IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 WP(C).No. 20878 of 2007(I) ------------------------------------- PETITIONER: ------------------ P.J.KURIAN, S/O.P.K.JOSEPH, PANNIKKOTTU HOUSE, PURAMATTOM P.O., THIRUVALLA (FORMER PRESIDENT, THIRUVALLA TALUK CO-OPERATIVE RUBBER MARKETING SOCIETY LTD. NO.A 253, CHUNGAPPARA). BY ADV. SRI.S.SUBHASH CHAND RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PATHANAMTHITTA. 4. PART-TIME ADMINISTRATOR, THIRUVALLA TALUK CO-OPERATIVE RUBBER MARKETING SOCIETY LTD.NO.A 253, CHUNGAPPARA (UNIT INSPECTOR, EZHUMATTOOR UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MALLAPPALLY. 5. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MALLAPPALLY. WP(C) NO: 20878/2007 6. THE THIRUVALLA TALUK CO-OPERATIVE RUBBER MARKETING SOCIETY LTD.NO. A 253, CHUNGAPPARA REPRESENTED BY ITS SECRETARY. BY GOVERNMENT PLEADER SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 20878/2007 APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE BYE LAWS OF THE THIRUVALLA TALUK CO-OP RUBBER MARKETING SOCIETY LTD. NO.A 253, CHUNGAPPARA CURRENT IN FORCE. EXT.P2. COPY OF THE ORDER DT. 18/6/07 THUS ISUED BY THE R3. EXT.P3. COPY OF THE RELEVANT PAGES OF THE REGISTER INDICATING THE ATTENDANCE IN THE MEETING OF THE BOARD OF DIRECTORS HELD ON 12/12/2006. EXT.P4. COPY OF THE RELEVANT PAGES OF THE REGISTER INDICATING THE ATTENDANCE IN THE MEETING OF THE BOARD OF DIRECTORS HELD ON 16/12/2007. EXT.P5. COPY OF THE RELEVANT PAGES OF THE REGISTER INDICATING THE ATTENDANCE IN THE MEETING OF THE BOARD OF DIRECTORS HELD ON 19/3/2007. EXT.P6. COPY OF THE RELEVANT PAGES OF THE REGISTER INDICATING THE ATTENDANCE IN THE MEETING OF THE BOARD OF DIRECTORS HELD ON 16/6/2007. EXT.P7. COPY OF THE PORTIONS OF THE MINUTES BOOK PERTAINING TO THE SOCIETY CONTAINING THE MINUTES OF THE BOARD MEETING DT. 12/12/2006, 16,12,2006, 19/3/2007 AND 16/6/2007. RESPONDENT'S EXHIBITS EXT.R3A. COPY OF THE PROCEEDINGS OF RETURNING OFFICER. EXT.R3B. COPY OF THE PROCEEDINGS NO. 0/7660/94/R.DIS DT. 18/3/95 OF JOINT REGISTRAR, PATHANAMTHITTA. True copy tga THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.20878 OF 2007 ------------------------------------------- Dated this the 17th day of January, 2008 JUDGMENT By Ext.R3(b), the bye-laws of the 6th respondent co- operative society stood amended with approval of the competent authority. In terms of the amendment, the Board of Directors shall consist of 14 members, of whom, 11 elected members and two nominees of the Rubber Bord. Out of the 11 members to be elected, 10 shall be the representatives of 'A' class members and one shall be the representative of 'C' class members. This means that the total number of members of the committee is determined as 14, among whom, 11 have to be those from among class 'A' and class 'C' members, following the ratio prescribed in the second part of the said bye-law. There has also to be two nominees of the Rubber Board. Therefore, apart from 11 members from among the 'A' class and 'C' class members and the two nominees of the Rubber Board, there could be even one more member. WPC.20878/07 Page numbers 2. By Rule 41 (1) of the Kerala Co-operative Societies Rules, 1969, where the members of a society consists of both individuals and societies, the committee of the society shall consist of such number of individual members and members representing societies as may be fixed in the bye-laws. This statutory prescription stands satisfied in so far as the petitioner is concerned, if the prescription regarding the ratio between class 'A' members and class 'C' members is satisfied. There is no dispute that it is not so. I may also refer to Section 28A of the Kerala Co-operative Societies Act, 1969, hereinafter, the 'Act' for short, which provides for reservation of women members and members belonging to Scheduled Castes and Scheduled Tribes in the committee. That rule of reservation is one that acts within the committee and therefore, that provision has to be read in conjunction with Section 28 of the Act. 3. An interesting controversy has been raised with the petitioner on the one hand and the official respondents on the other. The question raised is as to whether the reservation for WPC.20878/07 Page numbers the women members and SC/ST members, in terms of Section 28 A, can be done by standing outside and in excess of the total number of members in terms of the prescription in the bye-laws. The decision of this Court in Gopinathan Nair v. Senior Inspector of Co-operative Societies [1986 KLT 1269] is cited by the learned Government Pleader, with particular reference to para 16 thereof, to state that this Court has held that the amendment of the bye-laws is not visualised for reaching at the object sought to be achieved by the introduction of Section 28 A into the Act. That principle cannot be found fault with and the reservation in terms of Section 28 A can be done within the existing strength of members as per the by-laws' prescription. It has been laid down that when Section 28 A does not enjoin any formal change to the bye-laws, such procedure need not be adopted. At the same time, it has to be noted that the maximum strength of the committee of the society has to be in terms of the bye-laws. It is hence, a matter of doubt as to whether the reservation provided in Section 28 A could be given effect to by standing beyond the number of members fixed as per the bye- WPC.20878/07 Page numbers laws to constitute the committee. To that extent, the observation in the aforesaid judgment that “it is equally open to the society to leave the existing pattern in tact, stipulating for the members to be elected in accordance with the existing procedure, and to provide additionally for the two seats, one for women and one for SC/ST” may require a second look. 4. Be that as it may, the facts of the case in hand show that as per Ext.R3(a), 13 persons were elected. The bye-laws requires that two nominees of the Rubber Board shall be in the committee. This means that the committee in terms of Ext.R3(a) is a 15 member committee. Leaving aside the question as to whether Ext.R3(a) election is in terms of the bye-laws, which question cannot be raised as of now, it has to be held that the quorum of the committee in office following the election as per Ext.R3(a) is eight. In the meetings of 16.12.2006 and 19.3.2007, the number of members present were respectively 7 and 6 and the total number of members present in the meeting of 16.6.2007 was 9. Therefore, there was no quorum for the WPC.20878/07 Page numbers meetings on 16.12.2006 and 19.3.2007. Hence, the impugned action of supercession cannot be found fault with. In the light of the above finding, the question as to whether the petitioner is entitled to a pre-decisional notice would confine to be academic, because, even if the petitioner was given an opportunity of being heard, the resultant decision would not have been different. The plea of violation of natural justice and rule of notice and hearing are, therefore, repelled. 5. The impugned order was issued on 18.6.2007 and the administrator took charge on 21.6.2007. The only ground of supercession was absence of quorum. Having regard to the predominant requirement of the co-operative societies to work as democratic institutions, it is not in the interest of the 6th respondent that the administrator continues for long. For the aforesaid reasons, while repelling the contention against the impugned supercession, this writ petition is disposed of directing that the official respondents, including the WPC.20878/07 Page numbers administrator, shall take necessary action to have the election to the committee of the society held within an outer limit of four months from now. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.