IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 WP(C).No. 28478 of 2010(H) -------------------------- PETITIONERS: --------------- 1. T.D.JOSEPH, S/O.DEVASSYA, THADATHIL HOUSE, KALLANODE POST, KOORACHUND VILLAGE, KOYILANDI TALUK, KOZHIKODE DISTRICT (MEMBER NO.1344). 2. SATHEESH P.P., S/O.PERUNGAN, PUTHUKUDIMEETHAL, KALLANODE POST, KOORACHUND VILLAGE, KOYILANDI TALUK, KOZHIKODE DISTRICT (MEMBER NO.1379). 3. BABU GEORGE, S/O.GEORGE, VATTUKULAM HOUSE, KALLANODE POST, KOORACHUND VILLAGE, KOYILANDI TALUK, KOZHIKODE DISTRICT (MEMBER NO.1501). 4. JOSE GEORGE, S/O.GEORGE, VATTUKULAM HOUSE, KALLANODE POST, KOORACHUND VILLAGE, KOYILANDI TALUK, KOZHIKODE DISTRICT (MEMBER NO.1516). 5. LUCY JOSEPH, W/O.JOSEPH, THADATHIL HOUSE, KALLANODE POST, KOORACHUND VILLAGE, KOYILANDI TALUK KOZHIKODE DISTRICT (MEMBER NO.1552). BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL SECRETARY TO GOVERNMENT AGRICULTURAL (DAIRY) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT, THIRUVANANTHAPURAM. W.P.(C) NO.28478/2010 3. THE DEPUTY DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT, CIVIL STATION, KOZHIKODE-20. 4. THE DAIRY EXTENSION OFFICER, BALUSSERRY BLOCK DEVELOPMENT OFFICE, BALUSSERRY P.O., KOYILANDI TALUK, KOZHIKODE DISTRICT. 5. THE ATHIYODI KSHEEROLPADAKA SAHAKARANA SANGHOM LTD.NO.F.1787, (APCOS) ATHIYODI P.O., KOORACHUND VILLAGE KOYILANDI TALUK, KOZHIKODE DISTRICT REPRESENTED BY ITS SECRETARY. ADDL.R6: KALLANODE KSHEEROLPADAKA SAHAKARANA SANGOM, KALLANODE P.O., KOORACHUND VILLAGE, KOYILANDI TALUK KOZHIKODE DISTRICT REPRESENTED BY ITS SECRETARY (ADDL.R6 IS IMPLEADED AS PER ORDER DT.28.9.2010 IN I.A.NO.13165/2010) ADDL.R7: BINU MATHEW, AGED 33 YEARS, S/O.MATHEW E.D., EDAKAROT HOUSE, KALLANODE P.O., KAKKAYAM VIA, KOZHIKODE DISTRICT, PIN -673 615. (ADDL.R7 IS IMPLEADED AS PER ORDER DT.10.11.2010 IN I.A.NO.15045/2010) ADDL.R8: FRANCIS XAVIER, AGED 43 YEARS, S/O.XAVIER, KOTAYIL HOUSE, KALLANODE P.O., KAKKAYAM -VIA, KOZHIKODE DISTRICT – 673 615. ADDL.R9: THOMAS CHANDY OZHUKAYIL, AGED 47 YEARS, S/O.CHANDY, OZHUKAYIL HOUSE, KALLANODE P.O., KAKKAYAM -VIA, KOZHIKODE DISTRICT – 673 615. ADDL.R10: SICILY THOMAS, AGED 42 YEARS, W/O.THOMAS, OZHUKAYIL HOUSE, KALLANODE P.O., KAKKAYAM -VIA, KOZHIKODE DISTRICT – 673 615. ADDL.R11: JOHNSON V.J., AGED 41 YEARS, S/O.JOHN, VELIYATH HOUSE, KAKKAYAM P.O., KAKKAYAM -VIA, KOZHIKODE DISTRICT – 673 615. ADDL.R12: UNNI O.F., AGED 55 YEARS, S/O.FRANCIS, OZHUKAYIL HOUSE, KALLANODE P.O., KAKKAYAM -VIA, KOZHIKODE DISTRICT – 673 615. ADDL.R13: SONI JOHN VELIYATH, AGED 37 YEARS, S/O.JOHN, VELIYATH HOUSE , KALLANODE P.O., KAKKAYAM -VIA, KOZHIKODE DISTRICT – 673 615. W.P.(C) NO.28478/2010 ADDL.R14: JOSEPH KURIAN, AGED 41 YEARS, S/O.KURIAN, KANICHERIL, KALLANODE P.O., KOZHIKODE DISTRICT – 673 615. ADDL.R15: JAISY ANTONY, AGED 46 YEARS, W/O.ANTONY VINCENT, PALLIPPARAMBIL, KALLANODE P.O., KOZHIKODE DISTRICT – 673 615. ADDL.R16: THANKAMMA GEORGE, AGED 67 YEARS, W/O.GEORGE KUTTY, KADUKKANMAKKAL HOUSE, KAKKAYAM P.O., KOZHIKODE DISTRICT – 673 615. ADDL.R17: MARY, AGED 63 YEARS, W/O.VARKEY, KAVUNGAL, KAKKAYAM P.O., KOZHIKODE DISTRICT – 673 615. ADDL.R18: PULIKKAL VARGHESE, AGED 66 YEARS, S/O.VARGHESE PULIKKAL HOUSE, KAKKAYAM P.O., KOZHIKODE DISTRICT – 673 615. ADDL.R19: ANNAMMA VARGHESE, AGED 63 YEARS, W/O.VARGHESE PULIKKAL, PULIKKAL HOUSE, KAKKAYAM P.O., KOZHIKODE DISTRICT – 673 615. ADDL.R20: JOSEPH MUNDANATT, AGED 58 YEARS, S/O.PUNNOOSE MUNDATT, KAKKAYAM P.O., KOZHIKODE DISTRICT – 673 615. (ADDL.R8 TO R20 ARE IMPLEADED AS PER ORDER DT.14.3.2011 IN I.A.NO.4108/2011) GOVERNMENT PLEADER, GEORGE MECHERIL FOR R1 TO 4 SRI.BABU JOSEPH KURUVATHAZHA FOR ADDL.R7 SRI.SAJU JOHN FOR R5 SRI.C.P.PEETHAMBARAN FOR ADDL.R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.28478/2010 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE TOPOGRAPHICAL PLAN OF THE KURACHUND PANCHAYAT SHOWING THE AREA OF JURISDICTION OF THE 5TH RESPONDENT. EXT.P2: COPY OF THE BYELAW OF THE 5TH RESPONDENT SOCIETY. EXT.P3: COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DIRECTING TO CONVENE GENERAL BODY OF THE 5TH RESPONDENT TO DISCUSS DELIMITATION OF WARD NO.6 AND 7. EXT.P4: COPY OF THE NOTICE OF THE GENERAL BODY CONVENED PURSUANT TO EXT.P3 DT.8.7.2009. EXT.P5: COPY OF THE ATTENDANCE REGISTER AND MINUTES OF THE DECISION TAKEN IN GENERAL BODY CONVENED ON 22.7.2009. EXT.P6: COPY OF THE G.O.(P) NO.139/2010/AD GRANTING EXEMPTION WITH RESPECT TO CLAUSE C OF SUB SECTION 1 OF SECTION 7 OF THE CO-OPERATIVE SOCIETIES ACT FOR REGISTERING THE ANOTHER SOCIETY WITH OVERLAPPING JURISDICTION DT.2.6.2010. EXT.P7: COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DIRECTING COMPULSORY AMENDMENT TO THE BYELAWS OF THE 5TH RESPONDENT. RESPONDENT'S EXTS: EXT.R1(A): COPY OF THE APPLICATION SUBMITTED BY 301 MEMBERS OF WARDS 6 AND 7 OF KOORACHUND GRAMA PANCHAYAT. EXT.R1(B): COPY OF THE REPORT OF THE DAIRY EXTENSION OFFICER, BALUSSERY. EXT.R7(A): COPY OF THE NOTICE DT.23.11.2010 PUBLISHED BY THE DAIRY EXTENSION OFFICER, DAIRY EXTENSION SERVICE UNIT, BALUSSERY. EXT.R7(B): COPY OF THE MINUTES OF THE MEETING HELD ON 23.11.2010 IN PURSUANCE TO EXT.R7(A) MEETING. EXT.R7(C): COPY OF THE ORDER NO.C-3657/08 DT.13.12.2010 ISSUED BY THE 3RD RESPONDENT. EXT.R7(D): COPY OF THE STATEMENT OF THE 3RD PETITIONER DT.14.10.2010. W.P.(C) NO.28478/2010 EXT.R7(E): COPY OF THE STATEMENT OF THE 4TH PETITIONER DT.14.10.2010. EXT.R7(F): COPY OF THE CHART PUBLISHED BY THE MILMA DETAILING THE RATES OF MILK, BASED UPON ITS QUALITY. EXT.R7(G): COPIES OF THE BILLS DT.1.1.2011 AND 24.5.2011 ISSUED BY THE 5TH RESPONDENT. EXT.R7(H): COPY OF THE BILL DT.4.6.2011 ISSUED BY THE 5TH RESPONDENT TO SMT.PHILOMINA C.J. EXT.R8(I): COPY OF THE PROCEEDING NO.M;BLSY 237/11 DT.21.7.2011 ISSUED BY THE DAIRY EXTENSION OFFICER, DAIRY EXTENSION SERVICE UNIT, BALUSSERY. EXT.R5(A): COY OF THE CERTIFICATE OF HONOR GIVEN TO THE 5TH RESPONDENT BY THE MALABAR REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. (MILMA). EXT.R5(B): COPY OF THE ACCOUNT STATEMENT OF THE 5TH RESPONDENT FOR THE YEAR 2008-2009. EXT.R5(C): COPY OF THE ACCOUNT STATEMENT OF THE 5TH RESPONDENT FOR THE YEAR 2009-2010. EXT.R5(D): COPY OF THE ACCOUNT STATEMENT OF THE 5TH RESPONDENT FOR THE YEAR 2010-2011. //TRUE COPY// PA TO JUDGE C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. -------------------------------------- W.P.(C).No.28478 OF 2010 -------------------------------------- Dated this the 27th day of September, 2011 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, J. W.P.(C) is filed, by five members of which two are Board members of the 5th respondent Society, challenging Ext.P6 order issued by the Government approving setting up of another milk society covering the milk producers of ward Nos. 6 and 7 of the Koorachund Grama Panchayat in Kozhikode District. The petitioners' case is that the 5th respondent Society is maintaining 5 collection centres in Wards 6 and 7 of the Panchayat and therefore, the very basis of the Government Order that long distance travel is required by milk producers of these two wards to deliver milk is factually incorrect. The further allegation is that the Government's assumption that milk producers of Ward Nos.6 and 7 have to travel 5 to 10 kms to deliver milk at the collection centres maintained by the 5th respondent Society is also incorrect. The Government appears to have pass orders based on the report of the concerned Dairy W.P.(C) No.28478/2010 2 Extension Officer, who has furnished the basic data based on which Government has issued Ext.P6 order. At our request, the Dairy Extension Officer personally appeared in Court and explained the local conditions prevailing in the Panchayat and the availability of sufficient milk producers in wards 6 and 7 to justify starting of another Society by them. 2. We have heard the learned counsel appearing for the petitioners, the learned Government Pleader for the respondents 1 to 4 and the learned counsel appearing for additional respondents impleaded in whose favour Ext.P6 is issued by the Government. 3. After hearing both sides, we feel if the members of the 5th respondent Society residing in ward Nos.6 and 7 are not satisfied with the service of the existing Society and want to form a milk Society of their own they are free to do so, no matter, these two wards are presently served by the 5th respondent Society by providing milk collection centres. The specific case of the additional respondents impleaded, which finds support in the W.P.(C) No.28478/2010 3 Government Order is that with the milk production in the said two wards the Society can be promoted and run to the advantage of the members. If the milk producers from two wards of the Panchayat could successfully run a Society, we see no reason why the 5th respondent with members from 10 wards cannot operate without support from milk producers of Ward Nos. 6 and 7. What we feel is that unnecessary fragmentation of Society should be avoided because increased overheads and variable much costs will lead to lower payment to the producers of milk. Everyones concern should be to ensure highest payment to the milk producers, which will be an incentive for increased milk production. However, if alteast 60% of the members of the 5th respondent from Ward Nos. 6 and 7 support formation of a new Society, we direct the Deputy Director of Dairy Development, Kozhikode District, the 3rd respondent herein, to permit the formation of a new Society. The W.P.(C) is accordingly disposed of directing the 3rd respondent to convene a meeting of the members of the 5th respondent Society from Ward Nos. 6 and 7 and to discuss with them and allow them to express their opinion in favour of starting new Society or to continue W.P.(C) No.28478/2010 4 with the 5th respondent Society and to take decision. We make it clear that atleast 60% of members of the 5th respondent from ward Nos. 6 and 7 choose to start a new Society in those two wards, he should permit it. There will be a direction to the 5th respondent not to induct any new members from ward Nos. 6 and 7 till a decision is taken by the 3rd respondent about starting the new Society. However, if new society is started in Ward Nos. 6 & 7, the Society is free to induct more members from the Wards in accordance with the bye law. Even if the majority for ward Nos. 6 and 7 do not opt to form new Society, the 3rd respondent should hear the grievances against the existing Society and find out solution for the same, which may be by induction of more members from ward Nos. 6 and 7 to the Board of the Society. If any complaint is raised against the management of the 5th respondent, then the 3rd respondent should conduct an enquiry and take remedial action, so that, milk producers in other wards also will not suffer on account of any mismanagement whatsoever. The 5th respondent Society will give address of all the members of Ward Nos. 6 and 7 to the 3rd respondent for the purpose of issuing notices to convene the W.P.(C) No.28478/2010 5 meeting. This should be done within a period of three weeks from the date of production of a copy of this judgment. The 3rd respondent should take a decision within six weeks from the date of receipt of a copy of this judgment. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps/28/9