections to the Managing Committee of the Society could not be held before the expiry of the term of the present Committee only on account of certain interdictions by this Court and since the elections are scheduled to be held on 10-07-2023, I am of the opinion that the 1[st] respondent should constitute an Administrative Committee consisting of members of the present Managing Committee to manage the day to day affairs of the Society till a new committee is formed following the elections to be held on 10-07-2023. The petitioners have not so far been disqualified from membership of the Society. Moreover, it is for the 1[st] respondent to decide as to who should manage the Society till 10-07-2023. For issuing direction to form an Administrative Committee for the period up to 10-07-2023, the Society itself or its members are not necessary parties._ _5. Accordingly, this writ petition will stand disposed of directing the 1[st] respondent to constitute an Administrative Committee to manage the affairs of the Society from 10-06-2023 from amongst the members of the present Managing Committee till a new Committee is formed following the elections to be held on 10-07-2023.”_ 7. It is the specific case of Sri.V. Philip Mathew, learned counsel appearing for the appellants/contesting respondents 3 to 5 in the W.P. (C), that the factual scenario, as projected by the writ petitioners, would be fully covered by the provisions contained in Sec.33 of the KCS Act, more particularly, Sec.33(1)(b) and its provisos. Sec.33 of the KCS Act deals with appointment of new Committee or Administrator on failure to constitute committee, etc. Sec.33(1)(b) of the KCS Act and its provisos read as follows:- _“Sec.33. Appointment of new committee or administrator on failure to constitute committee, etc.- (1) Where the term of office of a committee has expired and a new committee has not been constituted, or where a no-confidence motion is passed by the general body against the existing committee or where the existing committee resigns enbloc or where_ W.A.No.1158/2023 5 _vacancies occur in the committee either by resignation or otherwise and the number of remaining members cannot constitute the quorum for the meeting of the committee, or where the committee fails to hold its regular meeting consecutively for six months or where the Registrar is satisfied._ _a) xxxx xxxx xxxx (aa) xxxx xxxx xxxx_ _(b) that a new committee is prevented from entering upon office or a new committee fails to enter upon office, on the date on which the term of office of the existing committee expires, the Registrar may, either suo motu or on application of any member of the society, after intimating the Circle Cooperative Union, appoint one Administrator or an administrative committee consisting of not more than three individuals, who need not be member of the society, one among them as convener to manage the affairs of the society, for a period not exceeding six months as may be specified in the order, which period may, at the discretion of the Registrar and for reasons to be recorded in writing, be extended, from time to time, so, however, that the aggregate period shall not, in any case, exceed one year or till a new committee enters upon office, whichever is earlier._ _Provided that before making such order, the Registrar shall publish a notice on the notice board of the head office of the society inviting objections to the making of the order within a period specified in the notice and consider such objections._ _Provided further that it shall not be necessary to publish such notice in cases where the Registrar is satisfied that it is not reasonably practicable to do so._ _Provided also that, where a committee, Administrator or Administrators, as the case may be, is in office at the commencement of the Kerala Co-operative Societies (Amendment) Act, 1992, the Registrar may extend the term of such committee, Administrator or Administrators, as the case may be, for a further period not exceeding one year from the date of such commencement.”_ 8. Further, it is pointed out that this Court has held in various decisions, including the Division Bench verdict rendered in _**Joint Registrar v. Chatha**_ [1999 KHC 554 = 1999 (3) KLT 139 = 1999 (2) KLJ 529], etc., that, under Sec.33 of the Act, power is given to the Registrar of Cooperative Societies to appoint, after intimating the Circle W.A.No.1158/2023 6 Cooperative Union, a new committee consisting of not more than three members of the society; or one or more administrator or administrators, who need not be a member or members of the society, to manage the affairs of the society for a period not exceeding six months as may be specified in the order, which period may be extended from time to time at the discretion of the Registrar, for reasons recorded in writing, under the contingencies enumerated in the said Section and that, this Court can only direct the Registrar of Cooperative societies to appoint an administrator or administrators, in accordance with the provisions contained in Sec.33 of the KCS Act and that, in that view of the matter, the direction issued in the impugned judgment, rendered by the learned Single Judge, in so far as it directs the present Board/Managing Committee to be appointed as Administrative Committee till the election is over, is liable to be set aside, etc. 9. Further, it is urged by the appellants’ counsel that writ petitioners 2 & 5 in the W.P.(C) are not eligible to continue as members of the abovesaid Co-operative society in question, in view of the factual aspects discernible from Exts.R3(a) & R3(b) thereof, inasmuch as it is stated that the said petitioners have not supplied the requisite quantity or necessary quantity of milk to the abovesaid Co-operative Society, W.A.No.1158/2023 7 which is a milk producer society. Further, it is also urged that, going by the nature of the drastic effects of invoking Sec.33 of the KCS Act and, at any rate, in the facts of this case, the Co-operative Society in question was a necessary party and non-impleadment of the Co-operative Society would be fatal. 10. The allegation raised by the appellants, based on Ext.R3(a) & R3(b), that writ petitioners 2 & 5 are not eligible to continue as members of the said Society are strongly opposed by Sri.P.N. Mohanan, learned counsel appearing for the writ petitioners, by saying that the said members have not so far been disqualified from their membership and they continue to be members, in the manner known to law, etc. 11. However, in view of the rival pleas of both sides, we are of the firm view that the Co-operative Society should have been made a party in the instant case, especially to ascertain the veracity of these rival factual pleas, at any rate, going by the drastic nature of the consequences that may ensure on account of the invocation of the powers under Sec.33, in cases of this nature, ordinarily, the Co-operative Society should be heard. Further, a reading of the first proviso to Sec.33(1)(b) of the KCS Act would make it clear that the Registrar have to issue notice on the notice board of the Head Office of the Society, inviting objections, etc., and the W.A.No.1158/2023 8 second proviso empowers waiver of such notice only if the Registrar is satisfied that it is not reasonably practicable to do so, etc. Therefore, it cannot be said that in cases of this nature, the Co-operative Society in question should be a mere spectator. 12. In such circumstances, we are of the view that the nonimpleadment of the Co-operative Society would be fatal and accordingly, the impugned judgment will require appellate interdiction. 13. However, we suggested to both sides that, since it is their admitted case that the elections are now to be held on 10.07.2023 and the term of the present elected Managing Committee will be over by 10.06.2023, etc., we would clarify the legal position that it is for the Notified Registrar, like the 7[th] respondent, to consider the factual contingency in question and then decide as to which provision of the law should be invoked and also as to whether discretion is to be exercised in terms of Sec.33, more particularly Sec.33(1)(b) of the KCS Act, etc. The manner of exercise of such discretion would be entirely within the statutory discretionary domain of the Notified Registrar, who is the first respondent. 14. However, during the course of the hearing, we are apprised that, the 7[th] respondent, the Notified Registrar, may have already taken W.A.No.1158/2023 9 the decision, in compliance with the impugned judgment, to constitute Administrative Committee, etc. Hence, the learned Senior Government Pleader was requested to get instructions. The learned Senior Government Pleader has now apprised us that, in compliance with the directions issued by the learned Single Judge in the present impugned judgment, the 7[th] respondent, the Notified Registrar has already implemented the same by passing proceedings bearing No.DDKLM/548/2023-A5 dated 9.6.2023, whereby three members of the Managing Committee in question has been ordered to be appointed as members of the Administrative Committee, by invoking the powers, etc. In this regard, Sri.V.Philip Mathew, learned counsel appearing for the appellants would point out that, it is understood that the second writ petitioner/second respondent in the appeal, one Sri.H.Jaleel, who is not now eligible to continue as member of the Co-operative Society has also been made one of the three members of the Administrative Committee. The learned Senior Government Pleader has made available a copy of the said proceedings dated 9.6.2023 and we have perused the copy of the same. A copy of the said proceedings dated 9.6.2023 has been produced as Annexure-A1 by the appellants. From a reading of Annexure-A1 proceedings dated 9.6.2023 it is seen that the 7[th] respondent, Notified W.A.No.1158/2023 10 Registrar has already complied with the directions in the impugned judgment, etc. 15. In the light of the aspects discussed herein above, we are of the view that the impugned judgment would require interdiction. Accordingly, the impugned judgment dated 7.6.2023 rendered by the learned Single Judge in W.P.(C)No.16541/2023 will stand set aside. It is also ordered that the consequential proceedings taken in compliance with the said judgment will also stand rescinded as it is only consequential proceedings. However, we make it clear that the 7[th] respondent, who is the Notified Registrar, should consider the factual contingencies and decide which provision of law should be invoked and as to whether Section 33(1)(b) would apply and if so in what manner he has to exercise such statutory discretion in terms of Section 33(1)(b) afresh and to ensure that necessary steps are taken in exercise of his statutory discretion independently and taking note of the interest of the members of the society and the society. Such decision afresh on the above said aspect should be rendered by the 7[th] respondent, Notified Registrar within three or four days, until then, the arrangement envisaged as per Annexure-A1, would continue only on an ad hoc basis. The learned Senior Government Pleader is requested to intimate the 7[th] W.A.No.1158/2023 11 respondent, Notified Registrar, about these directions for necessary steps and may also forward a copy of this judgment so that necessary steps can be taken by him without any further delay. With these observations and directions, the above writ appeal will stand disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** Sd/- ## **C. JAYACHANDRAN, JUDGE** skk/skj W.A.No.1158/2023 12 ## **APPENDIX OF WA 1158/2023** APPELLANTS' ANNEXURE:Annexure A1 COPY OF THE ORDER NO DDKLM/548/2023-A5 DATED 9/6/2023 PASSED BY THE 7TH RESPONDENT