IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32813 of 2008(F)
1. M.B.SAHYAN, CHAIRMAN, CIRCLE
... Petitioner
Vs
1. THE REGISTRAR OF OCOOPERATIVE SOCIETIES,
... Respondent
2. THE JOINT REGISTRAR OF CO-OPERATIVE
3. THE ASST. REGISTRAR OF COOPERATIVE
4. THE SECRETARY, CIRCLE CO-OPERATIVE
5. THE DEPUTY REGISTRAR (ADMINISTRATION)
For Petitioner :SRI.V.SETHUNATH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :24/11/2008
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).No.32813 OF 2008
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Dated this the 24th day of November, 2008
JUDGMENT
The petitioner was the Chairman of the managing
committee of a Circle Co-operative Union, which has been found
to have lost its quorum of 8 members in terms of the prescription
in Rule 142 (3) of the Kerala Co-operative Societies Rules, 1969,
hereinafter, ‘the Rules’ for short.
2. Going by the counter affidavit, the prescribed strength of
the committee is 15, including two ex-officio members. This
means that 13 members have to be elected. But, only 11
members were elected and they assumed office on 10.6.2005.
Among them, one became ineligible to continue from July, 2005;
one died in August, 2006; two others became ineligible some
time in 2006; another resigned in October, 2007 and another
became ineligible in November, 2007. The number of members
in the committee, therefore, fell to 7, which is below the
prescribed quorum of 8. For want of quorum, the Registrar
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issued the impugned Ext.P1, appointing the Deputy Registrar
(Administration), Pathanamthitta as officer under Section 88A of
the Kerala Co-operative Societies Act, 1969, hereinafter, ‘the
Act’, for short, to manage the affairs of the Circle Co-operative
Union. This is under challenge.
3. A reading of Section 88A would show that the power under
that provision, to appoint an officer on default or negligence of
members of a Circle Co-operative Union, is not one that would be
attracted to a case of fall in quorum, but, to situations of
persistent default, negligence in performance of duties,
commission of acts prejudicial to the interest of the Union, willful
disobedience or failure to comply with any lawful order or
direction given by the Registrar etc.
4. Chapter XIII among the Rules deals with Co-operative
Unions. Rule 129 provides for election to the committee of the
Circle Co-operative Union and Rule 138 provides a mandate that
interim vacancy of a member shall be filled up by election in the
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manner provided in those rules and the person so elected shall
hold office for the remaining term of office of the person in
whose place he was elected. Rule 129 (b) provides for the
drawing up of a resolution by the committee in office, to trigger
the electoral process. The prescription in Rule 138 that the
interim vacancy shall be filled up by election in the manner
provided in those rules essentially should have guided the
petitioner and his companions in the Circle Co-operative union to
draw up a resolution as and when the interim vacancies noted
above arose. Even according to the petitioner, no such
resolution was drawn in relation to any of the vacancies that
arose. Obviously therefore, the situation of inability to maintain
the quorum is essentially the making of the petitioner and his
companions in the Circle Co-operative Union in question. In the
absence of a quorum as prescribed in Rule 142 (3), the Circle Co-
operative Union cannot carry out its duties and responsibilities.
It is therefore that the Registrar was compelled to step in,
leading to the issuance of the impugned order.
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5. While it may be true that no situation referable to Section
88A of the Act; i.e., any vitiating element which could have
invited the penalty under Section 88A, is demonstrated or at
least alleged against the petitioner and his companions, it is
obvious that the committee cannot function owing to lack of
quorum. Under such circumstances, the only course that could
be adopted, as of now, is to direct the officer appointed as per
Ext.P1 to immediately draw up a resolution for the purpose of
conducting election to the interim vacancies available as on date,
including all unfilled vacancies, and communicate such
resolution to the competent authority in terms of Rules 129 and
138 of the Rules, so that, when the interim vacancies are filled
up, the Circle Co-operative Union would stand retrieved from the
status of having lost its quorum and could, therefore, function for
its remaining term.
6. While it could be pointed out, as attempted by the learned
Government Pleader, that on an action under Section 88A of the
Act, the committee itself stands removed and only a fresh
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election is possible, as already noticed, no grounds referable to
Section 88A is alleged or found against the petitioner and his
companions in the impugned Ext.P1. Therefore, that cannot be
treated as an order under Section 88A. If it were one under
Section 88A, it should also invite certain other consequences
owing to the quality of findings that have to be made to result in
an action under Section 88A.
For the foregoing reasons, this writ petition is ordered
directing that Ext.P1 will stand regulated by what is stated
herein and the situation in hand would be dealt with by the 5th
respondent, by immediately drawing up a resolution for the
purpose of conducting election to the interim vacancies which
are described in para 5 of the counter affidavit and such election
has to be conducted by the competent authority, at the earliest.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.