IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21082 of 2009(E)
1. M.C.ANTONY, PRESIDENT,
... Petitioner
Vs
1. THE JOINT REGISTRAR (G) OF CO-OPERATIVE
... Respondent
2. THE ASSISTANT REGISTRAR (G) OF
3. THE KUTTIKKADU FARMERS SERVICE
4. T.D.CHAKKUNNY, THOTTEPPURAM,
For Petitioner :SRI.V.G.ARUN
For Respondent :SRI.JOHN NUMPELI (JUNIOR)
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :03/08/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C.) No.21082 of 2009
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Dated, this the 3rd day of August, 2009
J U D G M E N T
The petitioner is the President of the 2nd respondent, a Co-
operative Society. The total strength of the Managing Committee is
13, out of which, 12 are elected and the 13th is the Managing
Director, an ex-officio member. In the last election that was held,
the petitioner, owing allegiance to the Janatha Dal (Secular),
contested as part of the Left Democratic Front. According to the
petitioner, the candidates sponsored by the Left Democratic Front
won all the 12 seats, out of which, 5, including petitioner owe
allegiance to the Janatha Dal (Secular). Finally, the petitioner was
also elected as the President of the Bank.
2. On account of subsequent political developments in the
State, there was split within the Left Democratic Front, and that led
the 4th respondent to move a no-confidence motion against the
petitioner. On its receipt, the Joint Registrar, authorised the 2nd
respondent, the Assistant Registrar, to convene a meeting of the
Managing Committee in terms of the provisions contained under
Section 28AA of the Kerala Co-operative Societies Act, 1969 and
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Rule 43A of the Kerala Co-operative Societies Rules. Accordingly,
the 2nd respondent issued Ext.P1 notice dated 17/07/2009
convening a meeting on 07/08/2009.
3. In terms of the bye-laws of the Society, if members of
the Board of Directors are absent without permission in four
meetings, they will lose their membership in the Board. The
petitioner states that after Ext.P1 notice was issued, meetings of the
Board of Directors were held on 18/07/2009, 20/07/2009 &
25/07/2009, and that the 7 members including the 4th respondent
remained absent in the said meetings. As a result of this, the
meetings did not have the minimum quorum, and therefore could
not transact any business. At that stage, Ext.P2 representation was
filed by the 4th respondent and other six members belonging to his
group, requesting the 2nd respondent to restrain the petitioner and
his group from convening any meeting of the Board of Directors of
the Bank. Accordingly, the 2nd respondent issued Ext.P3 order dated
24/07/2009 directing that in view of Ext.P2 complaint signed by 7
members of the Board of Directors, and as Ext.P1 notice for
convening the meeting to discuss the no-confidence motion is
already given, no further meeting of the Board of Directors, to make
the provisions of proceedings under Section 28AA of the Act and
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Rule 43A of the Rules infructuous, shall be convened. It is on
receipt of Ext.P3, the writ petition is filed.
4. The learned counsel for the petitioner mainly contends
that the Assistant Registrar has been authorised only to convene a
meeting of the Board of Directors, for considering the no-
confidence motion moved by the 4th respondent and others, and
that his power is only to convene the meeting and that he does not
have any power to issue an order in the nature of Ext.P3.
5. On the other hand, the 4th respondent filed his counter
affidavit and submits that the endeavour of the petitioner is totally
ill motivated. According to the 4th respondent, he or his group have
not received any notice of the meetings alleged to have been held
on 18 & 20th of July, 2009. In so far as the meeting allegedly held
on 25/07/2009 is concerned, it is stated that what he received is
Ext.R4(a) notice of meeting, which is an undated one, and that the
said notice was received only on 27/07/2009. It is stated that, the
attempt is to make it appear that four meetings were convened
before 07/08/2009, and to show that the 4th respondent and six
others were consecutively absent in all such meetings and hence
have ceased to be members of the Board of Directors. It is stated
that the object is that no-confidence motion moved by them will be
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ultimately defeated.
6. It is also pointed out that under Section 66 of the Act,
the Assistant Registrar is conferred with supervisory powers, and
the learned counsel for the 4th respondent has referred to
notification dated 08/07/2009 issued by the Government under
Section 3(2) of the Act, delegating the power of the Registrar to the
Assistant Registrar. The learned counsel also placed reliance on
Section 66A of the Act and contended that the Assistant Registrar,
by exercising the delegated power, is perfectly competent to issue
directions in the nature of Ext.P3.
7. The only question to be considered is whether in a
proceedings under Article 226 of the Constitution of India, where
the remedy available is discretionary, this Court should come to the
rescue of the petitioner.
8. As can be seen from the facts, the no-confidence motion
moved against the petitioner is scheduled to be considered in the
meeting to be held on 07/08/2009. Going by the bye-laws, if a
member of the Board is absent without permission in four meetings,
he will lose membership. Subsequent to 17/07/2009, when Ext.P1
notice of meeting was issued, the petitioner claims to have already
convened three meetings, when the 4th respondent and his group
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were absent. The present endeavor is to call the 4th meeting, and if
the 4th respondent and his group remain absent in that meeting
also, they will automatically lose membership in the Board of
Directors. If that happens, in the meeting that is to be held on
07/08/2009, the Board of Directors will have no quorum, and that
will lead to the appointment of an Administrator. Therefore, the
intention of the petitioner is only to avoid a situation, where the
petitioner will have to face the no-confidence. This intention
certainly lacks bonafides, and in my view, irrespective of the
contentions on the merits, this Court will not be justified in invoking
its discretionary power under Article 226 of the Constitution of India
and help the petitioner to evade the no-confidence motion.
9. In my view, the Assistant Registrar, who has been
authorised to convene the meeting, should also be conceded the
power to ensure that status quo continues until the no-confidence
is considered by the Board of Directors. As otherwise, it will be
open to the manipulators like the petitioner to wangle the situation
in such a manner that the no-confidence is avoided.
The writ petition fails, and is accordingly dismissed.
(ANTONY DOMINIC, JUDGE)
jg