John v. Joint Registrar of Co-op. Societies — 1996 DIGILAW 37 (KER)

Judgment :- Sreedharan, J. When C. M. P. 847 of 1996 in W. A. 316 of 1996 came up for orders, counsel appearing on either side wanted the appeal itself heard and disposed of. Accordingly, we heard counsel at length. As agreed to by them, we are disposing of the Writ Appeal. 2. O. P. 3097/1996 was filed on 20.2.1996. One of us, J. B. Koshy, J., ordered notice by Special Messenger. On getting notice, respondents entered appearance. Learned counsel appearing on either side submitted that facts are not in dispute. The question of law that arises in the Original Petition is identical to that in W. A. 316/1996. Learned Counsel, therefore, prayed for disposal of the Original Petition along with W. A. 316/1996. Accordingly we are disposing of the Original Petition along with W. A. 316/1996. 3. Appellant in Writ Appeal and respondents 2,3 and 4 in O. P. 3097/1996 were members of the managing committee of primary co-op, societies, which were attached to the central society, namely the Kottayam Dist. Co-op. Bank Ltd. They, being members of the managing committee of the primary societies, were sent up as delegates to the general body of the Kottayam Dist. Co-op. Bank Ltd., hereinafter referred to as "the bank". As delegates of the general body of the bank, they got elected to the managing committee of the bank. Appellant become the President of the Bank. 4. Election to the managing committee of the primary societies was for a period of 3 years. The 3 year period of the managing committee of the primary societies was to expire on 8.11.1995. Government by G.O. (P) 156/95/Co-op. dated 6.11.1995, extended the term of office of the managing committee of the primary societies for a further period of 6 months. Consequently, elections to the primary societies did not take place. Thereby, appellant and respondents 2 to 4 in the Original Petition continued to be delegates in the general body of the bank. Government notification, extending the term of office of the managing committees of the primary societies, was challenged before this court in O. P. 19338 of 1995. A Division Bench of this Court, by judgment dated 20.12.1995, 1996(l) 199, KLT took the view that the Government notification extending the period cannot apply to the managing committees already in office. Government notification, extending the term of office of the managing committees of the primary societies, was challenged before this court in O. P. 19338 of 1995. A Division Bench of this Court, by judgment dated 20.12.1995, 1996(l) 199, KLT took the view that the Government notification extending the period cannot apply to the managing committees already in office. Division Bench observed: "According to us, the impugned notification has no application to a committee already constituted by the general body of a society, unless such general body wants to refix the period. The notification would apply to the general body which is yet to constitute a managing committee and in such case, general body can fix the duration of the committee upto 31/2 years." As a result of this decision, the term of office of the managing committees of the primary societies came to an end. Consequently, Administrators were appointed to the primary societies. The Administrators so appointed nominated the appellant and respondents 2 to 4 as delegates to the general body of the bank on the day on which he took charge as Administrator. Since they were thus nominated to be delegates to the bank, they contend that they can hold office to which they were elected by the then general body of the bank. In other words, appellant, who was sent up as delegate by the Administrator, wants to continue as the President of the bank. Respondents 2 to 4 want to continue as members of the managing committee of the bank. Other members of the primary societies challenged the attempt of the appellant and respondents 2 to 4 in the Original Petition to hold the office as President and members of the managing committee of the bank. Learned Single Judge allowed the Original Petition and granted all the prayers made by the petitioner in O. P. 1122/1996 holding that the appellant is not competent to continue in any office of the bank. 5. The question mat arises for consideration in these matters is whether a delegate sent to the Central Co-op. Society by the Administrator who is in charge of a primary society can hold any office in the central society if he happened to hold such office prior to the appointment of Administrator in the primary society. 6. 5. The question mat arises for consideration in these matters is whether a delegate sent to the Central Co-op. Society by the Administrator who is in charge of a primary society can hold any office in the central society if he happened to hold such office prior to the appointment of Administrator in the primary society. 6. As stated earlier, the period of the managing committee of the primary societies with which we are concerned i n these matters was to expire on 8.11.1995 and subsequent dates. That period was extended by the Government by notification dated 6.11.1995, invoking the powers under S.101 of the Go-op. Societies Act. By that notification, the term of office of the elected managing committees of the primary societies was extended for a period of 6 months.. This Court in O. P. 19338/1995 took the view that the said notification cannot extend the period of office of the managing committee of the primary societies. Consequently, the managing committees of the primary societies cease to exist. In other words, elected members of the managing committee of these societies ceased to be members of the committee of those societies. 7. While the managing committees of the primary societies were in office, appellant and respondents 2 to 4 were nominated as delegates to represent the respective primary societies in the general body of the bank. As members of the general body of the bank, they got elected to the managing committee of the bank and appellant became the President of the bank. While they were holding those offices, they ceased to be members of the managing committee of the primary societies because their term came to an end by virtue of the decision rendered by this Court in O. P. 19338/1995. R.46(f) of the Co-op. Societies Rules, hereinafter referred to as "the Rules", state that a delegate of one society sitting on the committee of another society shall cease to be a member of that committee if he ceases to be a member of the committee of the society which he represented. When the term of the managing committee of the primary societies came to an end, appellant and respondents 2 to 4 in the O. P. ceased to be members of the managing committees of primary societies. Thereby, they ceased to be members of the general body of the bank. 8. When the term of the managing committee of the primary societies came to an end, appellant and respondents 2 to 4 in the O. P. ceased to be members of the managing committees of primary societies. Thereby, they ceased to be members of the general body of the bank. 8. Arguments advanced by the appellant and respondents 2 to 4 in the Original Petition is that even though the term of the managing committee of the primary societies which they represented expired, they were sent up as delegates by the Administrators who took charge of the affairs of the societies and therefore they must be deemed to be continuing as delegates of the bank without any interruption. On this basis it is argued that whatever office they were holding in the bank must be protected and the learned Single Judge was not right in allowing the Original Petition. 9. The fact that the term of office of the managing committee of the primary societies expired by virtue of the decision of this Court in O. P. 19338/1995 is not in controversy. In such a situation, R.46 (f) must come into operation. A delegate sent by the primary society to the central society will cease to be a member of the general body of the central society by the cessation of his membership in the managing committee of the primary society (vide Gangadharan Nair v. George O. Thettayil, 1993(2) KLJ 864). One among us (Sreedharan J.) stated the law in that decision as: "Rule 44A of the Rules states that a person appointed to, represent a society in any other society and vote shall be a member of the committee of the society which he represents. It means that on] y a member of the committee of a primary society can represent it in the Central Society. The moment he ceases to be a member of the Committee of primary society, he will cease to be a delegate to the Central Society. R.46(0 of the Rules provides that a delegate of one society sitting on the committee of another society shall cease to be a member of the committee of the society which he represented. So a member of the committee of the Central Society must cease to hold that office the moment he ceases to be member of the committee of the primary society". So a member of the committee of the Central Society must cease to hold that office the moment he ceases to be member of the committee of the primary society". In view of this statement of law, we are clear in our mind that the appellant and respondents 2 to 4 in the Original Petition ceased to hold the offices held by them under the bank, the moment they ceased to be members of the managing committees of the respective primary societies which sent them as delegates to the central society. 10. Now the question that arises is what will be the consequence of these persons being sent up as delegates by the Administrators who took charge of the affairs of the primary societies. Proviso to R.44A deals with situations where Administrators who are in charge of the affairs of societies nominate any member of the society to be its delegate to any other society. Such a nominee of the Administrator, as per the said provision, shall be eligible to be elected as a member of the committee of the other society in which he sits as a delegate. This means that a person nominated by the Administrator of the primary society to be a delegate in the central society gets eligibility to be elected as a member of the committee of the central society. In other words, a person nominated by the Administrator in charge of a primary society gets no other right other than the eligibility to be elected as a member of the committee of the Central Society. In view of this provision, when the appellant and respondents 2 to 4 in the O. P. were nominated by the Administrators in charge of their respective primary societies get eligibility to be elected as members of the committee of the bank. Whatever position they held prior to the assumption of office by the Administrator will not revert back to them on such nomination. 11. As the rules now stand, only a member of a managing committee of a primary society can be a delegate to the central society. Whatever position they held prior to the assumption of office by the Administrator will not revert back to them on such nomination. 11. As the rules now stand, only a member of a managing committee of a primary society can be a delegate to the central society. The delegate so sent by the primary society if gets elected to the managing committee of that society before its term expires, that man can continue as a member of the committee of the central society if the primary society does not withdraw him or elects another delegate in his place. This right available to an elected member of the managing committee of a primary society cannot be extended to a nominee sent up as delegate by the Administrator. This we emphasise because the Administrator can nominate any member of the society. It means, the nominee of the Administrator need not be the erstwhile member of the managing committee of that society. Only if an erstwhile member of the managing committee of the primary society is nominated by the Administrator can there be the question of continuance in office arise. If the Administrator is nominating an ordinary member of the society, such a problem will not arise. In other words, if the argument advanced by the appellant and respondents 2 to 4 in the O. P. are accepted; the right of the nominee sent up as delegate by the Administrator will depend on the personnel of the nominee. Such an incongruous situation cannot arise. Such a situation cannot be deemed to be in the contemplation of the rule making authority as well. So, a nominee of an Administrator under the proviso to R.44A of (he Rules can get eligibility to be elected as a member of the central society and nothing more. Appellant and respondents 2 to 4 in the Original Petition, who were holding offices of President and members of the managing committee of the bank, ceased to hold those offices when the Administrator took charge of the affairs of the primary societies. 12. Sri. K. Balakrishnan, learned counsel representing the appellant and respondents 2 to 4, advanced an argument that petitioners in the Original Petition are not entitled to any of the reliefs asked for in these matters, since no writ under Art.226 can be issued against the Co-op. Society or the appellant and respondents 2 to 4. 12. Sri. K. Balakrishnan, learned counsel representing the appellant and respondents 2 to 4, advanced an argument that petitioners in the Original Petition are not entitled to any of the reliefs asked for in these matters, since no writ under Art.226 can be issued against the Co-op. Society or the appellant and respondents 2 to 4. This argument appears to be quite attractive. But on a closer scrutiny, we find it difficult to accept the same. It is true that this Court has taken the view that no writ will lie against a Co-op. Society. But in the instant case, eventhough the prayer is for the issuance of a writ in the nature of declaration that appellant and respondents 2 to 4 are not to hold office under the bank, the actual remedy that is sought for is in the nature of quo-warranto. They are holding public offices. Their right to hold that office is under challenge. As stated by the Supreme Court in State of Haryana v. Haryana Co-op. Transport, AIR 1977 SC 237, the mere circumstances that the petitioners did not in so many words ask for the writ of quo-warranto cannot be a justifiable reason for dismissing this original petition. Si nee they are having no right to continue in office, they must be deemed to be usurpers of the posts and this Court, according to us, can issue a writ of quo-warranto. Since the appellant and respondents 2 to 4 have not succeeded in establishing their right to hold the post, we declare that they are not to hold the offices now held by them. 13. In the judgment under appeal, namely O. P. 1122/1996, the learned Single Judge not only ordered the appellant not to function as the President of the bank, but also declared that the appellant ceased to be a member of the managing committee of the bank on 20.12.1995 by operation of R.46(f) of the Rules. Eventhough the appellant ceased to be a member of the managing committee of the bank by operation of R.46(f) of the Rules, he was nominated by the Administrator to be a delegate of the general body of the bank. That nomination is not open to challenge. We do not find any ground to interfere with the said nomination. Eventhough the appellant ceased to be a member of the managing committee of the bank by operation of R.46(f) of the Rules, he was nominated by the Administrator to be a delegate of the general body of the bank. That nomination is not open to challenge. We do not find any ground to interfere with the said nomination. So, the nomination made by the Administrators of the appellant and respondents 2 to 4 in the Original Petition as delegates to the general body of the bank will stand. But, we make it clear that they are not entitled to hold any office under the bank until they get themselves elected in accordance with the provisions of the Act and the Rules to the managing committee of the bank. In view of what has been stated above, we dispose of the writ appeal and the original petition as indicated above.