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1985 DIGILAW 27 (KER)

SOMASUNDARAM v. JOINT REGISTRAR

1985-02-01

U.L.BHAT

body1985
Judgment :- 1. Petitioner is the Vice-President of second respondent co-operative society. On 24-10-1984 first respondent, Joint Registrar of Co-operative Societies issued Ext. P1 order nominating respondents 3 to 5 as members of the committee or Board of Directors under S.31 of the Kerala Co-operative Societies Act (for short'the Act'). This original petition is filed seeking to quash Ext. P1. Grounds urged on behalf of the petitioner are that nominations made are mala fide, that first respondent has no competency to make nominations and that respondents 3 to 5 not being members of the society and not being eligible to be members of the society cannot be so nominated. 2. The nominations are made under S.31 of the Act. Under S.31 of the Act, where the Government have subscribed to the share capital of a society or have assisted indirectly in the formation or augmentation of the share capital of a society as provided in Chapter VI or have guaranteed the repayment of principal and payment of interest on debentures issued by a society or have guaranteed the repayment of principal and payment of interest on loans and advances to a society, the Govt, or any authority specified by the Government in that behalf shall have the right to nominate not more than three persons or one-third of the total number of members of the committee of the society, whichever is less, to be members of the committee. R.37 of the Kerala Co-operative Societies Rules deals with procedure for appointment of nominees and their removal from the committee of a society. The rule states that appointment of nominees of Government under S.31 shall be made, in the case of Apex societies by the Government and in the case of other societies by the Registrar. Second respondent society is not an Apex society and therefore under R.37 nominations are to be made by the Registrar. 3. Under S.31 of the Act, the right of nomination vests in the Government; however, nominations could also be made by authority specified by the Government in that behalf. Reading S.31 of the Act and R.37 of the Rules together, it must follow that in the case of societies other than Apex societies, Government have specified Registrar as authority to make nominations. Reading S.31 of the Act and R.37 of the Rules together, it must follow that in the case of societies other than Apex societies, Government have specified Registrar as authority to make nominations. The question which arises for consideration is whether the first respondent, Joint Registrar of Co-operative Societies, is a "Registrar" for the purpose of R.37 of the Rules. 4. The Rules by themselves do not indicate who "Registrar" is. The Rules do not define the expression "Registrar". The definition is found only in the Act. S.2 (p) of the Act says that unless the context otherwise requires, "Registrar" means the Registrar of Co-operative Societies appointed under S.3 (1) of the Act and includes any person on whom all or any of the powers of the Registrar under this Act are conferred. Sub-sec. (1) of S.3 states that the Government may appoint a person to be Registrar of Co-operative Societies f or the State. Sub-sec. (2) states that the Government may by general or special order confer on any person all or any of the powers of the Registrar under the Act. By virtue of notification No. 255/69/AD dt. 28-6-1969 published in the Kerala Gazette No.27 dated 8-7-1969, Government of Kerala have in exercise of powers conferred by S.3(2) of the Act conferred on the Additional Registrar and Joint Registrars all powers of the Registrar under the Act. That being so, Joint Registrar on whom powers of the Registrar are conferred under S 3(2) of the Act is "Registrar" as defined in S.2 (p) of the Act. 5. According to the petitioner. Joint Registrar, by virtue of operation of S.2(p) and S.3 (2) of the Act read with the notification can exercise only the powers conferred on Registrar by the provisions of the Act and cannot exercise the power conferred on the Registrar under R.37 of the Rules. That is because, it is argued, under S.2 (p) and 3 (2) of the Act and the notification the "powers of Registrar under the Act" only are conferred on Joint Registrar. Registrar, for the purpose of R.37 can mean "Registrar appointed under S.3 (1) of the Act" and cannot include Joint Registrar who is to be treated as Registrar by virtue only of conferment of power of the Registrar under the Act! Registrar, for the purpose of R.37 can mean "Registrar appointed under S.3 (1) of the Act" and cannot include Joint Registrar who is to be treated as Registrar by virtue only of conferment of power of the Registrar under the Act! Therefore, according to petitioner, Joint Registrar cannot nominate members of the committee under S.31 of the Act by virtue of the power conferred under R.37 of the Rules. 6. It is true that the Act does not vest in the Registrar the power of effecting nominations under S.31 of the Act. If such power had been conferred on Registrar by the provisions of the Act, as a consequence of the notification referred to above. Joint Registrar would naturally have the power of making nominations under S.31 of the Act. The power under S.31 of the Act is vested in the Government or "any authority specified by the Government in that behalf". What the Government is required to do is to specify "an authority in that behalf". Such specification is made by virtue of R.37 of the Rules. What the Rule does is to specify the authority. Registrar has been specified as such authority. Need to specify "Registrar" as nominating authority arises because, but for such specification, Registrar has no such authority under S.31 of the Act. This is so irrespective of whether Registrar is the one appointed as such under S.3(2) of the Act or is Joint Registrar deemed to be Registrar by virtue 'of conferment in terms of power of Registrar under the Act. The expression "Registrar" is not defined in the Rules. Perforce, we have to look to the definition of "Registrar" as it occurs in the Act. "Registrar" as defined in the Act read in the light of the notification would include Joint Registrar. Therefore, when the Rule specifies the nominating authority as Registrar, it means that the Registrar as defined in the Act is the nominating authority. That is how the Government have specified the authority. I therefore hold that the expression "Registrar" used in R.37 of the Rules would include Joint Registrar. First respondent has competency to make nominations under S.31 of the Act. 7. The next contention is that respondents 3 to 5 are not members of the society and are not eligible to be members of the society and therefore they cannot be nominated under S.31 of the Act. First respondent has competency to make nominations under S.31 of the Act. 7. The next contention is that respondents 3 to 5 are not members of the society and are not eligible to be members of the society and therefore they cannot be nominated under S.31 of the Act. S.31 of the Act does not state that persons to be nominated thereunder must be members of the society or must be qualified to be members of the society. Purpose of S.31 is to safeguard the interests of the Government which have either subscribed to the share capital or have in some way involved itself or have held itself responsible in regard to the affairs of the society. In such circumstances, obviously, Government must have representation in the committee or the Board of Directors. It is to safeguard the interests of the Government which have involved itself in the affairs of the society that power is given to the Government or a specified authority to make nominations. Power of the Government in such circumstances cannot in principle be limited to the right to nominate a member or a person qualified to be a member. What S.31 contemplates is nomination of "persons" as members of the committee and not nomination of "members" of the society as members of the committee. 8. Provisions of S.31 of the Act may be compared with advantage with the provisions of S.28 of the Act, S.28 deals with appointment of committee. It is the general body of a society which is to constitute a committee in accordance with the bye-laws. In the normal course, therefore, the committee is to consist only of members of the society, subject to the provisions of the bye-laws. Second proviso to sub-sec. (1) states that where the bye-laws so provide, the Government or Registrar may nominate all or any of the members of the committee for such period as may be specified in the bye-laws. This again would have reference to nomination of members of the society. Sub-sec. (2) of S.28 deals with disqualification for appointment. So far as powers are concerned, the Act has not drawn any distinction between members elected by the general body and members nominated under S.28 of the Act. But the position of the nominees under S.31 is different. This again would have reference to nomination of members of the society. Sub-sec. (2) of S.28 deals with disqualification for appointment. So far as powers are concerned, the Act has not drawn any distinction between members elected by the general body and members nominated under S.28 of the Act. But the position of the nominees under S.31 is different. A person nominated under S.31 of the Act is to hold membership during the pleasure of the Government or the specified authority. He shall not take part in the discussion of any no confidence motion or vote on any such motion. R.44 of the Rules deals with disqualification for membership of the committee. The rule lays down disqualifications in regard to eligibility of members of the society for being elected or appointed as member of the committee under S.28. The provision regarding disqualification does not apply to persons to be nominated under S.31 of the Act. This again would strengthen the conclusion that nominees under S 31 are not required to be members of the society or even persons qualified to be such members. Decision of this Court in Edavanna Service Co-operative Bank Ltd. v. Shouka-thali (1981 KLT. 335) to the effect that R.44 of the Rules does not apply to a nominee under S.31 of the Act lends support to the above view. In this view, even assuming that respondents 3 to 5 are not members of the society and are not qualified to be such members, there cannot be any impediment to their nomination under S.31 of the Act. 9. Petitioner has alleged mala fides in a vague way. There is no material placed before the Court to support the allegation of mala fides and the allegation is therefore rejected. No ground has been made out to quash Ext. P1. Original Petition is dismissed but in the circumstances without costs. Dismissed.