Bappu Haji v. Joint Registrar — 1992 DIGILAW 318 (KER)

Judgment :- Jagannadha Rao, CJ. The appellant before us, Sri. AP Bappu Haji, has filed this appeal with leave, as he was not impleaded as a party in the writ petition. The writ petitioner, which is the Board of Directors of the Co-operative Bank in question, now figures as the first respondent in this appeal. 2. The point arising in this appeal touches upon certain aspects which have come up before a Division Bench of this Court in OP 1812 of 1992 (All Hassan v. State of Kerala and others) and batch dated 8-4-1992. The interpretation of S.28(1A) of the Kerala Cooperative Societies Act, 1969 (hereinafter referred to as 'the act) as introduced by Kerala Act 5 of 1992 and R.39 of the Rules also falls for consideration. 3. The facts of the case are as follows: The writ petition was filed by the President of the Board of Directors of the Co-operative Bank (hereinafter referred to as 'the Committee') which is a Society registered under the Co-operative Societies Act. As per Clause 33(c) of the bye-laws, the term of the Committee was to be five years from the date of election The present Committee is elected to office in the election held on 22-10-1989. Due to a stay order in regarding to the counting of votes granted by this Court in a Miscellaneous Petition in OP 8488 of 1989, the counting was held only on 24-2-1990 and the Board took charge on 26-2-1990. By operation of the Kerala Co-operative Societies Amendment Act of 1992 referred to above, the term of the Committee has been reduced to three years. It is stated, even in paragraph 2 of the memorandum of writ petition filed by the first respondent before us, that as per the amended Act, the Committee could continue in Office only till 30-6-1992. The Act contemplates every Society to take certain steps in regard to the election of the next Committee or the Board, as the case may be, so that there will be continuity in the functioning of the Co-operative Society. The Act contemplates every Society to take certain steps in regard to the election of the next Committee or the Board, as the case may be, so that there will be continuity in the functioning of the Co-operative Society. In other words, the Act contemplates election of a new Committee or Board by an existing Society well before the expiry of its term, R.35(1) of the Rules provides that the Committee in office shall meet at least 60 days in advance of the date of expiration of its term and pass a resolution fixing the date, time and place fqr conduct of election for the new committee. Bye-law clause 35(a) of the Bye-laws of the Bank in question also permits conduct of elections sufficiently early so as to eriable the newly elected Committee to succeed in office on the expiry of the term of the existing committee. Therefore, the Committee in question in its meeting held on 20-3-1992 resolved to conduct election to the Managing Committee of the Society on 31-5-1992 in the general body meeting scheduled between 8 to 17 hours and the venue of election was also fixed. The said resolution is marked as Ext.P1. As prescribed by R.35(1), there is no dispute that the said resolution was forwarded to the second respondent in the writ petition, namely, the Assistant Registrar of Co-operative Societies (General), Manjeri Malappuram who is the authority to appoint the returning officer. A formal request was also made in the said resolution for appointment of a returning officer for conducting the election The request a1ongwith copy of the resolution was forwarded by registered post with Acknowledgment due and the same was received by the Assistant Registrar of Cooperative Societies on 26-3-1992. The postal acknowledgment is marked as Ext.P2. It is said that there are 8,000 members in the Society and the voters list has also to be prepared for the purpose of election. The grievance of the writ petitioner-Board was that the Assistant Registrar of Co-operative Societies, inspite of the receipt of Ext.P1 resolution and the request of the Committee to appoint a returning officer, was not doing so and his inaction was highly suspicious in view of other influences that might be working on. The grievance of the writ petitioner-Board was that the Assistant Registrar of Co-operative Societies, inspite of the receipt of Ext.P1 resolution and the request of the Committee to appoint a returning officer, was not doing so and his inaction was highly suspicious in view of other influences that might be working on. The Board there fore, filed the writ petition for the issue of a writ of mandamus directing the second respondent in the writ petition to appoint a returning officer for conduct of election to the managing committee of the Bank on 31-5-1992. A further direction was sought to permit the existing committee to continue in office till the fresh election. The writ petition was filed on 27-4-1992. 4. The writ petition was disposed of on 10-6-1992 after hearing the Government Pleader. The learned single judge after mentioning the above facts, noticed a subsequent event, namely, that a fresh resolution was again passed by the Board on 3-6-1992 fixing the date of election on 19-7-1992 and a copy of the said resolution was also forwarded to the Joint Registrar of the Co-operative Societies (first respondent in the writ petition). The learned judge, therefore, passed the following order: "Second respondent is, therefore, directed to appoint a Returning Officer without any delay and on such appointment, the Returning Officer shall proceed to conduct the election in accordance with the procedure contemplated under R.35 of the Co-operative Societies Act. The present Managing Committee is permitted to continue in office till election is held and new Board of directors assumes charge. O.P- is allowed." 5. The appellant in this appeal is aggrieved by the direction of the learned single judge permitting the existing managing committee to continue in office till the new election is held. According to the appellant, after the amendment of 1992 and the introduction of S.28(1A), the existing committee would automatically cease on 30-6-1992 on the expiry of its term and that thereafter the Registrar -has necessarily to appoint an administrator or a committee, as stated in S.28(1A) of the Act and there is no other choice. He also contends that even assuming that the term of the existing managing committee is to be extended, such powers being vested under R39(2) of the Rules only in the Registrar, the learned judge should have issued directions to the Registrar to consider the said question rather than himself extending the term. He also contends that even assuming that the term of the existing managing committee is to be extended, such powers being vested under R39(2) of the Rules only in the Registrar, the learned judge should have issued directions to the Registrar to consider the said question rather than himself extending the term. It is contended that since the power to permit continuance of the existing commit tee is vested only in the Registrar, it is not for the Court to exercise the said power. 6. At the outset it is necessary to refer to the provisions of S.28 as amended by Act 5/92, in so far as they are relevant. They read as follows: "28. Appointment RI Committee.--(1) The general body of a society shall constitute a committee, for a period not exceeding three years, in accordance with the bye-laws and entrust the management of the affairs of the society to such committee, Provided Provided also that the committee of a society already constituted and in existence at the commencement of the Kerala Co-operative Societies (Amendment) Act, 1992, shall - (a) if that Committee has completed three years or more, cease to be in existence at such commencement, and (b) If that committee has not completed three years or the term as provided in the bye-laws, cease to be in existence on the expiry of three years or the term as provided in the bye-laws, whichever is earlier: 7. Clause (1A) introduced by the Act 5/92 reads as follows: (1A) Where the committee of a society has ceased to be inexistence as provided hi the third proviso to sub-section (1), the 'Registrar shall appoint (i) a new committee consisting of not more than three members of the society; or (ii) one or more administrator or administrators, who need not be a member or members of the society, to manage the affairs of the society for a period not exceeding six months as may be specified in the order, which period may, at the discretion of the Registrar and for reasons to be recorded in writing, be extended from time to time, so, however, that the aggregate period shall not, in any case, exceed one year or till the new committee enters upon, office, whichever is earlier," 8. Rule 39(2) deals with extension of the term of a committee by the Registrar. We shall refer to R.39 in its entirety: "39. Rule 39(2) deals with extension of the term of a committee by the Registrar. We shall refer to R.39 in its entirety: "39. Election and term of the members of Committee:-(1) The bye-laws of every society shall provide that the term of its committee shall expire on the same date as may be specified. All the members of the committee (including those election in casual vacancies) whether representing societies or individuals shall vacate their office on the date specified irrespective of the date on which they were elected as members of the committee. If no such date is specified in the byelaws the date of expiry shall be 30th June of that year in which the term expires. Explanation-For the purpose of calculating the term of a committee, an year shall be taken to be the period commencing on the first day of July of the year and ending with 30th June of the succeeding year. Each year of the term shall be calculated so as to end on 30th June of year, irrespective of the date of election or taking charge of the Committee earlier in the year. (2) The election of all the members of the committee referred to in sub-rule (1) shall be held on or before the expiry of the term of office of the committee members. If, for any reason, election is not held the Registrar may extend the term until such time within which the election should, in his opinion, be held." It will be noticed that after the introduction of the third proviso to S.28(1)by Act 5/92 with effect from 7-2-1992, the existing committees which had a five year tenure, have the tenure reduced to three years. Upon such reduction, they fail into tt categories: (1) where the three ydar period has already expired by 7-2-1992, (2) whether three year committee has not expired or the term as provided in the bye-laws whichever is earlier. So far as the committees falling in the first category are concerned, it is obviq that a new committee has to be elected in accordance with the provisions of R.35 which we shall refer to presently. So far as the committees falling in the 2nd category is concerned, the term of those committees is to expire after 7-2-1992 and the question election of a new committee would arise only on a date subsequent to 7-2-1992. 9. So far as the committees falling in the 2nd category is concerned, the term of those committees is to expire after 7-2-1992 and the question election of a new committee would arise only on a date subsequent to 7-2-1992. 9. Before a new election is held, an existing committee has to take certain state as provided in R35 of the Rules, such as passing of a resolution for the said purpose a sending it by registered post to the competent authority and the latter has then to appo a Returning Of Hcer who is to prepare and publish the voters list and conduct the election Sub-clauses (1) and (2) of Rule 35 read as follows: "35. Procedure regarding conduct of Election to the Committee of Societies.-", election of the members of the committee of a Society shall be conducted in the following (1) The Committee shall meet at least 60 days in advance of the date of expiration of itsti and pass a resolution fixing the date, time and place for the conduct of the election of the committee. A copy of the resolution shall be sent to the Registrar by registered post within a to (2) The Registrar may on receipt of such resolution appoint a Returning Officer in conduct of election. The Returning Officer so appointed may be given such necessary step the conduct of election and the committee shall render all necessary help to the Returning Officer for the constitution of the Committee. Explanation.-For the purpose of sub-rules (1) and (2) the expression 'Registrar' means, (a) it case of Societies having State-wide jurisdiction, the Registrar of Co-operative Societies; (b) in case of Societies the jurisdiction of which is confined to one district and in the case of Prin Societies, the jurisdiction of which exceeds one circle, the Joint Registrar of the District concern and (c) in the case of Primary Societies the jurisdiction of which does not exceed one circle Assistant Registrar of the Circle concerned." 10. After the Ordinance which was replaced by Act 5/92, several questions t arisen. There have been cases where even before 7-2-1992, certain Societies have pas resolutions (for conduct of elections to a new committee. ll. We are here specifically not dealing with cases of committees which because of the reduction of term from 5 years to 3 years - could not pass resolutions bd 7-2-1992,60 days before 7-2-1992. 12. There have been cases where even before 7-2-1992, certain Societies have pas resolutions (for conduct of elections to a new committee. ll. We are here specifically not dealing with cases of committees which because of the reduction of term from 5 years to 3 years - could not pass resolutions bd 7-2-1992,60 days before 7-2-1992. 12. There have also been cases where a committee whose term is to expires 7-2-1992, as stated above, has passed resolution before such expiry for conduct elections. If the said resolution had been passed 60 days in advance of the expiry of the term and a copy thereof had been sent to the Registrar by registered post will week, as stated in R.35(1), it is possible to presume that the committee in office has 6 all that is required of it, for the conduct of an election to the new committee. They before us falls in this category and the grievance is that even though the committee done all that it snuula nave done, the Registrar is deliberately not appointing a Returning Officer under R.35(2) but is intent upon appointing a three member committee or an administrator under S.28(1A) and is waiting for the expiry of the term of the committee. It is pointed out. that while the term of the committee was to expire on 30-6-1992 (i.e. after 7-2-1992), a resolution had been passed on 20-3-1992, sixty days in advance, and the same was sent to the Registrar who received it on 26-3-1992 and inspite of it, the Registrar has not appointed a Returning Officer under R.35(2) even by 27-4-1992 when the Writ Petition was filed. The Writ petitioners suggest that the intention of the Registrar is to postpone the matter beyond 30-6-1992 with a view to exercise power under S.28(1 a) for appointing a three member committee or an administrator /administrators. In fact, by the time the writ petition was heard, i.e., 10-6-1992, hardly 20 days were left for the appointment of a Returning Officer and for election and the learned judge therefore felt that the term of the committee is to be extended till such time as a Returning Officer is appointed. In fact, by the time the writ petition was heard, i.e., 10-6-1992, hardly 20 days were left for the appointment of a Returning Officer and for election and the learned judge therefore felt that the term of the committee is to be extended till such time as a Returning Officer is appointed. But the appellant, contends that under S.28(1A) an administrator must have been allowed to be appointed by the Registrar and that, even assuming that, alternatively the term of the existing committee could have been extended, that power cannot be exercised by the Court but should have been allowed to be exercised only by the Registrar under R.39(2). 13.Before we go into the above aspects, we must refer to another contention raised by the respondents-writ petitioners relying on the judgment of a Division Bench of this Court in O.P.No.1812/92 and batch dated 8-4-1992 decided by Varghese Kalliath, & Guttal, JJ. The judgment deals with the validity of certain provisions of the Ordinance which was replaced by Act 5/92, and in particular, with the reduction of the term of the existing committees from 5 years to 3 years. In that case, a contention was raised for the writ petitioners that the power of appointment of administrators may be resorted to unjustifiably. The Division Bench clarified (para.1ll) that if the term of three years of a committee had not expired by 7-2-1992, and the term was in the normal course to expire on a future date, there is absolutely no necessity for appointing administratorI administrators or a new three member committee under S.28(1A). This is in fact clear because S.28(1A) itself does not contemplate any such appointment unless the three year period has expired after 7-2-1992. This is also clarified by the clarificatory memo filed by the Addl. Advocate General before the said Division Bench. It reads as follows: 1. This is in fact clear because S.28(1A) itself does not contemplate any such appointment unless the three year period has expired after 7-2-1992. This is also clarified by the clarificatory memo filed by the Addl. Advocate General before the said Division Bench. It reads as follows: 1. Sub-section (lA) inserted by S.3(2) of the Ordinance may be read and understood to mean that where the committee hasIriot completed three years or the term as provided in the bye-laws at the commencement of the Ordinance and its term will expire only on a future date, a new committee or administrator contemplated in sub-section (1A) will not be appointed unless the existing committee fails to conduct election to the new committee in accordance with the provisions of the Act, the Rules and the Bye-laws before the expiry of three years or the expiry of the term as provided in the bye-laws, whichever is earlier. But if the committee has competed three years or more at the commencement of the Ordinance, the commit tee shall cease to be in existence at the commencement of the Ordinance and the Registrar shall appoint a new committee or administrator as contemplated in sub-section (1A)." 14. In our view, the learned judges were conscious that S.28 (lA) does not make any provision for appointment of an administrator or three-member committee before the expiry of the three-year or other terms in the bye-law (whichever was earlier), such term expiring on a day after 7-2-1992. The clarification was not also, we are clear, intended to mean that if the committee tails to conduct election', an administrator could be appointed under S.28(1A) even before the expiry of the three years term or other term in the bye-law, as stated above, such expiry taking place after 7-2-1992. The expression 'fails to conduct election' has been further clarified for the Government before us as meaning cases where the committee has not passed the requisite vale resolution as provided in R.35(1) and communicated the same as specified therein. The expression 'fails to conduct election' has been further clarified for the Government before us as meaning cases where the committee has not passed the requisite vale resolution as provided in R.35(1) and communicated the same as specified therein. other words, the clarification and the observations means that if the existing society hi passed a valid resolution before 60 days of the expiry of the term as contemplated t R.35(1) for conduct of next election and has also sent the same to the Registrar I registered post in a week as stated therein, the power of appointment of three member committee or an administrator under S.28(1A) shall not be resorted to. Such a pom could be resorted to where the existing committee has not complied with R.35(1)i stated above. We might again state that we are not here dealing with committees which, because off reduction of the five year term to three years, could not comply with R.35(1) proceed of passing a resolution etc. 15. We next come to the power of extension of the term of the committee un 1 R.39(2) of the Rules. As stated above, incases where the Act 5/92 which came into fd on 7-2-1992 permitted the committees to function beyond 7-2-1992 till the expiry three years or other term provided by the bye-laws (whichever was earlier), and I existing committees had done all that was expected of it by passing a resolution un 1 R.35(1) and sending the same by registered post in a week to the Registrar, the Register cannot - in case no returning officer is appointed and election conducted before the proceed to exercise powers under S.28(1A) for appointment of a three inert committee/ administrator. In fact, in such cases, we are of the view "that, he ought, be) the expiry of the term, to exercise his powers under R.19(2) for extending the term of committee which had not been in default. 16. On the facts of the present case, the position is that- and it is not in dispute- the existing society had passed a resolution as contemplated by R.35(1). However stated in the memorandum of grounds of appeal, there were several disputes t whether the membership of a few thousands of members was valid or not. The dispute was pending before the Arbitrator and is, in fact, still pending. However stated in the memorandum of grounds of appeal, there were several disputes t whether the membership of a few thousands of members was valid or not. The dispute was pending before the Arbitrator and is, in fact, still pending. The appellant interested in the said question being thrashed out before the fresh election is held to committee while the respondents-writ petitioners were interested in having the election first. It is, however, not in dispute before us that in OP No. 8488 of, 1989 there direction dated 2-2-1990 for the Arbitrator to dispose of the matter relating to vai of membership and also that in OPNo.8250 of 1992 there is a direction dated 26-6-i that the elections shall not be conducted before the arbitration case is decided. This] direction was issued in OP No. 8250 of 1992 on 26-6-1992 subsequent to the impugned judgment dated 10-6-1992 now in appeal before us. 17. It is true that, as on 10-6-1992, the Registrar had not appointed a Returning Officer even though R.35(1) was complied with by the existing committee before of its term on 30-6-1992. If this court apprehended that the Registrar ought to cou extension of the term of the committee, this Court could have asked the Registrar so, in the light of the clarificatory memo filed in OP.No.1812 of 1992 and batch dated 8-4-1992. Whenever a particular authority under the Act or Rules, vested with a power is not exercising a power, this Court would direct that authority to perform its duty under R.39(2). 18. The question is whether we should now set aside the order of the learned judge extending the term of the committee beyond 30-6-1992? If we were disposing of this appeal well before 30-6-1992, we could have issued directions to the Registrar to exercise powers under R.39(2). The Registrar has power to extend the term only during the existence of the committee and not after its term has expired. But now, in this case the term has expired on 30-6-1992. As it is now too late to direct the Registrar to exercise powers under R.39(2) and, in fact, he cannot even if he wants to, we do not propose to interfere with the order of the learned single judge extending the term of the committee till fresh elections are held. For the aforesaid reasons, this writ appeal is dismissed. No costs.