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Narayan Nair and anr. Vs. Joint Registrar of Co-operative Societies and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKerala High Court
Decided On
Case NumberO.P. No. 6261 of 1981-C
Judge
Reported inAIR1983Ker136
ActsKerala Co-operative Societies Act, 1969 - Sections 17 and 31(3); Kerala Co-operative Societies Rules, 1969 - Rules 18 and 43; General Clauses Act, 1897 - Sections 16; Constitution of India - Article 226
AppellantNarayan Nair and anr.
RespondentJoint Registrar of Co-operative Societies and ors.
Appellant Advocate C.K. Sivashankaran Panicker and; K.S. Radhakrishnan, Advs.
Respondent Advocate Government Pleader,; Thomas Koshy and; George Mathew K.
DispositionPetition dismissed
Cases ReferredS.P. Gupta v. Presisident of India
Excerpt:
- - before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is that cases may arise where there is undoubtedly public injury by the act or omission of the state or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals......briefly stated are as follows :-- the two petitioners are members of anikkad service co-operative bank (the bank), the 3rd respondent in the original petition. respondents 1 and 2 respectively are the joint registrar of co-operative societies, ernakulam, and assistant registrar of co-operative societies, muvattupuzha. respondents 4 and 5 are stated to be the members of the committee of the bank. the affairs of the 3rd respondent bank is governed by the provisions of the kerala co-operative societies act, 1969 (the act) and the kerala co-operative societies rules, 1969 (the rules) and the bye-laws framed thereunder for the bank. the 5th respondent was the president of the bank duly elected at the meeting of the committee held on 19-4-1981. while so, in november 1981 a requisition was.....
Judgment:
ORDER

K. Bhaskaran, J.

1. This writ petition raises two questions of law :

(1) Whether the President of a Cooperative Society could be removed from his office by a motion carried by a majority of the number of members of the committee (Board of Directors) of the Society; and (2) whether such removal could be challenged by a member of the society.

2. The facts briefly stated are as follows :-- The two petitioners are members of Anikkad Service Co-operative Bank (the Bank), the 3rd respondent in the Original petition. Respondents 1 and 2 respectively are the Joint Registrar of Co-operative Societies, Ernakulam, and Assistant Registrar of Co-operative Societies, Muvattupuzha. Respondents 4 and 5 are stated to be the members of the Committee of the Bank. The affairs of the 3rd respondent Bank is governed by the provisions of the Kerala Co-operative Societies Act, 1969 (the Act) and the Kerala Co-operative Societies Rules, 1969 (the Rules) and the bye-laws framed thereunder for the Bank. The 5th respondent was the President of the Bank duly elected at the meeting of the committee held on 19-4-1981. While so, in November 1981 a requisition was made by seven members out of nine members of the committee to discuss a no confidence motion against the President, the 5th respondent and to elect a new President in his place. A meeting of the Board of Directors was held on 3-11-1981. The 5th respondent who presided over the meeting ruled that no-confidence motion against the President was not envisaged by the Act, the Rules and the bye-laws; and what followed was a declaration by him that the meeting was dissolved. Ext. P-1 is the copy of the proceedings of the said meeting held on 3-11-1981. Decision No. 461 of that meeting, extracted at page 12 of the writ petition, is to the effect that the resolution tabled for the passing of the no-confidence motion against the President, the 5th respondent, and the one relating to the election of a new President being matters not provided for in the Act, the Rules and the bye-laws, could not be taken up for consideration and, therefore, the meeting was dissolved. It would appear that after the meeting presided over by the 5th respondent was dissolved, as mentioned above, six members held a meeting and elected the 4th respondent Sri C.A. Majeed to be President of the Bank. Intimation regarding this election of the 4th respondent to the office of the President of the Bank was conveyed by him (4th respondent) to the 1st respondent, who, in his turn, by his proceedings No. CRP 10425/81 dated 20-11-1981 addressed to the 5th respondent directed him to hand over charge of the records to the 4th respondent as he was stated to have been the newly elected President. Ext. P-3 is the copy of the letter dated 7-11-1981 from the 5th respondent to the Secretary of the Bank asking for the calling, of an extraordinary meeting of the General Body, as provided in bye-law 23, Part II.

3. In this writ petition it is contended that the provisions of the Act, the Rules and the bye-laws of the Bank do not permit moving or the passing of a no confidence motion against the president of the society. Section 28 of the Act provides for the appointment of the committee. According to that section, the general body of a society shall constitute a committee in accordance with the bye-laws and entrust the management of the affairs of the society to such committee. It also provides for nomination of members of the committee for such period as may be provided for by the bye-laws and as provided for by the Government or the Registrar. While Rule 43 of the Rules which makes provision in regard to the election of President, Vice President, Treasurer or any other officer, by whatever name he is designated, it does not make any specific provision regarding the removal of the President from his office by the passing of a no confidence motion. All the same, it is of considerable importance to notice that Sub-section (1) of Section 31 which makes provision for the Government, or any authority specified by the Government in that behalf, to nominate not more than three persons or one-third of the total number of members of the committee of the society, whichever is less, to be members of the committee. Sub-section (3) of the said section provides.

'A person nominated to the committee of a society under Sub-section (1) shall not take part in the discussion of any no confidence motion or vote on any such motion'.

This would indicate that the legislature was not totally averse to the idea of a President or any other office bearer of the committee being removed by no confidence motion. On the other hand, 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; otherwise, there is no point in having a provision in the nature of what is contained in Sub-section (3) of Section 31 referred to above. The counsel for the petitioners submitted that the provisions contained in Section 17 of the Act which would indicate that a President could be removed by the passing of a no confidence motion. Section 17 (1) of the Act provides as follows:--

'Any member of a society who has acted, adversely to the interests of the society, may be expelled upon a resolution of the general body passed at a special meeting convened for the purpose by the votes of not less than two-thirds of the total number of members present and voting at the meeting.'

Rule 18 of the Rules provides for the procedure for expulsion of members. Neither Section 17 nor rule 18 in my view has direct application to the question relating to the right of the committee to remove the President from his office by a no confidence motion. The submission of the counsel for the petitioners is that the election of the 4th respondent to the office of the President of the Bank is purported to have been done by the committee under Ext. P-2 communication of the 1st respondent is in violation of the provisions of the Act, the Rules and the bye-laws and, therefore, the election had to be set aside and the office of the President of the Bank restored to the 5th respondent.

4. The counsel for the petitioners placed reliance on the decision of the Andhra Pradesh High Court in Veeramachaneni Venkata Narayana v. Dy. Registrar of Co-operative Societies, Eluru (ILR (1975) Andh Pra 242) wherein 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; and, therefore, the removal of the President in that, case was illegal and void.

5. It is true that there is no specific provision in the Act and the Rules which expressly provides for the removal of the President of the committee of the society. Though Rule 43 provides for the election of the President, it is silent about the removal of the President. By applying the principles of Section 16 of the General Clauses Act, it could, however, be construed that the authority which appoints the President shall have the power to remove him from that office. Sambasiva Rao, J., in the decision referred to in the ruling cited by the counsel for the petitioners (AIR 1972 Andh Pra 349) has pointed out as follows:

'A co-operative society, as a gram panchayat, is a basic democratic unit intended to help its members to manage some of their affairs for themselves in a democratic way. At every stage of the creation and functioning of a cooperative society it is the will of the members that is important. The Act and the rules distribute the functions of the society between the general body, that exercise the ultimate authority is subject to the provisions of the Act and the Rules and the bye-laws made under the Act. Under the Rules so made and the bye-laws framed, the election of office bearers is specifically entrusted to the committee, while the general body elects Or removes members of the committee. Thus once a committee is elected by the General Body, it is the committee that ejects its office-bearers. True there is no specific provision in the Act empowering the Committee of Directors of a Co-operative Society to pass a no confidence motion against the President or to replace him before the term of the committee. But considering the democratic and co-operative principles underlying the co-operative law, it could not 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'

I am also of the view that the petitioners do not have locus standi to bring the writ petition. If at all any one would feel aggrieved, it was the 5th respondent who had been removed from the office of the President of the Bank; and he himself could have moved the appropriate authorities for redressal of the grievance, if any, he had. The recent judicial thinking, particularly after the pronouncement of the judgment by the Supreme Court in S.P. Gupta v. Presisident of India (AIR 1982 SC 149). had added new dimension to the concept of public interest litigation or social justice litigation, as we might call it more meaningfully, and it has also enlarged the scope and ambit of the concept of locus standi. All the same, Courts have to exercise certain amount of restraint to guard themselves against their becoming instruments of oppression by those who resort to abuse of the process. In this connection what Bhagwati, J., himself observed in para. 24 of the decision referred to above, at page 195 of the report, could be recalled profitably:

'Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.'

The petitioners have no case that the 5th respondent had any valid reason to refrain from instituting legal proceedingsif any, he was entitled to if as a matterof fact he had cause to feel aggrieved.That being the position, as a result ofrecognising the locus standi of the petitioners to bring action against the Bankwould be, as Bhagwati, J. would put it.to foist the relief on the 5th respondentwhich he did not want.

For the foregoing reasons the writ, petition fails and is dismissed; however in the circumstances of the case, without any order as to costs.


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