Dismissed

The State Co-Operative Election Commission v. N.P. Paulose

Kerala HC6 Jul 2017WA/1410/2017

Case brief

AI extract

What is this about?

The High Court dismissed an appeal by the State Co-operative Election Commission against a single Judge's order directing an adhoc committee comprising the President and two Managing Committee members. The Court held the trial court did not encroach upon the Registrar's discretion and upheld the necessity to restore the Federation's administration while bye-laws pending certification were correcte

What did the court decide?

Writ appeal dismissed; no interference with the single Judge's order; Registrar directed to certify bye-laws within one month.

The State Co-Operative Election Commission Vs N.P… — Company and Corporate | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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THURSDAY, THE 6TH DAY OF JULY 2017/15TH ASHADHA, 1939

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WA.No. 1410 of 2017 IN WP(C).18310/2017

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AGAINST THE JUDGMENT IN WP(C) 18310/2017 DATED 05-06-2017

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APPELLANTS/RESPONDENTS IN THE WP(C) :

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THE STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM-695001.

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REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THIRUVANANTHAPURAM 695001.

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BY SR. GOVERNMENT PLEADER, SRI. M.A. ASIF

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RESPONDENT/PETITIONER IN THE WP(C) :

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N.P. PAULOSE

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CHAIRMAN, MANAGING COMMITTEE, KERALA STATE CO-OPERATIVE MARKETING FEDERATION

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LTD.NO.F.1107, PB NO.2024, GANDHINAGAR, KOCHI-682 020.

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BY ADV. SRI.GEORGE POONTHOTTAM

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Navaniti Prasad Singh, C.J. & Raja Vijayaraghavan V., J.

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W.A. No. 1410 of 2017

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- - - - Dated this the 6^th day of July, 2017

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JUDGMENT

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Navaniti Prasad Singh, C.J.

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State Co-operative Election Commission and Registrar of Co-operative Societies are in appeal against part of the judgment

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of the learned single Judge dated 05.06.2017 passed in W.P.(C) No.18310 of 2017.

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The only part they are aggrieved is as follows :

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“12. However, at this point of time, learned counsel for the petitioner submitted that, if a fresh resolution is to be drawn after the amendment is approved by the General Body, by that time, the period of the committee will expire and necessary provisions shall be made so as to undertake the day-to-day administration of the Federation. In that view of the matter, I am of the considered opinion that, in the interest of justice, it is only appropriate that a direction is issued to constitute an Administrative Committee with the President and two other members from the existing Managing Committee in accordance with law, at the earliest possible time, so as to avoid any stalemate in the functioning of the Federation. There will be a further direction to complete the election process in accordance with law, at the earliest, and at any rate within two months from the date of receipt of a copy of this judgment.”

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WA No.1410 of 2017

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The learned Government Pleader states that the learned

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single Judge ought not to have dictated the constitution of the Administrative Committee which is the prerogative or the discretion of the Registrar in terms of Section 33(1)(b) of the Co-operative Societies Act.

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We have heard learned Government Pleader and learned counsel for the writ petitioner/1^st respondent in this appeal and with their consent, we are disposing of this appeal at this stage itself.

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We have looked into the nature of controversy in the case. The controversy was that the bye laws of the Co-operative Society, which is an apex Co-operative Society, provided that the Managing Committee would consist of 24 members from different sources, and the quorum for a meeting would be 7. These bye laws are duly registered and certified bye laws. In 2013, there were substantial amendments to the Kerala Co-operative Societies Act whereby inter alia the provision with relation to constitution of Managing Committee and its composition was also amended as per Section 28(1A). It is now provided that the

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WA No.1410 of 2017

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Managing Committee of an apex body would consist of 21 members from different sources and the quorum would be at least 50% of the Committee. Thus, these statutory amendments changed the situation and now after the amendment of the Act in 2013, the bye laws were in conflict with the Act and by virtue of Section 13A of the Act to the extent of conflict, the bye laws would be void. It appears that the Co-operative Society was either not aware of this change or they had ignored this change or it went unnoticed. Recently having become aware of the position, the General Body meeting was called and in the General Body meeting the bye laws were amended to bring it in consonance with the Act. That having been done, amended bye laws were then filed before the Registrar for registration and certification which indisputably is pending.

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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

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WA No.1410 of 2017

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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 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

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WA No.1410 of 2017

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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.

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In the present case the learned single Judge was aware of the situation under which the adhoc committee had to be formed and to safeguard the interest of the Co-operative Society ordered that the adhoc committee would be of three members who would be the President of the Co-operative Society and two other members. In other words, he would not be either a Government Officer or a non-member.

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On the facts noted above, we do not consider it a proper case to interfere, because the State and the Election Commission is only aggrieved by the fact that their discretion has been taken away. Considering the facts, consequence of events and in order to preserve the Co-operative Society, we do not think that the order of the learned single Judge needs interference.

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However, before closing we would only like to observe that the bye laws are pending with the Registrar of Co-operative

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Societies which have to be considered for certification and

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WA No.1410 of 2017

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registration at an early date. As the constitution of the Managing

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Committee hinges on the bye laws being amended , we expect the Registrar to expeditiously deal with the matter and conclude the same at the earliest, if possible, within a period of one month.

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This writ appeal is accordingly dismissed.

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Sd/-

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Navaniti Prasad Singh, Chief Justice

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Sd/-

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Raja Vijayaraghavan V., Judge

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ttb/06/07

The State Co-Operative Election Commission v. N.P. Paulose

Case brief

What is this about?

What did the court decide?

The State Co-Operative Election Commission v. N.P. Paulose

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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