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1993 DIGILAW 328 (KER)

Joint Registrar v. Gopalan

1993-07-16

K.SREEDHARAN, M.JAGANNADHA RAO

body1993
Judgment :- Jagannadha Rao, C.J. These two writ appeals are connected, and can be disposed of together. 2. W.A.No.772 of 1993 is filed by the Joint Registrar of Co-operative Societies, Palakkad, and the Administrator, Alathur Co-operative Primary Agrl. Development Bank Ltd., who were respondents 1 and 2 in the writ petition, O.P.No.3578of 1993. The Writ Petition was allowed by the learned Single Judge by his judgment dated 7-4-1993. 3. W.A.No.794 of 1993 is filed by the Joint Registrar of Co-operative Societies, Kannur, who was the first respondent in O.P.No.3764 of 1993, which was allowed on 7-4-1993 by the learned Single Judge. The judgment of the learned Single Judge is a common judgment in both the O.Ps. namely, O.P.Nos. 3578 and 3764 of 1993. 4. We shall first mention the relevant facts and then point out that in view of the Ordinance issued by the Government of Kerala (Ordinance 6 of 1993), the directions given by the learned Single Judge have necessarily to be set aside and we arc obliged to pass fresh orders in these Appeals, which arc different from those passed by the learned Single Judge. 5. O.P.No'. 3578 of 1993 is filed by one C.K. Gopalan, who is a delegate from the Alathur Co-operative Primary Agricultural Development Bank Ltd., to the Kerala State Agricultural Development Bank Ltd., which is a Central Society as defined under S.2(a) of the Kerala Co-operative Societies Act. The petitioner was representing the said Primary Co-operative Society in the general body of the Central Society prior to 7-2-1992. 6. The Kerala Co-operative Societies (Amendment) Act, (Act 5 of 1992), came into force with effect from 7-2-1992. The effect of the amendment in as far as the present appeals are concerned is that the Act reduced the term of office of the elected committee to 'not more than three years'. The committees of the co-operative societies which had completed three years of their term ceased (o exist on 7-2-1992, and upon cessation. the Registrar of Co-opera live Societies acquired the authority to appoint administrator or administrators under S.28(IA) which was introduced by the said Amending Act, 5/92. The appointment of administrators under S.28(1A) was to be for a period not exceeding six months as specified in the order of the Registrar. the Registrar of Co-opera live Societies acquired the authority to appoint administrator or administrators under S.28(IA) which was introduced by the said Amending Act, 5/92. The appointment of administrators under S.28(1A) was to be for a period not exceeding six months as specified in the order of the Registrar. The Registrar is, however, empowered under the said Section, for reasons to be recorded in writing, to extend the term of the administrator 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. In other words, the statutory mandate is that the maximum period for which an administrator can be appointed by the Registrar shall not exceed one year. R.44A deals with the status of delegacies of one society in the committee of another society. This rule applies to the status of the petitioner as a delegate of the primary society in the Central Society. Under R.4.4A the person appointed to represent the primary society in the Central Society has to be a member of the committee of the primary society which he represents. A question as to what would happen when an administrator is appointed under Ss.28, 32 or 33 is laid down in the first proviso to R.44A. The said Rule was amended by the Kerala Co-operative Societies (Amendment) Rules, 1992 with effect from 7-7-1992. R.4(2) of the Amending Rules lays down that the second proviso to R.44A is to be omitted. Thus the second proviso which protected the existing delegates till the expiry of their term ceased to exist on 7-7-1992. In the present case the administrator of the primary society was appointed soon after the commencement of the Kerala Co-operative Societies (Amendment) Act, 1992 on 7-2-1992. By virtue of S.28(1A) the term of the administrator expired on 7-2-1993. The writ petitioner contended that thereafter, that is after 7-2-1993, while the administrator of the Central Society ceased to be an administrator, the administrator of the primary society which the petitioner represents, continues to hold office legally and that in exercise of assumed authority, the administrator of the primary society withdrew the petitioner's allegation to the Central Society. 7. The writ petitioner contended that thereafter, that is after 7-2-1993, while the administrator of the Central Society ceased to be an administrator, the administrator of the primary society which the petitioner represents, continues to hold office legally and that in exercise of assumed authority, the administrator of the primary society withdrew the petitioner's allegation to the Central Society. 7. In the counter affidavit filed before the learned Single Judge it was contended by the Government that in exercise of its power under S.101 of the Kerala Co-operative Societies Act, it published 3 notification G.O.(P) No.2793/-Co-op. dated 26-2-1993, staling that in exercise of the powers conferred under S.101 of the Act, the Government of Kerala directs that S.28( IA) shall apply to the primary society with the modification of subsliiulmg the words 'upto 31-3-1993' for the existing words 'from time to time so, however, that the aggregate period shall not in any case exceed one year'. 8. The question that arose before the learned Single Judge was whether the above said notification issued by the Government was within its powers under the Act. The learned Single Judge came to the conclusion that the power to extend the term of the administrators appointed under S.28(1A) is a legislative power, and therefore, the executive order issued in the form of a notification dated 26-2-1993 extending the term of the administrators beyond the term prescribed in S.28(1 a) is ultra vires. In other words, the learned Single Judge held that the term of the administrator of the primary society could not have been extended by the Government under the notification dated 26-2-1993, as the same has to be done only by the legislature. The learned Single Judge, therefore, allowed the Writ Petition, O.P.No.3578 of 1993 holding that the said notification issued by the Government on 26-2-1993 was ultra vires of S.28(1A) of the Act. The learned single judge, therefore, declared that the administrators of the primary societies represented by the petitioner also ceased to hold office upon the expiration of the period of one year fixed by the statute in S.28(1A). Therefore, he further directed that the appointment of the administrator of the primary societies had come to an end on 7-2-1993. He therefore directed the said administrators not to nominate any person as delegate of the primary society to the Central Society, namely, the Kerala State Agricultural Development Bank Ltd. 9. Therefore, he further directed that the appointment of the administrator of the primary societies had come to an end on 7-2-1993. He therefore directed the said administrators not to nominate any person as delegate of the primary society to the Central Society, namely, the Kerala State Agricultural Development Bank Ltd. 9. In W.A.No.794 of 1993 arising out of O.P.No.3764 of-1993, the tactual position is as follows. Writ petitioner one M. Kumaran is a member of theTaliparamba Primary Co-operative Agricultural Development Bank Ltd., Kannur. He was also a delegate to the Central Society, namely, the Kerala State Co-operative Agricultural Development Bank Ltd., Kannur. He was also the President of the Taliparamba Primary Society referred toabove. He also contended that the Government notification dated 26-2-1993 was ultra vires of S.28(1A) of the Act and that the administrators of the primary societies could not continue beyond 7-2-1993. The learned Single Judge, for the reasons mentioned above, allowed the Writ Petition also and gave the directions, similar to the directions issued in O.P.No.3578 of 1993. 10. It is against the common judgment of the learned Single Judge in the O.PS. that the present appeals are preferred as stated earlier by the respective Joint Registrar of Co-operative Societies. 11. During the pendency of these appeals, the Government of Kerala issued the Kerala Co-operative Societies (Amendment) Ordinance, 1993. In S.28(1A) after subsection (1A) a further sub-section (1AA) is added. It reads as follows: "(1AA) Notwithstanding anything contained in sub-section (1A) where on receipt of a report from the Registrar, the Government are satisfied that a new committee cannot be constituted or cannot enter upon office of a society before the expiry of the term of office o ('the committee, administrator or administrators, as the case may be, appointed by him under sub-section (1A) and that it is necessary in the public interest, to manage the affairs of the society and to enable a new elected committee to enter upon office, the Government may, by notification in the Gazette, for reasons to be recorded, permit the Registrar to extend the term of office of such committee, administrator or administrators for a further period not exceeding three months in the aggregate or that a new committee enters upon office, whichever is earlier." (emphasis supplied) The above said provision has been given retrospective effect from 6-2-1993 as provided in S.1(2) of the Ordinance. 12. 12. The effect of the above said Ordinance will be to empower the Government to extend the term of administrators for a period of three more months from 7-2-1993, in all one year and three months from 7-2-1992. This will take us to 7-5-1993. Therefore beyond 7-5-1993 the continuance of the administrators appointed by the Registrar of Co-operative Societies or the Government to these primary societies must be declared to be totally inoperative and invalid. 13. In that view of the matter, it becomes unnecessary for us to decide the quest ion which the learned Single Judge has decided under S.101 of the Act. S.101 of the Act reads as follows: "101. Power to exempt societies: -The Government may, if they are satisfied that it is necessary so to do in the public interest, by general or special order for reasons to be recorded, exempt any society or any class of societies from any of the provisions of this Act or direct that such provisions shall apply to such society or class of societies subject to such modifications as may be specified in the order." Before the learned Single Judge, it was contended by the Government that the section contains two parts, namely, it gives powers to the Government to exempt any society or any class of societies from any of the provisions of the Act, and the second part empowers the Government to direct that such provisions shall not apply to such society or class of societies subject to such modifications as may be specified in the order. The Government wanted to contend before the learned Single Judge that even for purposes covered by S.28(1A), whereunder the term of the administrators could not be extended beyond one year, the Government can take advantage of S.101 to extend the term of the administrators beyond one year. Learned Addl. Advocate General I, has contended before us that the learned Single Judge had addressed himself to the first part of S.101 and not to the latter part ol'S.101. 14. We are of the view that the above said question arising under S.101 need not be decided in the present case, if we go by the Ordinance, referred to above, by which the extended term under S.28(1 a) would expire on 7-5-1993. 14. We are of the view that the above said question arising under S.101 need not be decided in the present case, if we go by the Ordinance, referred to above, by which the extended term under S.28(1 a) would expire on 7-5-1993. The question as to whether the extension is, under the notification issued by the Government under S.101 of the Act, upto 7-5-1993 need not be decided by us, inasmuch as we have to give effect to S.3 of the Ordinance which has introduced S.28(1AA) into the statute. Learned Addl. Advocate General I has stated that the question of the validity of the appointment of the administrators for the period between 7-5-1993 and 31-5-1993 need not be decided by us, if we are leaving open the question which was decided by the learned Single Judge under S.101 of the Act. We propose to accede to this request and we therefore leave open the question decided by the learned Single Judge under S.101 of the Act, but at the same time we hold that the administrators' appointment to the societies will hold good only upto 7-5-1993, inasmuch as the validity of their appointment beyond 7-5-1993 and upto 31-5-1993 is not pressed by the learned Addl. Advocate General 1. 15. What we have said in regard to the continuance of the administrators in regard to the primary societies upto 7-5-1993 as per the Ordinance applies to any other appointment of administrators whether it be for the primary or any other society. 16. The learned addl. Advocate General I then sought to sustain the continuance of the administrators beyond 7-5-1993 by resort to S.33. It is therefore necessary to refer to S.33 of the Act. S.33 reads as follows: "33. Appointment of new committee or Administrator on failure to constitute committee, etc. 16. The learned addl. Advocate General I then sought to sustain the continuance of the administrators beyond 7-5-1993 by resort to S.33. It is therefore necessary to refer to S.33 of the Act. S.33 reads as follows: "33. Appointment of new committee or Administrator on failure to constitute committee, etc. (1) Where the term of office of a committee has expired and a new committee has not been constituted, or where a no confidence motion is passed by the general body against the existing committee or where the existing committee resigns enbloc or where vacancies occur in the committee either by resignation or otherwise and the number of remaining members cannot constitute the quorum for the meeting of the committee, or where the committee fails to hold its regular meeting consecutively for six months or where the Registrar is satisfied: (a) that a new committee cannot be constituted before the expiry of the term of office of the existing committee; or (b) that a- new committee is prevented from entering upon office or a new committee fails to enter upon office, on the date on which the term of office of the existing committee expires, the Registrar may, either suo motu or on the application of any member of the society after intimating the Circle Co-operative Union, 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 a new committee enters upon office, whichever is earlier. Provided that before making such order, the Registrar shall publish a notice on the not ice board of the head office of the society inviting objections to the making of the order within a period specified in the notice and consider such objections. Provided further that it shall not be necessary to publish such notice in cases where the Registrar is satisfied that it is not reasonably practicable to do so. Provided further that it shall not be necessary to publish such notice in cases where the Registrar is satisfied that it is not reasonably practicable to do so. Provided also that, where a committee, administrator or administrators, as the case may be, is in office at the commencement of the Kerala Co-operative Societies (Amendment) Act, 1992, the Registrar may extend the term of such committee, administrator or administrators, as the case may be, for a further period not exceeding one year from the date of such commencement. Explanation: -For the purpose of this sub-section a tender of resignation by a member of the committee shall have the effect of terminating his membership from the committee. (2) The committee or administrator or administrators appointed under sub-section (1) shall, subject to the control of the Registrar and to such instructions as he may from time to time give, have power to exercise all or any of the functions of the committee or of any officer of the society and take all such action as may be required in the interests of the society. (3) The committee or administrator or administrators shall arrange for the constitution of a new committee or for the entering upon office of the new committee, as the case may be." It will be noticed that S.33 has further been amended by introducing S.33(1 a) by virtue of S.4 of the Ordinance 6/93. The said amendment reads as follows: 1A. (3) The committee or administrator or administrators shall arrange for the constitution of a new committee or for the entering upon office of the new committee, as the case may be." It will be noticed that S.33 has further been amended by introducing S.33(1 a) by virtue of S.4 of the Ordinance 6/93. The said amendment reads as follows: 1A. Notwithstanding anything contained in sub-section (1), where on receipt of a report from the Registrar, the Government are satisfied that a new committee cannot be constituted or cannot enter upon office of the society before the expiry of the term of office of the committee, administrator or administrators, as the case may be, appointed by the Registrar under sub-section (1) and that it is necessary in the public interest to manage the affairs of the society and to enable a new elected committee to enter upon office the Government may, by notification in the Gazette, for reasons to be recorded, permit the Registrar to extend the term of the said committee, admin instructor or administrators, as the case may be, for a further period not exceeding one year in the aggregate or till a new committee enters upon office, whichever is earlier." On a combined reading of S.33 and S.33(1 a) it will be noticed that under S.33 the total period of extension permissible will come to two years, one year under S.33 and one more year under S.33(1 a). This according to the learned addl. Advocate General will be in addition to the period permitted under S.28(1A), as amended by S.28(1AA). 17. That would mean that as a result of Ss.28(lA), 28(1AA), 33(1) and 33(1 a), it will be possible for the Government or the Registrar, as the case may be, to appoint administrators for a total period of three years and three months if we are to construe that the power under Ss.33 and 33(1 a) could be exercised even in cases which fall under-the special provision in S.28(1A). 18. The question for consideration then would be whether the power under S. 33(1) and 33(1 a) could be exercised in cases which specifically come under S.28(1 a). It will be noticed that the power to appoint administrators under S.28(1A) is traceable to the Kerala Co-operative Societies (Amendment) Act, 1992 under which the term of the societies was reduced from five years to three years. It will be noticed that the power to appoint administrators under S.28(1A) is traceable to the Kerala Co-operative Societies (Amendment) Act, 1992 under which the term of the societies was reduced from five years to three years. The said reduction provision in S.28 was followed by the provision in S.28(1A) by which administrators could be appointed for the period before a new committee could be elected. In other words, the administrators under S.28(1A) were a special category of administrators who come into being on reduction of the five year period to three year period as provided by the Kerala Cooperative Societies (Amendment) Act, 1992, amending S.28 of the Act. In our view, the administrators who belong to such a special category were entitled to continue only for a maximum period of one year initially and for a further period of three months as per S.28(1AA) introduced by Ordinance 6 of 1993. It is not permissible to allow the said appointment of administrators under S.28(1 a) and S.28(1AA) to continue for further periods in exercise of the powers under S.33(1) and S.33(1 a). S.33 is intended to cover different situations as stated in S.33(1). 19. Further, if the contention of the Government is to be accepted, the position would be very anomalous. Under the amendment of 1992 the normal term of an elected committee would be three years, whereas by a combined operation of Ss.28(lA), 28(1 aa ), 33(1) and 33(1 a) the Government could in certain situations where there was no elected committee, allow the administrators to run the societies for a period of three years and three months. Such a situation could not obviously have been intended by the legislature. Therefore we are of the view that continuance of the administrators in the present cases cannot be sustained by resorting to Ss.33(1) and 33(1A). 20. For the aforesaid reasons, while leaving open the question decided by the learned Single Judge under S.101, we are of the view that the continuance of the administrators in the present cases beyond 7-5-1993 is wholly illegal and inoperative. 21. Then the question arises as to whether the vaccum could be allowed to continue in these three societies, namely, the Alathur Co-operative Primary Agrl. Development Bank Ltd., Palakkad Co-operative Primary Agrl. Development Bank Ltd., and the Thaliparambu Primary Co-operative Agrl. 21. Then the question arises as to whether the vaccum could be allowed to continue in these three societies, namely, the Alathur Co-operative Primary Agrl. Development Bank Ltd., Palakkad Co-operative Primary Agrl. Development Bank Ltd., and the Thaliparambu Primary Co-operative Agrl. Development Bank Ltd. Here the position is that there is no elected body and the administrators appointed under S.28(1A) would cease with effect from7-5-1993. Now the elections are to be conducted to these three societies, and there are directions of the Supreme Court that elections must be conducted expeditiously. U is stated before us by the learned Addl. Advocate General I that in view of the peculiar circumstances of the case, the Government is moving the Supreme Court for extension of time also. 22. Inasmuch as there is a vaccum in these three societies, there being no elected body, and there is no possibility of any administrator continuing beyond 7-5-1993, we have no choice but to appoint certain persons as officers of Court for taking over the management of the three societies administering them and also for taking steps for conducting elections to the respective managing committees. 23. We have therefore suggested that the learned Addl. Advocate General should furnish a list of names of various officers belonging to the co-operative department for appointment as administrators to the societies under orders of this Court. They have to function as officers of this Court rather than as officers appointed under any provision of the Act or the Registrar or the Government. 24. The learned Addl. Advocate General I has therefore submitted a list of officers for being appointed as administrators in respect of three primary societies. For each of the society he has given three names. Learned counsel for the respondent writ petitioner took time to consult his clients and agreed for one name for each of the three names for each society furnished by the Addl. Advocate General I. 25. So far as the Thaliparambu Primary Co-operative Agrl. Development Bank Ltd. is concerned, we hereby appoint Sri.K.V. Rajan, Assistant Registrar (Administration), Joint Registrar's Office, Cannore as Administrator of the Thaliparamba Primary Co-operative Agrl. Development Bank Ltd., and he shall take over the administration of the said society and exercise all functions under the Act and the Rules. He shall also take steps to have a new managing committee constituted for the said society in accordance with law. 26. Development Bank Ltd., and he shall take over the administration of the said society and exercise all functions under the Act and the Rules. He shall also take steps to have a new managing committee constituted for the said society in accordance with law. 26. We also appoint Sri.M. Pazhanan, Assistant Registrar (General), Palakkad, as Administrator of the Palakkad Co-operative Primary Agrl. Development Bank Ltd. and he shall take over the administration of the said society and exercise all functions under the Act and the Rules. He shall also take steps to have a new managing committee constituted for the said society in accordance with law. 27. We also appoint Sri.D.K. Ramavarman, Assistant registrar/valuation Officer, Alathur Co-operative Primary Agrl. Development Bank Ltd. as administrator of the Alathur Co-operative Primary Agrl. Development Bank ltd. and he shall take over the administration of the said society and exercise all functions under the Act and the Rules. He shall also take steps to have a new managing committee constituted for the said society in accordance with law. 28. The two administrators above appointed in respect of Alathur Co-operative Primary Agrl. Development Bank Ltd., and Palakkad Co-operative Primary Agrl. Development Bank Ltd. shall take urgent steps to have the trifurcation of the respective societies. 29. These Administrators will be accountable to this Court for their omissions and commissions as Administrators of this Court. If any member of the respective societies is aggrieved by any act or omission of the administrator it will be open to him to approach this court for appropriate orders. If the three Administrators have any difficulty in complying with the directions of this Court, it shall be open to them. to approach this Court for appropriate orders in these very Writ Appeals. The judgment of the learned Single Judge in each of the two O.Ps. is set aside and the Writ Appeals are disposed of as stated above.