V.P. Sasindran vs State of Kerala

Antony Dominic, J.—This Writ Appeal arises from the judgment of the learned Single Judge dismissing W.P. (C) No. 29108/2012 filed by the appellant.

The Writ Petition was considered along with a batch of Writ Petitions, where, Kerala Co-operative Societies (Amendment) Act, 2012 (Act 13 of 2012) which replaced Ordinance No. 18 of 2012 was challenged before this Court and by the judgment under appeal, the learned Single Judge upheld the validity of the Act. In this context, it is to be noticed that by the judgment in W.A. No. 1511/2013, this Court has already upheld the judgment of the learned Single Judge, upholding the validity of Act 13 of 2012 and the Ordinance which preceded it.

Apparently, because of this constraint, the learned counsel for the appellant did not argue anything on the validity of Act 13 of 2012, but confined his submissions to the ineligibility of 65 Societies to participate in the General Body Meeting held on 07.12.2012. This submission was made in the following factual background.

According to the appellant, by Act 13 of 2012, Sections 5(1)(a) and (b) were introduced. As a result, the membership position in the District Co-operative Bank that obtained as on 10.12.2007 was restored. According to him, as is evident from Exhibit P4 audit certificate for the year 2007-08, as on 10.12.2007, there were 663 member Societies on the rolls of the Ernakulam District Co-operative Bank. It is stated that instead of confining notice of the General Body Meeting that was scheduled on 07.12.2012 to the aforesaid 663 Societies, notices were issued to another 65 Societies also. It was, therefore, that the Writ Petition was filed on 5.12.2012 with a prayer to direct respondents 4. and 5 to permit only 663 member Societies to participate in the General Body Meeting that was scheduled on 7.12.2012.

For completion of facts, we may also add that on the basis of the notice, General Body Meeting was held as scheduled and in the meeting so held, as a consequence to Act 13 of 2012, bye-laws were also amended. The minutes were registered in accordance with the provisions of the Act and on that basis election was also held on 10.2.2013, which was in pursuance of Exhibit P10 election notification and Exhibit P12 final voters list.

Having regard to the fact that the meeting was held as scheduled on 07.12.2012, which eventually resulted in the election that was held on 10.2.2013, the first prayer in the Writ Petition, which is the main prayer in the Writ Petition, has become academic at this distance of time. Still, taking note of the contentions raised before us, we are proceeding to examine the rival submissions made by the counsel for the appellant, respondents 4 and 5 and the learned Special Government Pleader.

Insofar as the 20 Societies out of the 65 societies mentioned by the appellant are concerned, according to the appellant, those Societies were removed from the rolls of the District Co-operative Bank by Exhibit P6 resolution passed by the Executive Committee on 17.10.2007. It is stated that, so far that resolution has not been cancelled and in the absence of any such cancellation, those Societies could not have been permitted to participate in the meeting held on 07.12.2012. Insofar as this contention is concerned, learned counsel for the appellant relied on Rules 16(3) and (4) of the Kerala Co-operative Societies Rules, which according to him empowers the Committee of the Society to remove Societies from membership. First of all, Rule 16 which deals with conditions to be complied with for admission or membership in a Society, in our view, do not make provisions for membership in Apex or Central Societies. Therefore, this provision may not have any application, insofar as the District Co-operative Bank is concerned. Further, Rules 16(3) and (4) deals with removal of a member, who was ineligible for membership and those members who have acquired ineligibility subsequent to their admission. Secondly, even going by those provisions of the Rules, removal can be only by the Committee of the Society and that too after issuing notice and affording the member concerned an opportunity to make a representation in the matter.

Exhibit P6 produced by the appellant does not show that the requirement of notice or opportunity for hearing or to make a representation were complied with by them before framing the Resolution. Secondly, Exhibit P6 which is relied on as evidence of removal of 20 Societies is the proceedings of an Executive Committee and not that of the Committee of the Society, which alone is empowered under the Rules. We must also state that apart from those provisions, the other provisions of the Act providing for expulsion from membership is Section 17 and Rule 18. These provisions of the Act and the Rules show that power to expel in terms of these provisions is conferred only on the General Body and none else. We are also conscious of the contentions raised on behalf of the respondents that even Exhibit P6 was not communicated to the Societies concerned. In such a factual scenario and in view of the statutory provisions noticed by us, we are unable to hold that the alleged removal of the 20 Societies could not have been of any consequence.

Insofar as the remaining Societies are concerned, the fact that prior to 10.12.2007 those Societies were members of the District Co-operative Bank is not a matter in dispute. If that be so, they will get their memberships revived as a consequence of Act 13 of 2012. Once this factual position is accepted, the proceedings of the Part Time Administrator dated 23.11.2012 mentioned in the affidavit of the 5th respondent is of no consequence. However, the learned counsel for the appellant attempted to make distinction between membership and affiliation and according to the learned counsel, what is regained by the Society is only affiliation and not membership and that therefore, the Act did not recognise any voting power on affiliated members.

We have considered the above submission made. Insofar as the said contention raised by the counsel is concerned, it is true that in terms of the provisions contained in Section 20 of the Act, only members of a Society shall have voting right in the affairs of the Society. Insofar as the Apex or Central Societies are concerned, Section 8A of the Act provides that every Primary Cooperative Society or Central Co-operative Society, may, within such time and in such manner as may be prescribed, apply for affiliation to the concerned Apex Society or Central Society, as the case may be. Sub-section (2) has been explained by this Court in the judgment in K. Sivadsan Nair Vs. The Registrar of Co-operative Societies and Others, , wherein it has been held that where a decision on the application is not taken within 60 days as provided, there shall be deemed grant of affiliation in the Apex Society or Central Society, as the case may be. Rule 16E provides for the application for affiliation to Central or Apex Societies and in terms of these Rules, the application shall be filed in Form 31 of Appendix II. Though in Section 2(a), which defines Apex Society and Section 2(d) which defines Central Society, it is stated that the membership shall be confined to other Societies, unlike Rule 16 which talks about membership in Primary Societies, there is no corresponding provisions in the Act providing for membership in Apex Society or Central Society. In other words, the provisions of the Statute providing for affiliation in Apex and Central Societies can only be understood as equivalent to membership in the Societies concerned and it is those Societies which are allowed voting rights in the Apex Society or Central Society, as the case may be. Therefore, we cannot accept the contention now raised by the learned counsel for the appellant that there is distinction between membership and affiliation in the Apex Society or Central Society and that affiliated Societies do not have voting right recognised by the Act. This contention, therefore, has to fail. If that be so, the participation of Societies in addition to the 663 Societies which are mentioned in Exhibit P4 audit memorandum which is impugned before us cannot be held to be irregular.

Even otherwise, the consequence of acceptance of the contentions raised before us would be loosing of membership by those 65 Societies mentioned by the appellant. Without those Societies before us as parties to the Writ Petition and this appeal, such contentions could not have been accepted by this Court. In other words, the Writ Petition and this appeal are defective for non-joinder of necessary parties also. That itself would disentitle the appellant for relief in the Writ Petition.

For all these reasons, we are unable to accept any one of the contentions urged before us.

The Writ Appeal fails and is dismissed.