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1989 DIGILAW 531 (KER)

Antony Jerome v. Joint Registrar

1989-12-08

G.VISWANATHA.IYER

body1989
Judgment :- Petitioner is the Secretary of the Electricity Board Employees Co-operative Society (the Society). The petitioner was a member of the managing committee (committee for short) of the society which was elected on 11-10-1985. The term of the committee was three years, as the byelaw stood then. But the general body of the society had passed a resolution Ext. P1 on 28-4-1985 to extend the term of the committee to five years. It is said that an application Ext.P2 for registering the amendment of the byelaws was sent to the second respondent Assistant Registrar on 2-5-1985, but the matter has not been dealt with or orders passed so far. In the absence of any reply to Ext, P2, the committee passed resolution on 19-6-1988 proposing to hold election to elect a new managing committee on 9-9-1988 and requesting the second respondent to appoint a returning officer for the purpose of holding the election. Since the term of the managing committee was expiring on 30-6-1988, they also made a request to the Joint Registrar to extend its term till 9-9-1988. Copies of the resolution were forwarded to the second respondent along with Ext. P1 dated 28-4-1985, but instead of acceding to the request made, the first respondent Joint Registrar appointed as Administrator for the society by his proceedings Ext.P5 dated 6-7-1988. The reasons stated was that the committee was over staying beyond its term, after 30-6-1988, and therefore, a part-time Administrator had to be appointed to manage its affairs. This proceeding Ext.P5 was passed without following the procedure prescribed in S.33 of the Kerala Co-operative Societies Act, (the Act) as the first respondent felt "convinced" that it was not reasonably practicable to publish the notice contemplated in the section. Petitioner filed this original petition challenging Ext.P5, and obtained an interim order of stay of appointment of the Administrator. The order of stay has continued till this date and it is said that the elected committee continues to manage the affairs of the society. 2. There is no counter affidavit filed by any of the respondents. But, it is stated at the hearing, by the learned Government Pleader, that the second respondent has not received the application Ext.P2 for registration of the amendment to the byelaws. He also seeks to justify the appointment of the Administrator. 3. 2. There is no counter affidavit filed by any of the respondents. But, it is stated at the hearing, by the learned Government Pleader, that the second respondent has not received the application Ext.P2 for registration of the amendment to the byelaws. He also seeks to justify the appointment of the Administrator. 3. In the face of the denial of receipt of Ext.P2 by the respondents, it cannot be said that there is any failure on their part to consider the application for registration of amendment of the byelaws. The only question that therefore, arises for consideration is whether Ext.P5 is illegal for any reason. 4. The committee elected on 11-10-1985 had continued in office till 30-6-1988. There is no controversy about it. They had also passed resolution to hold election to the managing committee on 9-9-1988, with request for appointment of a returning officer and for extension of the committee's term till 19-9-1988. It was then that the Joint Registrar imposed the Administrator on the society. 5. The appointment of an Administrator is a matter of serious import for the society, and its members. Thereby the democratically elected committee is superseded and a nominee of the department assumes control and management of the society. The rights of the members to have the administration carried on by their duly elected Representatives stand suspended. The normal mode of functioning for any such society is through its elected managing committee. If this is to be given the go by, it should only be for valid grounds, and after due and strict compliance with the provisions of the statute governing the matter. S.33 justifies he appointment of an Administrator in certain circumstances. The fact that a new committee cannot be constituted before the expiry of the term of office of the existing committee is a ground for appointing an Administrator under S.33(1). The proviso to S.33(1) however enjoins that before appointing an Administrator, the Registrar shall publish a notice on the notice board of the head office of the society inviting objections to the appointment, within a time to be specified and consider the objections if any received. This pre-requisite of publication of notice could be dispensed with if the Registrar is satisfied that it is not reasonably practicable, to do so. 6. This pre-requisite of publication of notice could be dispensed with if the Registrar is satisfied that it is not reasonably practicable, to do so. 6. From the facts of this case, it is clear that there is nothing stated against the managing committee, except that they have overstayed their term. That is not by itself aground for the Registrar to be satisfied that it is not reasonably practicable to publish the notice envisaged by the proviso to sub-section (1) of S.33. The normal mode of appointment of an Administrator under S.33 is after publishing notice, and after considering the objections, if any received to the proposal. It is only in extraordinary cases that this procedure can be by-passed. The circumstances of the case should be such that it will be unwise or impracticable to leave the affairs of the society any longer in the hands of the existing managing committee, or that a stalemate has occurred in the functioning of the committee or that an urgency of such a nature exists that it is not possible to publish such notice before appointing an administrator. In the absence of any such circumstances, the Registrar is bound to follow the normal rule, publish notice and invite and consider objections before appointing an Administrator. Cases where the committee has an unblemished record and there is nothing against it except the overstayed of the term are not ipso facto ones for dispensing with the notice. The Registrar is in fact given discretion in such circumstances to act under Rule 39(2) to extent the term of the committee, implying thereby that overstayed does not by itself spell the super session of the committee or the appointment of an Administrator. No circumstances have been placed before me justifying the dispensing with the notice, except bald statements at the Bar that it was not reasonable or practicable to publish notice. The satisfaction of the Registrar has to be based on relevant materials and cogent circumstances, and not on mere whims and fancies. His action under S.33 has to be reasonable. It should be based on reasons germane to the proper and efficient administration of the society and to the grounds mentioned in sub-section (1) offs. 33. As stated earlier, respondents have not pointed out any such circumstances, and I have therefore, no hesitation in holding that the order Ext. His action under S.33 has to be reasonable. It should be based on reasons germane to the proper and efficient administration of the society and to the grounds mentioned in sub-section (1) offs. 33. As stated earlier, respondents have not pointed out any such circumstances, and I have therefore, no hesitation in holding that the order Ext. P5 is null and void, and not in accord with the first proviso to S.33. 7. Ext. P5 has therefore, to be quashed. The managing committee has continued in office by virtue of the interim order passed by this court. It is only therefore proper that it is permitted to hold the election to elect the succeeding committee. Respondents 1 and 2 are therefore, directed to ensure that the managing committee represented by the petitioner is permitted to hold elections to the new managing committee on or before 28th February 1990. Respondents 1 and 2 will ensure that the elections are so held. They will also appoint a returning officer for the purpose as and when applied for by the society. The requisite resolution for holding the elections as stated above shall be passed by the managing committee of the society on or before 31st December 1989. 8. Respondents land 2 are also directed to extend the term of the managing committee of the society in question under Rule 39(2) of the Kerala Co-operative Societies Rules till and inclusive of 28th February 1990. The original petition is allowed as stated above. There will be no order as to costs.