IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WP(C).No. 4910 of 2010(K) -------------------------------------- PETITIONER(S): ------------------------ 1. G.SUGUNAN, MEMBER, THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE MARKETING AND PROCESSING SOCIETY LTD.NO.T.383, NEDUMANGAD, THIRUVANANTHAPURAM. 2. T.ARJUNAN, MEMBER, THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE MARKETING AND PROCESSING SOCIETY LTD.NO.T.383, NEDUMANGAD, THIRUVANANTHAPURAM. 3. B.HARIDAS, MEMBER, THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE MARKETING AND PROCESSING SOCIETY LTD.NO.T.383, NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. MR.B.S.SWATHY KUMAR RESPONDENT(S): --------------------------- 1. STATE OF KERALA,REPRESENTED BY SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, GENERAL, THIRUVANANTHAPURAM. 3. THE PART-TIME ADMINISTRATOR, (UNIT INSPECTOR OF CO-OPERATIVE SOCIETIES, NEDUMANGAD CIRCLE), THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE MARKETING AND PROCESSING SOCIETY LTD.NO.T.383, NEDUMANGAD, THIRUVANANTHAPURAM. R1 & R2 BY SR. GOVERNMENT PLEADER MR.K.C.SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss K.SURENDRA MOHAN, J. -------------------------------- WPC No.4910 of 2010 -------------------------------- Dated this the 5th day of April 2010 Judgment The petitioners have filed this writ petition challenging an order dated 3.2.2010 passed by the first respondent - Government dismissing an appeal filed by them. The order is evidenced in these proceedings by Ext.P13. As per Ext.P13, the action of the Joint Registrar of Co-operative Societies (General) in finding that the Managing Committee of the society had lost its quorum and the consequent appointment of a Part time administrator have been held to be in order. 2. The petitioners are members of the Thiruvnananthapuram District Co-operative Marketing and Processing Society Ltd. No.T.383, Nedumangad, (hereinafter referred to as the 'Society' for short). The first petitioner is the elected President while the second and third petitioners are the elected members of the Managing Committee of the society. The first petitioner has been the President of the society for the past 17 years, continuously. The first petitioner is a leader of the wpc No.4910 of 2010 2 Communist Marxist Party (CMP). Petitioners 2 and 3 belong to the Indian National Congress. The Managing Committee of the society consists of 9 members who belong to the various constituents of the United Democratic Front (UDF). 3. According to the petitioners, there had been various attempts to oust the Managing Committee of the society, allegedly at the instance of the Ruling Front. On two occasions, enquiries under Section 65 of the Co- operative Societies Act, 1969 (the 'Act' for short) were ordered, but, the proceedings were found to be illegal and were set aside by this Court in WPC Nos.14854 of 2007 and 32125 of 2007. 4. In the above circumstances, there arose differences among the members of the Managing Committee and a no confidence motion was moved against the first petitioner. Though a meeting was convened on 8.1.2009 for considering the no confidence motion, the meeting could not transact any business due to lack of quorum. Thereafter, on 15.1.2009, two members of the Managing Committee by name Pariyaram Madhu and Anad wpc No.4910 of 2010 3 Jayachandran came to the first petitioner and submitted two letters dated 8.1.2009 and 9.1.2009 stating that they were resigning from the Managing Committee. Thereafter, the petitioner made enquiries in the office of the second respondent and came to know that another member of the Managing Committee by name Appukuttan Nair had handed over three other resignation letters, one on his own behalf and the other on behalf of petitioners 2 and 3 to the said authority. There upon, it is alleged that the second petitioner had submitted Ext.P3 letter to the second respondent requesting him not to take any action on the resignation letters and informing him that he had no knowledge of the said letters. 5. The case of petitioners 2 and 3 is that they had not given any such letters of resignation to the second respondent, that the said letters were actually given by them to Shri. Appukuttan Nair who was the Block Leader of the Congress Party, while taking charge as members of the Managing Committee in the year 2005, as is the usual practice in the Party. They alleged that the said letter which was intended to be kept locked was misused and wpc No.4910 of 2010 4 given to the second respondent without their knowledge. However, the second respondent did not accept the explanation of the petitioners and appointed the third respondent as the Part time Administrator of the society as per Ext.P4 order. The petitioners immediately challenged Ext.P4 before this Court in WPC No.2478 of 2009. However, the said writ petition was disposed of on 23.1.2009 directing the first respondent to take a decision on the question as to whether the Managing Committee had lost its quorum, after hearing all the members. 6. Pursuant to the judgment of this Court the petitioners submitted Exts.P5, P6 and P7 explanations, to the second respondent. According to the petitioners, petitioners 2 and 3 had not submitted any resignation letters. The letters given by them to the first petitioner through Appukuttan Nair were letters requesting for an adjournment of the meeting of the Managing Committee scheduled on 15.1.2009. Though the matter was heard by the second respondent, no orders were passed. Therefore, the first petitioner initiated contempt proceedings before this Court as CCC No.314 of 2009. Subsequently, on wpc No.4910 of 2010 5 4.4.2009 the first petitioner obtained a copy of the order passed by the second respondent on 16.2.2009, which is Ext.P10. According to the petitioners, Ext.P10 has been issued without considering any of the issues that were raised or canvassed by the petitioners. The petitioners challenged Ext.P10 before this Court by filing WPC No.11747/2009 against it. However, the said writ petition was disposed of by this Court at the admission stage itself holding that since the issue raised was a mixed question of law and fact, they were better decided in the alternative remedy of an appeal to the Government, that was available to the petitioners. Though the petitioners challenged the judgment in W.A.No.981 of 2009 and W.A.No.2422 of 2009, both the writ appeals were disposed of directing that if the petitioners were to file an appeal within a period of three weeks from the date of the judgment, the same should be disposed of within a period of six weeks therefrom. Thereafter, the petitioners filed an appeal, the matter was considered by the first respondent and has been dismissed by an order dated 3.2.2010, which is Ext.P13. This writ petition is filed challenging Ext.P13 order of the wpc No.4910 of 2010 6 Government. 7.According to the counsel for the petitioners, the entire action that was initiated against the petitioners was politically motivated and devoid of any bonafides whatsoever. It is alleged that the whole exercise was aimed at wresting control of the administration of the society from the present Managing Committee. According to the petitioners, there were some differences of opinion with two of the members of the Managing Committee by name Pariyaram Madhu and Anad Jayachandran and Appukuttan Nair. The first two persons belong to the NCP which is another political party, while the third person is a local leader of the Indian National Congress. The CPM took advantage of the situation by moving a no confidence motion against the first petitioner with the support of the said persons. However, the motion could not be carried and the meeting had been adjourned for want of quorum. According to the petitioners, the Congress Party had obtained signed resignation letters from the second and third petitioners in the year 2005 when they assumed office, which was made use of by Appukuttan Nair by wpc No.4910 of 2010 7 submitting the same to the Assistant Registrar. According to the second and third petitioners, immediately on coming to know that such resignation letters had been submitted, the 2nd petitioner had submitted Ext.P3 letter to the second respondent intimating the said authority that the said resignation letters should not be accepted for the reason that he had nothing to do with the same. It is contended that since petitioners 2 and 3 had not resigned from their posts as members of the Managing Committee, the finding that the Managing Committee had lost its quorum is unsustainable. Since only three persons, Appukuttan Nair, Anad Jayachandran and Pariyaram Madhu could be considered to have resigned from the Managing Committee, it is contended that the Managing Committee had not lost its quorum. Therefore, the counsel for the petitioner contends that Ext.P10 order is liable to be set aside and the writ petition allowed as prayed for. 8. A counter affidavit has been filed by the second respondent on behalf of the first respondent also. According to the second respondent, due to the resignation of five members, the Managing Committee of the society wpc No.4910 of 2010 8 had lost its quorum. Therefore, the second respondent had appointed the third respondent as the Part time Administrator of the society under Section 33 of the Act. The further case of the second respondent is that on 6.12.2008, a no confidence motion for removing the first petitioner - President of the society from office was received. Mr.T.Arjunan and Mr.B.Haridas, petitioners 2 and 3 were among the persons who had signed the no confidence motion, which is produced as Ext.R2A. Though a meeting for considering the no confidence motion was convened on 8.1.2009, it could not be held due to lack of quorum. Therefore, Sri.Pariyaram Madhu and Sri.T.Arjunan (the second petitioner) tendered their resignation from the Committee on 8.1.2009. Another member Anad Jayachandran submitted his resignation on 9.1.2009. Two other members, Sri.Appukuttan Nair and Sri.B.Haridas(third petitioner) submitted their resignation on 10.1.2009. The resignation letters of Sri.Appukuttan Nair and the petitioners are produced along with the counter affidavit and marked as Exts.R2B, R2C and R2D respectively. The Assistant Registrar, Nedumangad wpc No.4910 of 2010 9 reported the matter to the second respondent as per Ext.R2(E). He also verified the genuineness of the signatures in the resignation letters and submitted Ext.R2 (F). Since it was found that the Managing committee had lost its quorum consequent to the resignation of five members, Ext.P4 order was passed under Section 33 of the Act appointing an Administrator for the society. 9. The petitioners challenged Ext.P4 before this Court in WPC No.2478 of 2009. The said writ petition was disposed of directing the second respondent to ascertain whether there was quorum to convene the meeting, after hearing the parties also. Accordingly, all the parties were heard and it was ascertained that the signatures in the resignation letters were genuine. Since the petitioners very well knew that they could not withdraw the resignation letters, they were trying to put forward a case that they have not tendered the resignation. In the above view, it has been found that the resignation letters were proper and Ext.P10 order was issued confirming Ext.P4. 10. The petitioners challenged Ext.P10 in WPC No.11747 of 2009. However, the said writ petition was wpc No.4910 of 2010 10 disposed of directing the petitioners to file an appeal before the Government. Accordingly, the petitioners filed an appeal, which was also considered in the light of the relevant records. Since Ext.P13 order has been issued after a careful consideration of the contentions of the petitioners, the same is absolutely legal and justified in the facts and circumstances of the case. The grounds raised against the said order are all unsustainable and liable to be rejected. Though the petitioners have sought for a direction in this writ petition to reinstate the committee and for a further direction to permit the first petitioner to continue as the delegate to the Kerala State Marketing Federation, the petitioners are not entitled to any of the said reliefs. It is pointed out that as per Rule 46 of the Kerala Co-operative Societies Rules (the 'Rules' for short), the delegate of one society who is borne on the committee of another society shall cease to be a member of such committee as soon as he ceases to be a member of the committee of his society. Therefore, it is contended that the writ petition is liable to be dismissed. 11. I have heard Sri.B.S.Swathi Kumar who appears wpc No.4910 of 2010 11 for the petitioners and Sri.K.C.Santhosh Kumar who appears for the respondents. I have also considered the contentions of the rival parties anxiously. 12. The case of the petitioners is that the first petitioner is the President and the other petitioners are the members of the Managing Committee of their Society. They have filed this writ petition challenging Ext.P4 order of the second respondent appointing the third respondent as the Administrator of the Society. Ext.P4 has been found to be in order by Exts.P10 and P13 proceedings. The Administrator has been appointed on the basis of a finding that the Managing Committee had lost its quorum consequent to the resignations submitted by five members thereof. According to the petitioners, only three members had submitted their resignations and petitioners 2 and 3 had not resigned from the Managing committee. Therefore, it is contended that the Managing Committee has not lost its quorum. For the above reason, they contend that Exts.P4, P10 and P13 are liable to be set aside. 13. According to petitioners 2 and 3, they had handed wpc No.4910 of 2010 12 over their resignation letters to Sri. Appukuttan Nair who is the Congress Block Leader, in the year 2005, at the time when they took charge as the members of the Managing Committee, as is the usual practice in the Congress Party. They contend that their resignation letters have been misused by Sri.Appukuttan Nair by submitting them to the Assistant Registrar, without any authority. They also rely on Ext.P14 letter issued by the General Secretary of the Congress Party informing the second respondent that the Party had not decided that its members should resign from the society. Therefore, it is pointed out that when petitioners 2 and 3 themselves contend that they had not issued any resignation letters, the said assertion should have been accepted. The learned Senior Government Pleader on the other hand contends that after having submitted their resignations, petitioners 2 and 3 were now trying to wriggle out of the situation by contending that they have not given any such resignation letters. 14. It is worth noticing that the sequence of events that culminated in Ext.P4 started with the initiation of the no confidence motion against the first respondent wpc No.4910 of 2010 13 pursuant to Ext.R2(A). The same is dated 3.12.2008 and is signed by petitioners 2 and 3 also. Therefore, they were persons who had expressed no confidence in the 1st petitioner on the said date. It is also not in dispute that pursuant to Ext.R2(A), a meeting of the Managing Committee was convened on 8.1.2009. But, the meeting could not be held because of lack of quorum. On the same day itself the second petitioner is seen to have submitted Ext.R2(D), which is the copy of a resignation letter dated 8.1.2009. The same is addressed to the Assistant Registrar. Ext.P1 is also of the same date while Ext.P2 is dated 9.1.2009. Thereafter, the third petitioner is seen to have submitted Ext.R2(C) resignation letter on 10.1.2009 and one Sri.Appukuttan Nair has submitted Ext.R2(B) on 10.1.2009. The dispute of the petitioners is only with regard to Exts.R2(C) and R2(D) resignation letters. Their case is that they are letters handed over by them to Sri.Appukuttan Nair in the year 2005 at the time of their taking charge as members of the Managing Committee. However, there is no evidence to prove the above fact. There is also no evidence to show that any such practice of wpc No.4910 of 2010 14 obtaining signed resignation letters from its members was being followed by the Congress Party, as alleged. Therefore, the probability of Exts.R3(C) and R3(D) being letters issued in the year 2005 is very remote. In the absence of any evidence of the said fact, the contention has to fall to the ground. At the same time, there is nothing on the face of the letters to indicate that there was any tampering with them by inserting dates or other details, which should necessarily have been there if there was any truth in the allegation that they were signed and obtained in the year 2005. 15. At the same time, the fact that petitioners 2 and 3 were also signatories to the no confidence motion cannot be lost sight of. The probability of petitioners 2 and 3 having submitted their resignations, when faced with the futility of pursuing their no confidence motion due to lack of quorum looms large and assumes importance. Further, petitioners 2 and 3 do not dispute their signatures in the resignation letters. Therefore, it is also probable that they had initially submitted their resignation letters and are only trying to wriggle out of the situation by putting wpc No.4910 of 2010 15 forward a case that signed resignation letters obtained from them were misused. Since there is no evidence to find that the case pleaded by the petitioners are true, their case can only be rejected. The consequence that follows is the inevitable finding that the Managing Committee has lost its quorum, as rightly found in Ext.P4, P10 and P13. Though the counsel for the petitioner has put forward a contention that since Ext.R2(D) is addressed to the Assistant Registrar and not to the President, the same is invalid, the said contention has to fail for more reasons than one. Firstly, Rule 38(3) of the Rules is only an enabling provision which provides that any member of a Committee 'may' tender his resignation to the President of the Committee. It does not follow that submission of the resignation to any other authority would be invalid or incompetent. Secondly, if the 2nd petitioner's contention is accepted, it would amount to permitting him to take advantage of his own wrongful act, of addressing the same to the wrong authority. Thirdly, acceptance of the above argument would provide an avenue to a member to withdraw his resignation,which is not permissible. All the wpc No.4910 of 2010 16 contentions of the petitioners have been properly considered in Exts.P10 and P13 also. I do not find any reason to interfere with the said findings. For the foregoing reasons, there are no grounds to interfere with the impugned proceedings of the respondents evidenced herein by Exts.P4, P10 and P13. The Writ Petition fails and is accordingly dismissed. No costs. K.SURENDRA MOHAN, Judge css/