W.A.No.1596 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943** **WA NO. 1596 OF 2019** **AGAINST THE JUDGMENT DATED 25.6.2019 IN WP(C)NO.4796/2018** **OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 9 TO 14:** - **1 ASWATHI,AGED 28 YEARS D/O.SATHYAN, RESIDING AT ALAMBADU HOUSE, MURUKALLINGAL, CHALIYAM, KOZHIKODE - 673 301.** - **2 MINU MOHAN. P., AGED 26 YEARS D/O.MOHANA SUDHARAN, RESIDING AT PINPURATH HOUSE, ONNAMPALAM, KADALUNDI, KOZHIKODE - 673 302.** - **3 NAFEESA, AGED 50 YEARS D/O.MAMMAD KOYA. P., RESIDING AT PUTHAN KALATHIL CHEMBRATHARA HOUSE, MURUKALLINGAL, CHALIYAM, KOZHIKODE - 673 301.** - **4 RAJANI. C. P., AGED 50 YEARS D/O.KUTTAN, RESIDING AT CHEMBRATHARA HOUSE, MURUKALLINGAL, CHALIYAM, KOZHIKODE - 673 301.** - **5 SUCHITHA. M. K.,AGED 39 YEARS D/O.GOPALAKRISHNAN, 'SREEVATHSAM', VATTAPARMBA, CHALIYAM, KOZHIKODE - 673 301.** - **6 LINCY. C., AGED 33 YEARS D/O.BABU, RESIDIGN AT PILAKKAT HOUSE, MANNUR, KOZHIKODE - 673 328.** **BY ADVS.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** W.A.No.1596 of 2019 2 ## **RESPONDENTS/WRIT PETITIONERS & RESPONDENTS 1 TO 8 & 15:** - **1 RUBEENA M.C., AGED 40 YEARS D/O.MCM HANEEFA HAJI, KUTHEDATH HOUSE, CHALIYAM POST, KOZHIKODE - 673 301, (PRESIDENT OF CHALIYAM VANITHA CO-OPERATIVE SOCIETY LTD.,)** - **2 SHAKUNTHALA. K.,W/O.KRISHNAN, KAKKAT HOUSE, CHALIYAM POST, KOZHIKODE - 673 301, (MEMBER, ADMINISTRATIVE COMMITTEE OF CHALIYAMVANITHA COOPERATIVE SOCIETY LTD.)** - **3 USHA. C. P., AGED 56, W/O. AYYAPPAN, CHERIYAMPARAMBIL HOUSE, CHALIYAM POST, KOZHIKODE - 673 301, (MEMBER, ADMINISTRATIVE COMMITTEE OF CHALIYAMVANITHA CO-OPERATIVE SOCIETY LTD.)** - **4 SUHARA. K.,AGED 55, W/O.ALI, KUPPAKAD HOUSE, CHALIYAM POST, KOZHIKODE - 673 301, (MEMBER, ADMINISTRATIVE COMMITTEE OF CHALIYAMVANITHA COOPERATIVE SOCIETY LTD.)** - **5 HASEENA. T., AGED 50,W/O. HAMSAKOYA, KUNJAVANTHAJATH, CHALIYAM POST, KOZHIKODE - 673 301, (HONOURARY SECRETARY AND MEMBER, ADMINISTRATIVE COMMITTEE OF CHALIYAMVANITHA COOPERATIVE SOCIETY LTD.).** - **6 BEENA. K., AGED 48, W/O. AYYAPPAN, KONNAMKUZHI, CHALIYAM POST, KOZHIKODE - 673 301, (MEMBER, ADMINISTRATIVE COMMITTEE OF CHALIYAMVANITHA COOPERATIVE SOCIETY LTD.)** - **7 SARASWATHI. K., AGED 49, W/O. SHIVADASAN, KILIYANKANI, CHALIYAM POST, KOZHIKODE - 673 301, (MEMBER, ADMINISTRATIVE COMMITTEE OF CHALIYAMVANITHA CO-OPERATIVE SOCIETY LTD.)** W.A.No.1596 of 2019 3 - **8 RUKHIYA. K. V., AGED 49, W/O. ABDUL KHADER K.V., ANJUDIKKAL HOUSE, CHALIYAM POST, KOZHIKODE - 673 301, (MEMBER, ADMINISTRATIVE COMMITTEE OF CHALIYAMVANITHA CO-OPERATIVE SOCIETY LTD.)** - **9 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, NEAR PRESS CLUB, THIRUVANANTHAPURAM - 695 101.** - **10 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL)** - **KOZHIKODE, SAHAKARANA BHAVAN, PUTHIYARA, KOZHIKODE - 673 004.** - **11 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)** - **KOZHIKODE, SAHAKARANA BHAVAN, PUTHIYARA, KOZHIKODE - 673 004.** - **12 UNIT INSPECTOR,FEROKE UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOZHIKODE, SAHAKARANA BHAVAN, PUTHIYARA, KOZHIKODE - 673 004.** - **13 CHALIYAM VANITHA CO-OPOERATIVE SOCEITY, CHALIYAM POST, KOZHIKODE - 673 301, REPRESENTED BY ITS SECRETARY IN CHARGE.** - **14 SARIJA. C., D/O. DEVADASAN, CHERUKAD HOUSE, KEEZHKODE, MANNUR POST, KOZHIKODE - 673 328.** - **15 THE STATE OF KERALA,REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CO-OPERATION, THIRUVANANTHAPURAM - 695 101.** - **16 THE STATION HOUSE OFFICER,BEYPORE POLICE STATION, BEYPORE, KOZHIKODE DISTRICT - 673 001.** W.A.No.1596 of 2019 4 **17 KERALA STATE CO-OPERATIVE ELECTION COMMISSION, OFFICE OF THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 003, REPRESENTED BY ITS SECRETARY.** **BY ADVS.SRI.P.C.SASIDHARAN SRI.K.K.JAYARAJ NAMBIAR SRI.K.M.FIROZ SMT.M.SHAJNA BY SPL.G.P.SRI.MOHAMAD HASHIM** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24.06.2021,** **THE COURT ON 29.6.2021 DELIVERED THE FOLLOWING:** W.A.No.1596 of 2019 5 **“C.R.”** **C.T.RAVIKUMAR &** ## **N.NAGARESH, JJ.** ----------------------------W.A.No.1596 of 2019 -----------------------------Dated 29[th] June, 2021 ## **JUDGMENT** ## **Ravikumar, J.** We are peeved to learn the games that put a democratic institution in the doldrums. In the decision in **Gopalan** v. **Joint Registrar of Co.op. Societies** reported in **1985 KLT 446** this Court observed that a Co-operative Society is also a socially relevant democratic institution functioning at grass root level and in that matter the court should be anxious to ensure that proper functioning of the democratic institution is not interfered with. These considerations have to be persuaded to exercise the discretion under Article 226 of the Constitution, it was further held therein. The preamble to the Kerala Cooperative Societies Act, 1969 (for brevity ‘KCS Act’) itself proclaims that it was enacted with a view to provide for the orderly development of the Co-operative sector in the State and to organise Co-operative Societies as self governing, democratic institutions, in accordance with the Directive Principles of State Policy enunciated in the Constitution of India. In the decision in **Anil Bhai M. Patel and Others** v. **Suryapur** W.A.No.1596 of 2019 6 ## **Bank Agent D.B.H. Samiti and others** reported in **(2007) 4 SCC 83** the Hon’ble Apex Court held that Co-operative Societies should normally be allowed to function through elected representatives. However, the facts narrated infra, allegedly taken place in Chaliyam Vanitha Co-operative Society Ltd., Kozhikode, hereinafter referred for short ‘the Society’, which is respondent No.13 herein, if emulated and practiced, it would be antithesis and annihilative to democracy and would also defeat the very avowed purpose and object proclaimed in the preamble to the KCS Act. In the Society a Part-time Administrator was appointed as per an order passed under Section 33(1) of the KCS Act of the Joint Registrar of Co-operative Societies(General), Kozhikode. In fact, its genesis is a report of its Secretary to the Assistant Registrar of Co-operative Societies (General), Kozhikode that eight of its members including President resigned from the Committee. However, those members who are respondents 1 to 8 herein/the writ petitioners strongly denied an act of resignation and alleged that the Secretary of the Society falsely minuted thus. Besides the right of the committee as a whole and the individual right of the members of the committee in case of replacement of the position it/they hold in blatant violation of the prescribed procedures one cannot lost sight of another side of the issue. The committee of a society elected to power democratically can W.A.No.1596 of 2019 7 be replaced only in statutorily specified circumstances, that too, only in accordance with the prescribed procedures. So also, a committee of a society can resign enbloc or its member/members who are all elected democratically can resign from the membership of the Managing Committee, only in accordance with law. This is required because the very constitution of a committee in a Society is the reflection of the mandate of the members who constitute the electorate of the society concerned. When it is the mandate of the electorate that take them to the position concerned any infraction of the prescribed procedures resulting in replacement of their choice in an arbitrary manner, would be an indirect intrusion into their right to elect. If such things happen it can never be given the stamp of approval. This is the _raison d’etre_ for our opening remark. We referred to the aforesaid aspects to stress on the absolute essentiality for strict adherence to the provisions under Section 33 of the KCS Act. When the rule is that the society has to be administered by a democratically elected Managing Committee and the room for administration by an Administrator or an Administrative Committee is only in unavoidable circumstances to avoid administrative vacuum, only upon satisfaction of the statutorily enjoined conditions that a democratically elected Managing Committee can be replaced. Imbroglio in respect of the question whether the members of the W.A.No.1596 of 2019 8 managing committee had resigned or not from the membership of the committee, is not a healthy or welcome situation in any society. More so, a situation where the members themselves deny resignation and the Secretary of the society concerned asserts submission and acceptance of resignation of members. Failure to adhere to the procedures by the authorities concerned before inducting an Administrator or Administrative Committee in place of the elected Managing Committee may assume the nature of incorrigibility or fatal lapse in certain cases. Section 33 of the KCS Act and Rule 38 of the Kerala Co-operative Societies Rules (for brevity, 'the KCS Rules') throw sufficient light on the aspects of constitution of committee, circumstances warranting appointment of administrator or administrative committee in place of elected committee, resignation and removal of committee as also its members and the procedures therefor. Most of the times it is the infraction from the prescribed or nonadherence to the prescribed procedures that leads to litigious situations. Failure to imbibe the legal position that the Registrar/Joint Registrar of Co-operative Societies are bound to follow judicial precedents while exercising their powers as ratio decidendi has the force of law and is binding on all statutory authorities when they deal with similar issues may also create such situations. When it leads to W.A.No.1596 of 2019 9 illegal ouster of an elected committee of a society and/or, of its members before expiry of the statutorily fixed term, it becomes a threat to democracy. 2. When the matter is taken up for consideration the learned Government Pleader submitted that the term of the committee had expired and before that resolution for election was passed and based on which election notification was issued on 15.3.2021. It is further submitted that in terms of the same election was conducted, its result was declared on 27.4.2021 and the new committee has also taken assumed charge. Normally, in the said circumstances, we would have refrained from making further consideration of the issues involved in the appeal. However, in view of our opening remark and the involvement of the larger, important question which made us to make the aforesaid observations we will proceed with the consideration of this appeal, to answer the same. 3. To pin-point and emphasize the relevance of the question involved a brief narration of the facts as hereunder is essential:- Respondents 1 to 8 herein/writ petitioners, were members of the Managing Committee of the Society. In the writ petition they challenged Ext.P9 order dated 9.2.2018 appointing a Part-Time Administrator in the W.A.No.1596 of 2019 10 Society under Section 33(1) of the KCS Act, passed on the premise that they resigned from its Managing Committee and to avoid administrative stalemate allegedly created. By that time the committee had completed only two years out of its normal tenure of 5 years in view of Section 28(1) of the KCS Act. The writ petitioners/respondents 1 to 8 herein, asserted that they had not resigned from the Managing Committee of the Society and respondent No.14 herein viz., the 6[th] respondent in the writ petition, who was then serving as the secretary of the Society falsely prepared such minutes. It is their precise case that the duty of the Secretary includes preparation of the minutes of the meeting of the committee. This averment that preparation of minutes was the duty of the secretary was not disputed by respondent No.14 herein in her counter affidavit or additional counter affidavit. According to the writ petitioners, on 1.2.2018 a meeting of the Committee was convened for the purpose of discussing mobilization works. Respondents 1, 3 and 5 to 8 herein viz., writ petitioners 1, 3 and 5 to 8 along with three other members namely, Valsala, M Shaharbhan and Sauda.M had participated in the meeting. After the meeting the President/the first respondent asked for the minutes book for countersigning and the 14[th] respondent sought time stating that the proceedings were yet to be minuted. Though it was asked for on many W.A.No.1596 of 2019 11 occasions the 14[th] respondent did not hand over the same. On 8.2.2018 when the president-the first respondent asked the 14[th] respondent to take steps to convene the meeting of the Committee, to her dismay, she told that all the writ petitioners have ceased to be the members of the Committee as their resignations were accepted by the Committee. On being handed over the minutes book the first respondent noted entries therein to the effect that all the writ petitioners including herself had tendered resignations, that they were accepted and that it was resolved to move the Joint Registrar through the Assistant Registrar to take steps for appointment of an Administrator. The contention of the writ petitioners viz., respondents 1 to 8 herein is that they are absolutely false entries and their core contention is that they had not resigned from the membership of the Committee of the society and therefore, Ext.P9 order is founded on a non-existent reason. Obviously, as an alternative they have contended that Ext.P1 is an order passed in total violation of Section 33 of KCS Act as also Rules 38(3) and 38(4) of the KCS Rules. Respondent Nos. 10 and 14 herein (respondent Nos. 2 and 6 therein) filed separate counter affidavits and the writ petitioners filed reply affidavits to those counter affidavits. An affidavit was filed by respondent No.15 herein viz., respondent No.7 therein, as directed by the writ court. An additional counter affidavit was also filed W.A.No.1596 of 2019 12 by respondent No14 viz., the sixth respondent therein. The learned Single Judge after considering the rival contentions and perusing the materials on record declined to accept the case of resignation of the writ petitioners and set aside Ext.P9 and restored the committee in office. 4. It is aggrieved by the judgment passed on the aforesaid lines that the appellants who were respondents 9 to 14 in W.P. (C).No.4796 of 2018 have come up in appeal. They are members of the Society and are interested in the affairs of the Society. Hereafter, in this judgment, the parties are referred to in accordance with their status and rank in this appeal, unless otherwise specifically mentioned. 5. A scanning of the impugned judgment would reveal that the learned Single Judge considered the question whether Ext.P9 order was issued after complying with the provisions under Section 33 of the KCS Act. Evidently, the learned Single Judge identified the core question as ‘whether there was valid resignation by respondents 1 to 8 herein’. It was found that an enquiry in that regard had never been conducted by any authority and sans such an enquiry, the Assistant Registrar of Co-operative Societies blindly accepted the version of the Secretary of the society and intimated the Joint Registrar that an en masse resignation of members of the Society, resulting in loss of W.A.No.1596 of 2019 13 quorum for meeting, had taken place and thereupon, Ext.P9 order was issued. The learned Single Judge declined to accept the version of the 14[th] respondent, the Secretary that she had accepted resignation from respondents 1 to 8 as the President of the Society had also resigned from the Managing Committee. It was found that the specific provisions under the KCS Rules were not strictly adhered to; that the Secretary’s version that she had accepted the resignation from the writ petitioners as the President had also resigned from the committee is not believable in view of the materials on record; that the Secretary of the society was not authorised to inform the Assistant Registrar about the resignation of the members of the managing committee and the alleged consequential loss of quorum. The writ court held that Ext.P9 order got no legal force as the factum of resignation of the writ petitioners/respondents 1 to 8 was not proved beyond reasonable doubt and further that the Joint Registrar could have and should have followed the provisions under Section 33 of the KCS Act and passed the order only on getting convinced that those members had validly resigned from the membership of the committee. Further, it was found that without any cogent evidence on the issue of resignation by the members, the Joint Registrar issued Ext.P9 order solely based on the report of the Assistant Registrar that some of the members of the W.A.No.1596 of 2019 14 Managing Committee of the Society had resigned and consequently, there occurred loss of quorum. Resultantly, the writ petition was allowed as aforesaid. It is also relevant to note that the aforesaid writ petition was actually heard along with two other writ petitions idest W.P. (C).Nos.37593 of 2018 and 37440 of 2018. Virtually, those writ petitions were filed challenging the consequently issued notification for election to constitute a new committee for the Society. Since W.P.(C) No.4796 of 2018 was allowed the other writ petitions were closed holding that they became infructuous on account of the disposal of W.P. (C) No.4796/2018 with directions. 6. Heard the learned Senior Counsel Sri.George Poonthottam for the appellants, the learned counsel Sri.P.C.Sasidharan for respondents 1 to 8, Sri.K.K.Jayaraj Nambiar for the 14[th] respondent/ the 6[th] respondent in the writ petition and also Sri.Mohamad Hashim, the learned Special Government Pleader. 7. As rightly observed by the learned Single Judge, the very genesis of the controversies which culminated in filing of W.P.(C) No.4796 of 2018 is the issuance of Ext.P9 order by the Joint Registrar, without adhering to the prescribed statutory procedures. Indisputably, he issued Ext.P9 stating that respondents 1 to 8/writ petitioners had resigned from the membership of the Managing Committee and thereby W.A.No.1596 of 2019 15 constitution of an Administrative Committee under Section 33(1) of the KCS Act became essential. The appellants who were respondents 9 to 14 in the writ petition got themselves impleaded in the writ petition upon establishing that they are interested in the affairs of the society. Evidently, they were not members of the Managing Committee replaced under Ext.P9. The case of the appellants is that 8 members including the President of the managing committee had submitted resignation from the membership of the committee and the Administrator was appointed under Section 33 of the KCS Act by the Joint Registrar to avoid a situation of stalemate in the administration. In short, according to them, Ext.P9 order is infected with no illegality warranting an interference. Per contra, respondents 1 to 8 who have succeeded before the writ court in establishing that Ext.P9 is an order issued in total disregard to the mandatory provisions under the KCS Act and the KCS Rules, above all without ascertaining the correctness of the factum of such en masse resignation of members, attempted to sustain the judgment of the learned Single Judge. 8. The indisputable fact is that Ext.P9 order was issued under Section 33 of the KCS Act pursuant to a report by the Assistant Registrar that respondents 1 to 8 had resigned from the membership of the society and it resulted in loss of quorum for meeting. The further W.A.No.1596 of 2019 16 indisputable position is that the Assistant Registrar had forwarded such a report, rather, a letter in that regard to the Joint Registrar based on the intimation regarding the resignation by the Secretary of the society, without resorting to any method to cross check the verity of the reporting by the Secretary. In this contextual situation, we think it is appropriate to refer to the agenda of the meeting held on 1.2.2018 which was alleged to have been made fraudulently, according to respondents 1 to 8/writ petitioners and properly drawn as per the appellants and the 14[th] respondent. Agenda Nos.1 to 4 read thus:- |അജണ-1<br>കഴ�ഞ ഭരണ സമത� യ��ഗ ത�രമ�ന�<br>വ��ചറ�യ��ർഡ���ൻ|റ**�**<br>�ർഡ���| |---|---| |അജണ-2<br>ഭരണ സമത� അ�ഗങള�� ശകനളK.<br>ഉഷC.P. സഹറK. എന�വരട* ര�ജ�<br>അയ+ക��ൽ<br>ത�രമ�നടമടകനത<br>സ�ബന�ച.|ര�ജ� സ4�കര�ച.അ�ഗ�കര�ച.| |അജണ-3<br>സ�ഘത�ട7<br>ന�യക+കരട*<br>വ8ക�ഗത<br>വ�വരങൾ ഭരണസമ�ത���ൽ അവതര�പ�-<br>കനത�ന<br>അനവ�ദ�<br>വ�ങനത�ന���<br>ബഹ.സഹ.സ�ഘ� അസ�.രജ�സ�ർ മയBന<br>യജ���ന രജ�സ�ർ� അയ+ക നൽകനത<br>സ�ബന�ച.|| W.A.No.1596 of 2019 17 |അജണ-4<br>ഭരണ സമ�ത� അ�ഗങള�� ഹസ�നJ.<br>റB��K.V.സരസ4ത�K.ബ�നK.എന�വർ<br>ര�ജ�<br>സമർപ�കകയ�<br>ആ�ത<br>അ�ഗ�കര�ചടക�ണ ഭരണസമ�ത� ഭര�+ക�<br>നഷടപടത�ന�ൽ പസ�ഡന റബ�നM.C. യ�<br>ര�ജ� സമർപ�ച.ഇയത ത*ർന സ�ഘത�ൽ<br>സ�ഭവ�ച�ര�കന<br>ഭരണ<br>പത�സന**�**�ൽ<br>ത�രമ�നടമടകനത സ�ബന�ച.|പസ�ഡന ഉൾടപട*8 ഭരണസമ�ത�<br>അ�ഗങളട*<br>ര�ജ�ട�<br>ത*ർന<br>സ�ഘത�ൽ ഭരണ+രമ�� പത�സന�<br>വന�ര�കന.ആ�ത�ന�ൽ അഡ�ന�റർ<br>മB�ന�ര�<br>ഇത<br>+ര�ഹര�ച<br>തരനത�ന���<br>ബഹ.സഹ.സ�ഘ�<br>അസ�.<br> രജ�സ�ർ<br>മയBന<br>ബഹ.<br>സഹ.സ�ഘ� യജ���ന രജ�സ�യറ�*<br>അയ+ക�കവ�ൻ ത�രമ�ന�ച.| |---|---| Before making any observation about the agenda it will only be appropriate to look into the meaning of the word ‘agenda’. In the new International Webster’s Comprehensive Dictionary- Encyclopedic Edition its meaning is given as “A record of things to be done, as items of business; a memorandum; specifically, a program of business to be done or papers to be read in a meeting.” When that be the meaning of the word ‘agenda’ how can the issues mentioned as agenda-4 can be termed as agenda. It is to be noted that the meeting was held on 1.2.2018. The letters of resignation produced along with the reply affidavit filed by respondents 1 to 8 herein/writ petitioners and along with the memo dated 11.12.2018 filed by the Senior Government Pleader pursuant to the direction of the learned Single Judge on 7.11.2018, on behalf of the 2[nd] respondent, would reveal that going by the case of the appellants as also the 14[th] respondent herein respondents 1 and 6 to 8/writ petitioner Nos.1 and 6 to 8 have resigned W.A.No.1596 of 2019 18 from the committee on 1.2.2018 itself. Whether the act of resignation is to be done after including as an item in the agenda? Even if it is taken that it is during the course of the meeting held on 1.2.2018 that respondent Nos. 6 to 8 resigned why should they give the letters of resignation addressing it to the Secretary and the President when the President viz., Respondent No.1 was presiding the said meeting? If it was received by the President, as contended by respondent No.14, where is the endorsement to that effect in the said letters of resignation? Even if it is taken that petitioner No.1/respondent No.1 viz., the President has also resigned during the meeting how can they then take a further decision, as minuted, to request the Joint Registrar of Co-operative Societies through the Assistant Registrar of Cooperative Societies to appoint an Administrator to avoid administrative crisis, after resigning from the committee? Even if the case of respondent No.14 is believed, where is the cross-signature by Smt. Rubeena.M.C. viz., the 1[st] respondent in the minutes of the meeting held on 1.2.2018? Page No.54 of the writ appeal carries only the signature of respondent No.14 viz., the then Secretary against whom the writ petitioners made the aforementioned allegations. In this context, it is to be noted that Ext.P1 carries minutes of meetings conducted on certain other days as well and they would reveal the fact W.A.No.1596 of 2019 19 each days minutes was counter signed by the President of the committee viz., the first respondent. It appears from the minutes, as recorded by the Secretary, viz., respondent No.14 that the members of the committee had participated in the meeting only for the purpose of declaring their resignation. It is also relevant to note that going by the minutes of the meeting, as recorded by the Secretary, viz., respondent No.14 Smt.Usha was permitted to participate in the meeting even after resigning from the committee on 30.1.2018. If respondent Nos. 2 to 8 herein/writ petitioners 2 to 8 had actually submitted their resignation letters to the President then, naturally, she would have made endorsement revealing their receipt on the said letters itself. If she had also decided to resign, as contended by respondent No.14, there was no reason for her to decline to make appropriate endorsement on them. 9. In paragraph 6 of the reply affidavit to the memo dated 11.12.2018 of the learned Senior Government Pleader, filed by the first respondent herein/first petitioner who was the former President of the Society on behalf of the other petitioners as well, she had categorically stated thus:- “It is pertinent to note that the alleged resignation letters, if at all assumed to be submitted, ought to have been submitted to the President of the society. However, no such letter was submitted to me (President) by any of the other petitioners. This is also W.A.No.1596 of 2019 20 evident from the false endorsements/attestation regarding signature made by the Secretary in the letters much later. One of the members has obtained copies of the alleged resignation letters from the Public Information Officer, Office of the Assistant Registrar of Co-operative Societies (General), Sankharabhavan, Puthiyara, Kozhikode. The said copies obtained under Right to Information Act are produced herewith.” It is also to be noted that seven of the writ petitioners have filed individual affidavits before this Court in the writ proceedings to the effect that they had not resigned from the committee as alleged and that the letters of their resignation were created by forgery. Along with the reply affidavit to the memo dated 11.12.2018 of the learned Senior Government Pleader, filed by the first respondent herein/first petitioner on behalf of all the petitioners, the copies of the alleged letters of their resignation obtained under the Right to Information Act from the office of the Assistant Registrar of Co-operative Societies by one of them, are produced as Exts.P11 to P11(g). In this context, it is relevant to note that along with the memo dated 11.12.2018 filed by the learned Senior Government Pleader the alleged letters of resignation submitted by respondents 1 to 8 herein/the writ petitioners, were produced by the learned Government Pleader pursuant to the direction of this Court on 7.12.2018. A comparison of the aforesaid two sets of alleged letters of resignation of respondents 1 to 8 herein is again startling. It would W.A.No.1596 of 2019 21 reveal that in none of the alleged letters of resignation produced along with memo dated 11.12.2018 by the learned Senior Government Pleader the seal and signature of the then Secretary of the Society viz., respondent No.14 are affixed whereas, Exts.P11 to P11(g) alleged letters of resignation did carry seal and signature of the Secretary of the Society. The Senior Government Pleader had filed another memo dated 19.6.2019 in the writ petition for producing letter dated 08.02.2019 (sic., 2018) of the Assistant Registrar (General) Kozhikode and letter dated 02.02.2018 of the Secretary of Chaliyam Vanitha Cooperative Society. However, both the documents produced along with the said memo are copies of letter dated 08.02.2019 (sic; 2018) of the Assistant Registrar (General) Kozhikode. It is evident from the said letter dated 08.02.2018 that it was the Secretary of the society who submitted application for appointment of Administrative Committee/ Part-Time Administrator dated 2.2.2018 and along with the same she had also forwarded 8 resignation letters. It is evident from the same the said application dated 2.2.2018 and the letters of resignations received were forwarded by Assistant Registrar (General) Kozhikode to the Joint Registrar (General) Kozhikode only on 9.2.2018 and obviously, on the same day itself Joint Registrar (General) Kozhikode passed Ext.P9 order. It is evident from two of the alleged letters of resignation W.A.No.1596 of 2019 22 acted upon by the Joint Registrar, produced by the learned Senior Government Pleader, that they are undated. In this context, it is also relevant to note that the 6[th] respondent in the writ petition/the 14[th] respondent herein who was the then Secretary of the Society filed an additional counter affidavit obviously to deny the allegation of the writ petitioners that she had fraudulently made the minutes and the letters. But then, her revelation therein is more startling. What she had stated in the said additional counter affidavit is that she had identified the signatures of the committee members including the President for the purpose of further action for the Department. If she had actually verified the same from the office soon on their receipt from the first petitioner/the President the seal and signature of the Secretary should have been present in both the sets of letters of resignation. The very fact that the alleged letters of resignation which were acted upon by the Joint Registrar to pass Ext.P9 order, produced along with the memo by the learned Senior Government Pleader, would reveal that at the relevant point of time the seal and signature of the Secretary was not there in those alleged letters of resignation. At the same time, when copies of the alleged letters of resignation was sought for under the Right to Information Act, in the alleged letters of resignation the seal and signature of the 14[th] respondent viz., the Secretary of the Society W.A.No.1596 of 2019 23 were affixed. It means that the Secretary put the seal and made the signature on the copies of the letters of resignation only some time after they reached the Office of the Assistant Registrar (General), Kozhikode. The reason, discernible from the alleged letter of resignation submitted by the first petitioner/President is the acceptance of resignation of the other Directors of the Society. But, then, it is addressed to the Board of Directors. Now, the memo dated 10.11.2018 by the learned Senior Government Pleader would reveal that the Joint Registrar has received a report from the Assistant Registrar. Thus, it can be said that the Assistant Registrar, based on the letters of resignation sans sanctity and without enquiring into their genuineness submitted a report that the democratically elected members of the committee of the Society had resigned and there occurred loss of quorum to conduct meeting. Had the question whether the members had submitted their resignation been put to the members concerned, certainly, this kind of a situation would not have occurred. The letters of resignation except the one allegedly submitted by the first petitioner/the first respondent herein are addressed to Secretary/President, Chaliyam Vanitha Cooperative Society. As stated earlier, if they were actually handed over by the members to the president, the first respondent herein, what was the necessity for them to address the letters of resignation to the W.A.No.1596 of 2019 24 Secretary and to the President when the President was in office. Taking note of all the aforesaid circumstances, we are of the considered view that the learned Single Judge was perfectly justified in declining to accept the case of the 14[th] respondent, the then Secretary of the society. ## 10. In the decision in **State of Madhya Pradesh and** ## **Others** v. **Sanjay Nagayach and Others** reported in **(2013) 7 SCC** **25** while considering the challenge against supersession of committee of a Co-operative Society under the Madhya Pradesh Co-operative Societies Act, 1960 the Apex Court held that the Joint Registrar of Cooperative Societies is bound to pass orders of supersession after complying with the statutory mandates. Furthermore, it was held therein that a legally elected Board of Directors could not be put out of office by an illegal order. In case of a non-compliance with the statutory requirements the illegally superseded committee has to be reinstated so as to enable it to complete the remaining period of the term for which it was elected. We are of the view that the same should be the position in a case where a committee of a society is replaced by the appointment of an Administrator/Administrative Committee for a non-existent reason. The procedures required to be followed are to be followed without fail, even in a case of enbloc resignation of existing W.A.No.1596 of 2019 25 committee of a society or where vacancies occur in a committee either by resignation or otherwise and the remaining members cannot constitute the quorum for the meeting of the committee. In the decision in **Natraj Gownder** v. **Registrar** reported in **2008 (2) KLT 335** a learned Single Judge of this Court held that the provisions of the KCS Rules to the extent it provides that resignation shall have effect only from the date of its acceptance by committee is ultra vires Section 33(1) read with explanation thereto and therefore, it is void as regards elected members. In that regard, it is relevant to refer to Section 33(1) of the KCS Act and Rule 38(4) of the KCS Rules. Section 33(1), to the extent it is relevant, reads thus:- “ **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 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) that a new committee cannot be constituted before the expiry of the term of office of the existing committee; or W.A.No.1596 of 2019 26 (aa) there is stalemate in the constitution or functions of the committee; (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 Co-operative 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 Cooperative 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. W.A.No.1596 of 2019 27 _**Explanation**_ .- For the purpose of this sub-section, a tender of resignation by a member of the committee shall have the effect of terminating his membership from the Committee.” Rule 38(4) of the KCS Rules reads thus:- “ **38. Constitution of committee, resignation and removal from membership:- (1)** When a committee is constituted under section 28, the Returning Officer shall inform the details of elections to the State Co-operative Election Commission, forthwith. The Election Commission shall appoint a Presiding Officer to elect the President and other office bearers. The Presiding Officer shall convene the committee within seven days of election to the committee or before the expiry of the term of existing committee, whichever is earlier, and the committee so convened shall elect its president and other office bearers as per rule 43, and also by resolution authorize the officers concerned to take charge from the outgoing office bearers. xxxxx xxxxxxx xxxxxx (4) The President, on receipt of a resignation, shall within seven days from the date of receipt thereof place it before the committee of the society for consideration if the member is an elected person or send it to the authority who nominated the member, if he is a nominee. The resignation shall have effect only from the date of its acceptance by the committee or the authority who nominated the member concerned as the case may be. The fact of its acceptance or otherwise shall also be communicated to the member concerned. In the case of nominees the fact of acceptance or otherwise shall be communicated to the society also.” W.A.No.1596 of 2019 28 When the said provision is held as void only to the aforesaid extent it can only be taken that the rest of the provisions thereunder are still in the statute and therefore, the question is whether those provisions are bound to be followed strictly in order to make a valid order appointing an Administrator/Administrative Committee in a case where such a situation has occasioned owing to the en bloc resignation of the existing committee or where vacancies occur in the committee either by resignation or otherwise and the number of remaining members could not constitute quorum for the meeting of the committee. In the said decision the learned Single Judge considered the relevance and necessity of ensuring that resignation is not the result of fraud, misrepresentation or such other vitiating elements. True that, in that case, it was held that when an elected member of the Co-operative Society tenders his resignation to the President of the committee the requirement of the President to place the resignation before the committee for consideration does not clothe the committee with any role in the matter of acceptance or non-acceptance of the registration, inasmuch as, the resignation takes its effect on it being tendered to the President and does not depend upon the acceptance by the committee or even the President. After holding thus, in that case, the learned Single Judge went on to consider the question whether respondents 4 W.A.No.1596 of 2019 29 and 5 therein had resigned from the committee. The fact that two papers were submitted to the President as the resignation letters of respondents 4 and 5 is not in dispute. It was held:- “10. …................ The materials on record appear to suggest that the question whether those were resignation letters of respondents 4 and 5 may require to be dealt with. This is because resigning from an office cannot be the result of fraud, misrepresentation or such other vitiating elements as it would take away the credibility of the resignation when it is put against a person, who is alleged to have resigned. …......................... But, it has to be necessarily decide as to whether the person, who is alleged to have resigned had decided for himself to resign and has issued a resignation letter in exercise of his decision to resign. Different relevant aspects may have to be considered to decide this issue. The question would be as to who ought to decide, in the event of such dispute ? 11. S.33(1) provides that before making an order as enjoyed therein, the Registrar shall invite objections to the making of the order and consider such objections. This is the net result of the first proviso to S.33(1). That requirement can be dispensed with by taking ” recourse to the second proviso. (emphasis added) 11. How can it be said that such statutory requirements enjoined under section 33 need be followed only in cases where 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 the office of the existing committee expires. According to us, Section 33(1)(b) that W.A.No.1596 of 2019 30 provides the steps to be taken under different situations contemplated under Sections 33(1), 33(1)(a), 33(1)(aa) and the situations contemplated under Section 33(1)(b). A perusal of Section 33(1) would reveal that the exercise of power thereunder by the Registrar could be either suo motu or on the application of any member of the society. In the case on hand, a perusal of Ext.P9 would reveal that the Joint Registrar passed the same on receipt of a report that in the Society 8 members of the committee including the President had resigned. Admittedly, in this case, the Assistant Registrar submitted such a report to the Joint Registrar pursuant to the intimation regarding resignation of the members from the Secretary of the Society. There is absolutely no case for the official respondents that the veracity of the intimation, in other words, its correctness, from the Secretary was enquired into before acting upon it. We have already referred to in detail the dubious circumstances attended to the letters of resignation forwarded by the 14[th] respondent to the Assistant Registrar for action for appointment of administrative committee or a Part-time Administrator. It is in this context that the case of respondents 1 to 8 herein/the writ petitioners who allegedly resigned assume relevance. They in unambiguous terms contended that they had never resigned from the committee of the Society. The matter of concern is how could such a situation be created W.A.No.1596 of 2019 31 in a society. Whether in respect of a democratically elected committee left with years to complete its term, merely because the Secretary made an application along with alleged letters of resignation ostensibly lacking sanctity how could they be acted upon and the committee be replaced, without making any kind of inquiry to ascertain the correctness even when some of the members are still remaining in the committee. 12. In the decision in **Gireesh Kumar** v. **Joint Registrar of Co-operative Societies (2013 (3) KLT SN 101 (C.No.105)** a learned Single Judge of this Court after referring to the decisions in **Deputy Registrar of Co-operative Society & another** v. **P.K.George (1974 KLT 189)** , **Varma** v. **Joint Registrar (1987 (2) KLT 420)** and **Sadasivan** v. **Joint Registrar (1994 (2) KLT 238** ) held thus:- “The Explanation to S.33(1) states that the tendering of resignation by a member of the committee shall have the effect of terminating his membership from the committee. As to how he should tender his resignation is laid down in Rule 38(3) namely that it should be tendered to the President of the committee. As soon as the resignation is so tendered it takes effect and the member ceases to be a member of the committee. Though sub-rule (4) requires the President to place the resignation before the committee for consideration, the committee has no role to play in the matter of acceptance or non-acceptance of the resignation, inasmuch as it takes effect on its being tendered to the President, and the member ceases to be W.A.No.1596 of 2019 32 a member when it is tendered to the President. When the consequence of tender of a resignation is so serious and the member ceases to be in the committee immediately on such tender, it is imperative that the mode prescribed for tender of resignation is strictly followed, before it can take effect as a resignation. The procedure prescribed is mandatory. The Act or the Rules do not prescribe any other mode of tendering resignation by a member of the committee. It is beyond controversy that when an act is required to be done in a particular manner, it shall be done in that manner and not in any other. Other modes of performance are necessarily forbidden. This is so even if there are no negative words. The position is well established since the decision of the Privy Council in Nazir Ahamad v. Kind Emperor, AIR 1936 P.C. 253. If this be so, the only permitted mode of resignation of a member of a committee is to tender it to the President, except in the exceptional circumstance postulated in Varma's case, to which I shall refer later.” Furthermore, it was held that a committee would not cease to exist when once the number of members got reduced below the quorum. It is held that there is no automatic termination of a committee even when it ceases to have quorum. No such automatic cesser of the term is provided in the Act or the Rules. It was held that unless and until the Registrar acts in the manner provided in Section 33, the remaining members of the society do not cease to be members of that committee, though they may not be in a position to act or transact business without the necessary quorum, except carrying on the day today administration. The Act does not envisage a vacuum in the management of a Co-operative Society. Either a Managing Committee W.A.No.1596 of 2019 33 is there or an Administrator comes in its place – there is no hiatus. We refer to the said position to point out that the genuineness of the factum of resignation could have been verified by putting it to the members allegedly resigned or the remaining members who did not tender resignation. In such circumstances, acting blindly on mere letter of the Secretary of a society beside the existence of dubious circumstances cannot be said to be a rightful and dutiful exercise of power. We do not propose to probe the matter any further, in view of the present position revealed by the learned Government Pleader that the term of the committee was over and then, after the new committee has assumed charge. We adverted to all the aforesaid circumstances not only for the purpose of showing the absolute absence of reasons warranting interference with the impugned judgment but also reveal the casual approach from the part of the authorities in handling a serious issue concerned with the administration of a society, which is a democratic institution at the grass root level. Undated resignation letters of members which did not carry endorsement of the President of the Society were also acted upon. For that purpose, evidently, the signatures of the members were got verified and countersigned by the Secretary of the society. All these reveal the lack of diligence, care and caution required for the authorities in dealing with serious matters W.A.No.1596 of 2019 34 touching the administration of a society. In such circumstances, we have no hesitation to hold that the provisions under Section 33(1) of the KCS Act and the provisions under Rules 38(3) and 38(4), of the KCS Rules to the extent it was not declared as void by this Court are there in the statute to eschew any kind of fraud or unacceptable practice in the matter of bringing down an elected committee of a society. Toppling a committee of a society in a manner like the one on hand would amount to torpedoing democracy which cannot be accepted in law. The upshot of the discussion is that there is is no merit in this appeal. The appeal stands dismissed. The Registrar shall forward a copy of this judgment to the Registrar of Co-operative Societies for the purpose of ensuring that instances of like nature did not occur elsewhere. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **N.NAGARESH Judge** TKS