IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 WP(C).No. 32813 of 2008(F) -------------------------- PETITIONER(S): --------------- M.B.SATHYAN, CHAIRMAN, CIRCLE CO-OPERATIVE UNION, KOZENCHERRY, RESIDING AT MAVUNILKKUNNATHIL, ELANTHOOR EAST.P.O. BY ADV. SRI.V.SETHUNATH RESPONDENT(S): --------------- 1. THE REGISTRAR OF OCOOPERATIVE SOCIETIES, THIRUVANANTHPURAM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PATHANAMTHITTA. 3. THE ASST. REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), KOZENCHERRY. 4. THE SECRETARY, CIRCLE CO-OPERATIVE UNION, KOZENCHERRY. 5. THE DEPUTY REGISTRAR (ADMINISTRATION) OFFICE OF THE JOINT REGISTRAR (GENERAL) PATHANAMTHITTA. BY GOVT. PELADER SRI.K.C.SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.32813 OF 2008 ------------------------------------------- Dated this the 24th day of November, 2008 JUDGMENT The petitioner was the Chairman of the managing committee of a Circle Co-operative Union, which has been found to have lost its quorum of 8 members in terms of the prescription in Rule 142 (3) of the Kerala Co-operative Societies Rules, 1969, hereinafter, 'the Rules' for short. 2. Going by the counter affidavit, the prescribed strength of the committee is 15, including two ex-officio members. This means that 13 members have to be elected. But, only 11 members were elected and they assumed office on 10.6.2005. Among them, one became ineligible to continue from July, 2005; one died in August, 2006; two others became ineligible some time in 2006; another resigned in October, 2007 and another became ineligible in November, 2007. The number of members in the committee, therefore, fell to 7, which is below the prescribed quorum of 8. For want of quorum, the Registrar WPC.32813/08 Page numbers issued the impugned Ext.P1, appointing the Deputy Registrar (Administration), Pathanamthitta as officer under Section 88A of the Kerala Co-operative Societies Act, 1969, hereinafter, 'the Act', for short, to manage the affairs of the Circle Co-operative Union. This is under challenge. 3. A reading of Section 88A would show that the power under that provision, to appoint an officer on default or negligence of members of a Circle Co-operative Union, is not one that would be attracted to a case of fall in quorum, but, to situations of persistent default, negligence in performance of duties, commission of acts prejudicial to the interest of the Union, willful disobedience or failure to comply with any lawful order or direction given by the Registrar etc. 4. Chapter XIII among the Rules deals with Co-operative Unions. Rule 129 provides for election to the committee of the Circle Co-operative Union and Rule 138 provides a mandate that interim vacancy of a member shall be filled up by election in the WPC.32813/08 Page numbers manner provided in those rules and the person so elected shall hold office for the remaining term of office of the person in whose place he was elected. Rule 129 (b) provides for the drawing up of a resolution by the committee in office, to trigger the electoral process. The prescription in Rule 138 that the interim vacancy shall be filled up by election in the manner provided in those rules essentially should have guided the petitioner and his companions in the Circle Co-operative union to draw up a resolution as and when the interim vacancies noted above arose. Even according to the petitioner, no such resolution was drawn in relation to any of the vacancies that arose. Obviously therefore, the situation of inability to maintain the quorum is essentially the making of the petitioner and his companions in the Circle Co-operative Union in question. In the absence of a quorum as prescribed in Rule 142 (3), the Circle Co- operative Union cannot carry out its duties and responsibilities. It is therefore that the Registrar was compelled to step in, leading to the issuance of the impugned order. WPC.32813/08 Page numbers 5. While it may be true that no situation referable to Section 88A of the Act; i.e., any vitiating element which could have invited the penalty under Section 88A, is demonstrated or at least alleged against the petitioner and his companions, it is obvious that the committee cannot function owing to lack of quorum. Under such circumstances, the only course that could be adopted, as of now, is to direct the officer appointed as per Ext.P1 to immediately draw up a resolution for the purpose of conducting election to the interim vacancies available as on date, including all unfilled vacancies, and communicate such resolution to the competent authority in terms of Rules 129 and 138 of the Rules, so that, when the interim vacancies are filled up, the Circle Co-operative Union would stand retrieved from the status of having lost its quorum and could, therefore, function for its remaining term. 6. While it could be pointed out, as attempted by the learned Government Pleader, that on an action under Section 88A of the Act, the committee itself stands removed and only a fresh WPC.32813/08 Page numbers election is possible, as already noticed, no grounds referable to Section 88A is alleged or found against the petitioner and his companions in the impugned Ext.P1. Therefore, that cannot be treated as an order under Section 88A. If it were one under Section 88A, it should also invite certain other consequences owing to the quality of findings that have to be made to result in an action under Section 88A. For the foregoing reasons, this writ petition is ordered directing that Ext.P1 will stand regulated by what is stated herein and the situation in hand would be dealt with by the 5th respondent, by immediately drawing up a resolution for the purpose of conducting election to the interim vacancies which are described in para 5 of the counter affidavit and such election has to be conducted by the competent authority, at the earliest. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.