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1999 DIGILAW 514 (KER)

Velliankeri v. General Manager

1999-10-22

G.SASIDHARAN

body1999
Judgment :- Arijit Pasayat, C.J. Petitioner is a member of the Director Board of the 2nd respondent Society. An administrator was appointed in the above society on superseding the Director Board. O.P. No. 15060 of 1999 was filed challenging the super session of the Director Board and this Court set aside the order of the first respondent and directed to conduct election to the Board of Directors. As directed by this Court, election to the Board of Directors was conducted. But on entertaining an election petition, the first respondent directed that the Board of Directors should not take charge. Against the above order of the first respondent, O.P. Nos. 5259 & 1961 of 1999 were filed and as directed by this Court charge was handed over to the elected Board of Directors. Then the 3rd respondent was elected as the President of the Society. The petitioner would allege that now the meeting of the Board of Directors are not being regularly held by assigning one reason or the other. There is averment in the petition that for the last one month, no meeting of the Board of Directors is being held. 2. The petitioner would allege that attempts are being made to register another Cooperative Society in the area of operation of Thiruvilwamala Handloom Weavers Cooperative Society Limited. All the elected Directors except the President moved a no confidence motion against the President. Ext. P1 is the no confidence motion signed by six of the Directors. Since no action was taken, Ext. P3 reminder dated 20.7.1999 was given by six Directors. The Directors also gave a letter to the first respondent requesting to convene a Board meeting to discuss the no confidence motion. Ext. P5 is copy of the letter given by the Directors to the first respondent, the Registrar of Co-operative Societies. This O. P Js filed to direct respondents 1 to 3 to convene a meeting of the Board of Directors to discuss Ext. P1 resolution. The third respondent would raise the contention that the Co-operative Societies Act does not provide for moving a no confidence motion against the office bearers by the members of a committee. According to the third respondent, what is provided in S.33(1) of the Co-operative Societies Act is the passing of a no confidence motion by the general body against the committee as a whole. According to the third respondent, what is provided in S.33(1) of the Co-operative Societies Act is the passing of a no confidence motion by the general body against the committee as a whole. The third respondent would also contend that in the absence of a statutory duty on the part of respondents to convene a meeting of the Board of Directors to discuss Ext. P1 resolution, jurisdiction of this Court under Art.226 of the Constitution cannot be invoked. 3. The learned counsel appearing for the petitioner relies on S.30(4) of the Cooperative Societies Act for arguing that the Registrar or any person authorised by him may at any time summon a meeting of the committee of the society and that meeting shall be deemed to a meeting called in accordance with the bye-laws of the society and shall have power to transact all business which can be transacted at a meeting of the committee under the bye-laws of the society. S.31(3) of the Act says that a person nominated to the committee of an apex or a central society under sub-s.(1) shall not take part in the discussior of any no confidence motion or vote on any such motion. The argument advanced by the learned counsel appearing for the petitioner on pointing out the above provision is that the legislative intend is not to allow moving of a no confidence motion against the President of a society which can be discussed in a meeting of the Board of Directors. The provision in S.31(3) restraining the nominated members of the committee from taking part in the discussion of any no confidence motion and also voting on any such motion would indicate that the legislature did not have the intention in enacting the law that there should not be a no confidence motion moved against the President. 4. The provision in S.31(3) restraining the nominated members of the committee from taking part in the discussion of any no confidence motion and also voting on any such motion would indicate that the legislature did not have the intention in enacting the law that there should not be a no confidence motion moved against the President. 4. In Narayanan Nair v. Joint Registrar (1982 KLT 602), this Court considered the question whether the President of a Co-operative Society can be removed from office by a no confidence motion and held that the framers of the Act and the Rules had in mind the situation when a no confidence motion would be discussed and put to vote in having a provision in the nature of what is contained in sub-s.(3) of S.31 of the Co-operative Societies Act It was further held that applying the principles of section 16 of the General Clauses Act, it could be construed that the authority which appoints the President shall have the power to remove him from that office. 5. In Gregory v. Secretary, Manimala S. C. Bank Ltd. (1990(1) KLT 374), the very same question arose for consideration of this Court again and it was held that if the managing committee could elect a President, that committee must have the power to undo their action by cancelling the appointment in appropriate proceedings. In that decision also, S.16 of the General Clauses Act was relied on for coming to the conclusion that the managing committee could elect a President and cancel the appointment in appropriate proceedings. 6. The submission for an on behalf of the 3rd respondent is that the provision in the Co-operative Societies Act regarding no confidence motion as is envisaged in S.33 of the Act mentions only about the no confidence motion passed by general body against the existing committee. S.33 of the Act deals with appointment of a new committee or an administrator on failure to constitute a committee. S.33 of the Act deals with appointment of a new committee or an administrator on failure to constitute a committee. What is said in the above provision is that 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 either by resignation or otherwise and the number of remaining members cannot constitute the quorum for meeting of the committee or where the committee fails to hold its regular meeting consecutive for six months, the Registrar can appoint a new committee or one or more administrators for the society. The above provision would say that in an instance where a situation arises in which no confidence motion is passed by the general body against the existing committee the Registrar may invoke the powers under S.3 3 for appointment of a new committee or administrator for the society. That provision cannot be considered as one which provides that there can be a no confidence motion only by the general body against the existing committee. That is all the more clear from the fact that S.31(3) provides that a person nominated to the committee shall not take part in the discussion of any no confidence motion or vote on any such motion. So, there is no merit in the contention that the Co-operative Societies Act provides only for a no confidence motion being passed by the general body against the existing committee. 7. In Narayanan Nair's case (1982 KLT 602) reference is made to a decision in Veeramachaneni Venkata Narayana v. The Dy. Registrar of Co-operative Society (ILR 1975 Andhra 242) where it was held that there was no implied power in the committee members to express want of confidence in the President or any office bearer and replace him. In the decision of this Court in Narayanan Nair's case (1982 KLT 602) it was observed that though Rule 43 provides for the election of the President, it is silent about the removal of the President and by applying the principles of S.16 of the General Clauses Act, it could be construed that the authority which appoints the President shall have the power to remove him from office. In the above case, reference is made to the decision in N. Venkataratnamv. District Collector (MR 1972 A.P. 349) in which it was held that considering the democratic and the co-operative principles underlying the co-operative law, it cannot be said that the absence of a specific provision debars the committee of management from changing its office-bearers in whom they have no confidence. 8. The learned counsel appearing for the third respondent placed reliance on some of the decisions which said that in the absence of any Rule or Law, the managing committee has no such inherent or implied power to pass no confidence motion against the President or office-bearers. The learned counsel pointed out the decisions in Hindurao v. Krishnarao (AIR 1982 Bombay 216) and Jagdev Singh v. Registrar, Cooperative Societies, Haryana (AIR 1991P & H 149) in which it was observed that no confidence motion against the President or Board of Directors is not permissible in the absence of any provision in the Act or Rules. In Jagdev Singh's case (AIR 1991 P & H 149) reference is made to the decision in Veeramachaneni Venkata Naryana's case (ILR 1975 Andhra 242). 9. S.31(3) of the Kerala Co-operative Societies Act says that nominated members of an apex or a central society shall not take part in the discussion of any no confidence motion or vote on any such motion. Apex society and central society are mentioned in sub-section (3) of S.31 of the Act and no mention is made about a primary society. Learned counsel appearing for the 3rd respondent would contend that the above provision can only be understood to mean that there can be a no confidence motion in the committee of an apex or central society and on the basis of the above provision it cannot be said that there can be a no confidence motion which could be moved in the committee of a primary society. There is one reason for not mentioning about a primary society in S.31(3) of the Act. There is one reason for not mentioning about a primary society in S.31(3) of the Act. In the Act there is no provision which provides that a person nominated can be one of the members of the committee of a primary society and because of that there is no need to make a provision in the Act which would say that a person nominated to the committee of a primary society shall not take part in the discussion of any no confidence motion or vote on any such motion. The fact that it is provided in S.31(3) of the Act that a person nominated to the committee of an apex or central society shall not take part in the discussion of any no confidence motion or vote on any such motion itself would indicate that the intention of the legislature is that there can be no confidence motion which could be moved in the committee of an apex or central society. A reading of the provisions of the Act will not disclose any intention of the legislature not to move a no confidence motion in the committee of a primary society. As can be seen from the various provisions in the Act the legislature never intended that there should not be any no confidence motion in the committee of a primary society. On the other hand, the intention of the legislature is that there can be no confidence motion in the committee of an apex or central society or a primary society. So even without taking recourse to S.16 of the General Clauses Act, it can be concluded that there can be a no confidence motion which could be discussed in the committee of a primary society. 10. The learned Government pleader on instructions which submit that the President of the Society could not call the meeting of the committee since the records and registers including the minutes book were handed over to Vigilance Police in connection with an enquiry regarding mis-appropriation of money. We would also submit that Ext. P5 letter of the committee members dated 26.7.1999 was received in the office on 28.7.1999 and the General Manager had sent a letter to the President on 5.8.1999 directing him to convene a committee meeting for discussing the no confidence motion. We would also submit that Ext. P5 letter of the committee members dated 26.7.1999 was received in the office on 28.7.1999 and the General Manager had sent a letter to the President on 5.8.1999 directing him to convene a committee meeting for discussing the no confidence motion. Even though such a direction was given by the first respondent, it appears that the meeting of the Board of Directors has not been convened so far. That being the position, there is need to give direction to the respondents to convene a meeting of the Board of Directors to discuss Ext. P1 resolution. The Original Petition is allowed directing the respondents to convene a meeting of the Board of Directors and to discuss Ext. P1 resolution.