SUKUMARAN v. SUKUMARAN UNNI — 1976 DIGILAW 53 (KER)

Judgment :- 1. The question which arises for consideration in this Original Petition is whether the Registrar of Co-operative Societies who is authorised in terms of S.28 of the Kerala Co-operative Societies Act, 1969, to nominate members of the committee of a society, has the power to revoke such nomination. Before I refer to the relevant provisions,1 shall briefly state the facts. 2. By Ext. RI order dated 31-12-1975 the Additional Registrar of Cooperative Societies nominated three persons as members of the committee of the Palghat Whole-sale Co-operative Stores, Ltd. No. P. 525. The Additional Registrar again nominated by Ext. R2 dated 29-1-1976 two persons in the place of two of the three persons nominated under Ext. RI. He thus replaced two of the earlier nominees by the subsequent nominees. Ext. R2 is challenged by the petitioner, who is one of the elected members of the committee, on the ground that the Registrar has acted in excess of his authority. 3. I shall now read the relevant portion of S.28 of the Act; Appointment of committee. (1) The general body of a society shall constitute a committee in accordance with the bye-laws and entrust the management of the affairs of the society to such committee. Provided further that where the bye-laws so provide, the Government or the Registrar may nominate all or any of the members of the committee for such period as may be specified in the bye-laws (Italics supplied) (2) x x x (3) x x x (4) x x x" This provision enables the society to empower the Registrar by means of bye-laws to nominate persons to the committee. The period for which such persons may be nominated can be specified in the bye-laws. In the present case the society framed bye-laws providing for various matters including the power of the Registrar to nominate persons to the committee. I shall read bye-law 21 as it now stands: "Subject to such resolutions the general body may from time to time pass the entire administration of the stores shall vest in a Board of Directors. The Board of Directors shall consist of 11 members, 7 of whom shall be representatives of affiliated primary stores or societies having consumer wings, 3 nominees of the Registrar and the Managing Director. One of the nominees of the Registrar may be a representative of the District Co-operative Bank. The Board of Directors shall consist of 11 members, 7 of whom shall be representatives of affiliated primary stores or societies having consumer wings, 3 nominees of the Registrar and the Managing Director. One of the nominees of the Registrar may be a representative of the District Co-operative Bank. A Director who is representative of an affiliated society shall cease to serve on the board if the society concerned withdraws the delegation or when be ceases to be a member of the society. Directors other than the nominees shall be elected in the manner specified in R.35 of the Rules under the K. C. S. Act." (italics supplied) The bye-laws thus provide for three persons to be nominated by the Registrar in terms of the 2nd proviso to S.28. The bye-laws are, however, silent as to the period for which the nominated persons are to function. 4. Shri M.M. Cheriyan appearing for the petitioner contends that the Registrar has only such powers of nomination as are conferred upon him by the bye-laws in accordance with the provisions of S 28. The bye-laws are silent as to the period for which persons can be nominated by the Registrar, and he has therefore no power to either revoke the nomination or limit their term of office to a period shorter than the term of the committee itself. The normal life of the committee is three years under bye-law 22-A and therefore the presumption is that the persons who are nominated to the committee remain in office for the duration of the committee. If power has to be exercised by the Registrar to limit their term to a shorter period such power has to be conferred upon him under the Act or the bye-laws. 5. Shri Cheriyan further refers to R.37 of the Kerala Co-operative Societies Rules, 1969, the relevant portions of which, I shall now read: "37. Procedure for appointment of nominees and their removal from the committee of a society. (I) (2) The powers, duties, the functions and responsibilities of a person nominated to the committee under S.31 or under the bye-laws of a society by any authority including the State Co-operative Bank shall be the same as those of a member duly elected under the bye-laws. (I) (2) The powers, duties, the functions and responsibilities of a person nominated to the committee under S.31 or under the bye-laws of a society by any authority including the State Co-operative Bank shall be the same as those of a member duly elected under the bye-laws. It is contended that where a statute specifically provides that the powers, functions and responsibilities of nominated persons shall be the same as those of the elected members, the duration of the term of the nominated members, in the absence of any provision to the contrary, must be presumed to be the same as that of the elected members. The Registrar has no jurisdiction to revoke the nomination once made. Consequently Ext. R2 is illegal and of no effect. As an elected member of the committee, the petitioner claims to have the necessary locus standi to challenge the validity of Ext. R2. 6. Shri T. R. Govinda Wariyar appearing for the 1st respondent (one of the two persons nominated under Ext. R2), strongly refutes the above propositions. According to him, S.28 leaves it entirely to the members of the society to frame bye-laws for the purpose of enabling the Registrar to nominate the members of the committee. There is no provision under the Act or the rules curtailing the power of the members or the Registrar to limit the term of the nominated persons. If the bye-laws are silent as regards the period, the Registrar who acts in accordance with the bye-laws and S.28 of the Act has the power to nominate any person of his choice and further to limit the period as he deems fit. Counsel calls in aid S.15 of the Interpretation and General Clauses Act, 1125, which reads as follows: "Where, by any Act, a power to make any appointment is conferred, then unless a different intention appears, the authority having for the time being power to make the appointment shall also have the power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power." He also relies upon the decision of the Federal Court in Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil Valia Madhavi Amma (AIR. 1950 Federal Court 140). 1950 Federal Court 140). Referring to S.16 of the General Clauses Act, 1897, the Court observed: "The General Clauses Act has been enacted so as to avoid superfluity of language in statutes wherever it is possible to do so. Section 16 has codified the well-understood rule of general law that the power to terminate flows naturally and as a necessary sequence from the power to create. In other words, it is a necessary adjunct of the power of appointment and is exercised as an incident to, or consequence of, the power; the authority to call an officer into being necessarily implies the authority to terminate his functions when their exercise is no longer necessary, or to remove the incumbent for an abuse of those functions or for other causes shown." (See head note (b)) Relying upon the principles stated by the Federal Court, and S.15 of the Interpretation and General Clauses Act, 1125, counsel states that power to nominate, in the absence of any provision in the Act or the bye-laws, to the contrary, includes the power to revoke. Consequently Ext. R2 is perfectly consistent with the powers of the Registrar and is therefore valid. Counsel further states that R.37 has no application to the question involved in the present case. That rule only says that the powers, duties, functions and responsibilities of a nominated person shall be the same as those of an elected member. But there is nothing in the rule which warrants the construction that their term of office shall also be the same. Shri Wariyar further contends that the petitioner has no locus standi. Although a member of the committee of the society, he has no special interest or grievance to question the action of Registrar under Art.226 of the Constitution. 7. S.28, as stated earlier, provides that the Registrar may nominate all or any of the members of the committee in cases where the bye-laws so provide. The section does not confer any special power on the Registrar in that behalf. It is only an enabling provision which makes it possible for the Registrar to nominate members in terms of the bye-laws. In the absence of any provision to that effect in the bye-laws, the Registrar has no such power. The power of the Registrar to nominate, if the bye-laws so provide, is not a statutory power. It is only an enabling provision which makes it possible for the Registrar to nominate members in terms of the bye-laws. In the absence of any provision to that effect in the bye-laws, the Registrar has no such power. The power of the Registrar to nominate, if the bye-laws so provide, is not a statutory power. S.28 does not confer such power, but permits the society to do so by means of bye-laws which are contractual in nature and similar to the Articles of Association of a company. "They may be binding between the persons affected by them, but they do not have the force of a statute." (A. I. R.1970 S. C. 245 at 252). I am therefore of the view that the principles stated in S.15 of the Interpretation and General Clauses Act and the ratio of the decision in A. I. R.1950 F. C. 140 have no application to the authority conferred upon the Registrar by the bye-laws, albeit in terms of the second proviso to S.28 of the Act. In matters of nomination the Registrar was not empowered under the statute, but only under the bye-laws. 8. R.37(2) only refers to the powers, duties, functions and responsibilities of the members of the committee. It does not regulate their term of office. It is left to the society to provide for such matters by means of bye-laws. Bye-law 21 specifically provides for the elected members to remain in office for a period of three years. There is no provision in the bye-laws as regards the term of the nominated members, although the Act or the Rules do not restrict the powers of the society to regulate differently the term of the nominated members. I do not think that R.37 has any relevance to the point at issue. I am of the view that there is a lacuna in the bye-laws as regards the term of office of the nominated members. Such lacuna, as contended by the respondents, cannot be cured by reading into the bye-laws the principles of S.15 of the General Clauses Act, 1125. Consequently I am of the view that the Registrar has wrongly nominated new members in the place of persons who bad been already nominated. 9. Power to nominate was duly vested in the Registrar. Ext. RI nomination was validly made by him. Ext. Consequently I am of the view that the Registrar has wrongly nominated new members in the place of persons who bad been already nominated. 9. Power to nominate was duly vested in the Registrar. Ext. RI nomination was validly made by him. Ext. R2 nomination was, however, a wrong exercise of power in so far as it had the effect of removing from the committee two of the persons nominated under Ext. RI. This was an illegal exercise of power which would have been avoidable at the instance of the party affected by it. The action of the Registrar was, however, not a nullity in the sense that any person having a legitimate interest in the affairs of the committee, although not directly affected by it, could have challenged it. The Registrar exercised a power that was vested in him, but to the wrong end. That was a voidable act, but voidable only at the instance of the person against whom it was made. See Mohammed Haji v. Unni Moyi (1976 KLT.106) and the authorities cited therein. 10. The question, therefore, is whether the petitioner has the necessary locus standi to challenge the action of the Registrar in the present proceeding. Is he sufficiently aggrieved to invoke the jurisdiction of this Court under Art.226? The persons aggrieved by the wrong exercise of power by the Registrar, are in the first place, the co-operative society itself, and, in the second place, the nominated members who were removed from the committee. Neither of these persons has come forward to challenge the action of the Registrar. The petitioner, (applying the test adopted by the Supreme Court in Jasbhai Motibhai Deasi v. Roshan Kumar, Haji Bashir Ahmed (1976-1 S.C.C. 671) albeit a member of the committee, is not a person aggrieved by the action of the Registrar. In my view, the grievance of the petitioner, if any, is not sufficiently substantial or direct to enable him to invoke the Writ jurisdiction of this Court regarding a matter where persons directly and substantially affected have not thought it fit to challenge. In the circumstances, I am not in a position to see how the petitioner can be considered to have the necessary locus standi to sustain a petition under Art.226. I therefore dismiss the Original Petition. I would, however, direct the parties to bear their respective costs. Dismissed.