Research › Browse › Judgment

Kerala High Court · body

1994 DIGILAW 104 (KER)

Joint Registrar v. M. R. Cherian

1994-02-28

K.G.BALAKRISHNAN, MAMIDANA JAGANNADHA RAO

body1994
JUDGMENT M. Jagannadha Rao, C.J. 1. This writ appeal has been preferred by the Joint Registrar of Cooperative Societies, Idukki and the Administrator of the Thodupuzha - Muvattupuzha Primary Cooperative Agricultural Development Bank Limited (hereinafter called the Primary Back), Muvattupuzha. They were respondents 1 and 2 In the writ petition, OP 3561 of 1993 -Y dated 7-4-1993. 2. The facts of the case are as follows: The Writ Petitioner Sri M. P. Cherian respondent No. 1 in this writ appeal) was elected as a member of the Board of Directors of the Primary Bank on 29-9-1988, On the same day, the Board of Directors of the said Bank nominated, the said M. P. Cherian the delegate of the said Bank to the Kerala State Cooperative Agricultural Development Bank Limited (hereinafter called the Central Bank) While things stood thus, by virtue of the Kerala Ordinance No. 3 of 1992, the term of Cooperative Societies was reduced and because of that the term of the Board of the Primary Bank expired on 7-2-1992, Then an Administrator was appointed to administer "the Primary Bank under Sectioned 33 of the Kerala Cooperative Societies Act. 3. Now, under S.28(1A) of the Act, the Administrator can continue only upto a maximum period of one year and he has to take necessary steps to pass the appropriate resolutions for conduct of fresh elections culminating in an election notification, appointment of Returning Officer etc. 4. But, in the present case, a question of bifurcation of the Primary Bank arose in the meantime consequent to certain directions given by this Court in OP 634/89-A on 22-7-1992 within four months. The bifurcation as contemplated under S.14 of the Act and R.13 of the Rules was likely to take time. Further, new bye - laws had to be framed for the new Banks and the existing bye - law had also to be amended suitably. The Registrar of Cooperative Societies, therefore applied for extension of time before this Court and the same was granted upto 31-3-1993. But to the Civil Appeal No. 4481 of 1992 filed in the Supreme Court I.As 4 and 5 of 1992 were filed. The Registrar of Cooperative Societies, therefore applied for extension of time before this Court and the same was granted upto 31-3-1993. But to the Civil Appeal No. 4481 of 1992 filed in the Supreme Court I.As 4 and 5 of 1992 were filed. IA 4 of 1992 was filed on 18-2-1992 for further time upto 30-6-1993 'to complete the elections in Thodupuzha - Muvattupuzha PCADB' and other societies and the same was allowed by the Supreme Court on 8-2-1993 stating: "I. A. No. 4 is allowed The time for holding the election of 4 the four Primary Societies is extended upto May 31, 1993." 5. Thus, when the Supreme Court allowed the I. A. and granted time upto 31-5-1993, for conducting the election of the Primary Society or of the two societies into which it was to be bifurcated, the need arose for extending the term of the Administrator beyond 10-2-1993 6. The provisions of S.28(1A) permitted the Administrator to continue only for a maximum period of one year upto 10-2-1993 but without modifying S.28(1A) Government or Registrar could cot order extension of the term beyond the maximum period prescribed by the statute. 7. It is at that juncture that the Govt. Issued orders under S.101 of the Act in GO (P) 16/93/Coop dated 8-2-1993 in regard to this Society and two other societies. After stating that earlier the Supreme Court had directed elections to all societies to be completed by 12-2-93 and that the High Court had directed bifurcation of the societies and that the Supreme Court by orders dated 8-2-1993 had extended time for election upto 31-5-1992, the G. O stated: "Whereas the period of one year which is the maximum term fixed for the Administrators appointed under sub-s.(1A) of S.28 of the said Act to the said three societies would expire by 10th February 1993; And whereas it would not be possible to conduct the election to the committees of the above three societies before the trifurcationof the assets and liabilities or the bifurcation, as the case may, is completed." (emphasis supplied) And that, therefore, the Government, on recommendation of the Registrar, had decided to extend the term of the Administrators further 'to enable them to complete the election process within the lime limit ordered now by the Supreme Court. The Government, therefore, finally stated, exercising powers under S.101, in the G. O. above mentioned as follows: "Now, therefore, in exercise of the powers conferred by S.101 of the Kerala Cooperative Societies Act, 1969 (2) of 1969), the Government of Kerala hereby direct that sub-s.(1A) of S.28 of the said Ad shall apply to.......Thodupuzha - Muvattupuzha Primary Cooperative Agricultural Development Bank Ltd., with, the modification of substituting the words and figures 'upto 31st day of May 1993 for the words "from time to time, so, however, that the aggregate period shall not, Ss any case, exceed one year". (emphases supplied) 8. In other words, with a view to comply with the directions of this Court to bifurcate the Society and with a view to conform to the extended time limits grunted by the Supreme Court to conduct election on or before 31-5-1993, the Government exercised powers under S.101 as they felt compelled to 'amend' S.28(1A) of the Act, which fixed only a maximum period of one year for an Administrator to continue, by permitting the administrator to continue beyond one year, upto 31-5-1993. 9. It was during this interregnum of extension f the tenure of the Administrator that he withdrew the writ petitioner (Mr. Cherian) (who was a member of the unbifurcated primary society) who was earlier nominated to the Central Bank from such nomination and nominated another person Mr. Antony, This took place on 4-3-1993. If the extension of the Administrator's term upto 3-5-1993 is valid, then this Act of the Administrator is not ultra vitas. That brings us to the validity of H. O. (P) 16/93 dated 8-2-1-93 extending the term of Administrator upto 31-5-1993. 10. In this context, it is necessary to refer to S.101 of the Act which reads as follows: ''S.101: Power to exempt societies: - The Government may, if they are satisfied that it is necessary no to do in the public interests 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." 11. The constitutional validity of S.101 of the Act came up for consideration before this Court in WA 550 of 1993 in a Division Bench consisting of one of us (Jagannadha Rao, C. J.) and Sreedharan, J. It was contended that when S.101 permits the Government to grant exemptions from the provisions of the Act by directing that the provisions of the Act shall apply to such a society subject to "such modification, may be specified in the order, there was excessive delegation of legislative powers without guidelines. We rejected the said contention, relying on the judgment of the Supreme Court in Registrar, Coop Societies v. K. Kunjambu ( AIR 1980 SC 350 ) wherein similar provisions of S.60 of the Madras Cooperative Societies Act, 1932 - as applicable to Malabar area of State of Kerala - came up for consideration, Chinnappa Reddy J. observed that S.60 of Act was valid though it delegated various legislative powers to the State, After following the said ruling and upholding Section of the present Act, we stated in Para.10 of the Judgment in WA 550 of 1993 as follows: "S.101 of the Act empowers the Government to exempt any society or class of societies from any of the provisions of the Act or direct that such provision shall apply to such society subject to such modification as may be specified in the order. The modifications are to be made within the frame work of the Act. The power to modify should certainly involve a discretion to make suitable changes The modification must be confined to alteration of such a character which keeps the policy of the Act intact. The modifications must be appropriate to the particular situation in which the power is exercised. Whether such a modification is required on the particular circumstance is to be judged by the executive Government, If the modifications come within this object of the Act, they are not to be interfered with." (emphasis supplied) 12. Thus the question is whether the exercise of powers under S.101 by the Government under the G. O. (P) 16/93 dated 8-2-1993 by way of amending S.28(1A) of the Act, is within the frame "work or object of the Act and "appropriate to the particular situation'? 13. We have stated that in view of the orders of this Court in OP 634 of 1989-A dated 22-7-1992, the Primary society had to be bifurcated. 13. We have stated that in view of the orders of this Court in OP 634 of 1989-A dated 22-7-1992, the Primary society had to be bifurcated. We have also stated that by orders passed in I. A. 4 of 1992 Civil Appeal No. 4481 of 1992 on 8-2-1993, the Supreme Court granted extension of time for election upto 31-5-1993. But, if as per S.28(1A) the Administrator who was functioning after the statutory dissolution of the committees of societies by the Ordinance with effect from 7-2-1992 could be continued only for a maximum of one year, i. e., upto 10-2-1993 in this case, it well - nigh became impossible to conduct sections before 31 5-1993, without a committee in the society and without also an Administrator, there would be a vacuum. A Cooperative Society had to be managed by a democratically elected committee. Therefore, obviously, the Government had to exercise powers under S.101 and modify S.28(1A) for the purpose of making the Act workable, and for bringing into being an elected body. Unless the Administrator continued beyond 10-2-1993 and passed the required resolutions for conducting the elections by appointment of a Returning Officer who could publish the voters list and conduct the election, there was no possibility of conduct the election, there was no possibility of conduction elections. The Administrator alone could achieve these purposes and necessarily his tenure had to marginally exceed the maximum of one year, i. e. from 10-2-1993 upto 31-5-1993 and surely as the delegate of the Legislature, the Government could exercise this power by suitably amending S.28(1A) in as much as such as act would be for the purpose of making the Act effective and would meet the exigencies of the particular situation. The Supreme Court had accepted the validly of a provision like S.101 which gave power to the Government to exempt a society from operation of some provisions of the Act or apply the Act with certain modifications, (see: Registrar of Coop. Societies v. K. Kanjambu AIR 1980 SC 350 ). We accordingly hold that G.O. (P) 16/93 dated 8-2-1993 is not ultra vires of S.101 of the Act. The learned single Judge after coming to the conclusion that G.O. (P) 16/93 dated 8-2-1993 was 'legislative' in character thought that the Government, as the delegate of the Legislature, could not modify S.28(1A) even in the exigencies present. We accordingly hold that G.O. (P) 16/93 dated 8-2-1993 is not ultra vires of S.101 of the Act. The learned single Judge after coming to the conclusion that G.O. (P) 16/93 dated 8-2-1993 was 'legislative' in character thought that the Government, as the delegate of the Legislature, could not modify S.28(1A) even in the exigencies present. The learned Judge did not notice the constraints arising out of the judgment of this Court in an earlier writ petition regarding bifurcation and the judgment of the Supreme Court extending time for election upto 31-5-1993 while the term of the Administrator would expire on 10-2-1993. The delegated legislative powers, as stated in Kunjambu's case AIR 1980 SC 350 ) by the Supreme Court (regarding S.60 of the Madras Cooperative Societies Act, (1932) had to be exercised. Chinappa Reddy, J, Pointed there: "We refrain from referring to the details of the provisions except to say that they are generally designed to further the objective set out in the preamble. But numerous as the provisions are, they are not capable of meeting the extensive demands of the complex situations which may arise In the course of the working of the Act and the formation and the functioning of the societies." (emphasis supplied) Chinnappa Reddy, J. observed: "In fact the too rigorous applications of some of the provisions of the Act may itself occasionally result in frustrating the very objects of the act instead of advancing them, it is to provide for such situations the Government in invested by S.60 with a power to relax the occasional rigour of the previsions of the Act and to advance the objects of the Act, S.60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications." (emphasis supplied) Therefore, the present situation, in our view was one which clearly fell within the principles laid down by the Supreme Court and Govt. could modify S.28(1A). Hence G O (P) 16/93 dated 8-2-1993 should not have been struck down by the learned single Judge as being ultra vires merely because is has a legislative flavour. 15. If, therefore, the G. O (P) 16/93 dated 8-2-1993 is valid, then the continuance of the Administrator beyond 10-2-1993 and upto 31-3-1993 is valid. could modify S.28(1A). Hence G O (P) 16/93 dated 8-2-1993 should not have been struck down by the learned single Judge as being ultra vires merely because is has a legislative flavour. 15. If, therefore, the G. O (P) 16/93 dated 8-2-1993 is valid, then the continuance of the Administrator beyond 10-2-1993 and upto 31-3-1993 is valid. It was during that interregnum that on 4-3-1993, he withdrew the nomination of the writ petitioner, Mr. Cherian (who was a member of the Primary society) to the Central society and nominated one Mr. Antony and the said action is, therefore, not without jurisdiction. 16. In feet, now the position is that the elections to the Central society have taken place wherein the new nominee Mr. Antony participated and that election in subject matter of an election petition under S.69 of the Act and is pending. That Petition will be decided in accordance with law, subject to what we have held above. 17. Before parting with the case, we must add a word of caution, namely, that we are not to be under stood as giving a blanket power to the Government to exercise powers under S.101. Powers have to be exercised within the norms specified above. The Writ Appeal is allowed. The judgment of the learned single Judge is set aside and the writ petition is dismissed.