Antony Dominic, J. All these appeals are filed by Sri.K.A.Abdul Rahman, a member of the Cheranelloor Service Co-operative Bank, challenging the common judgment rendered by the learned single Judge in WP(C) Nos.9156, 26410, 27765 & 27493/14.
2. Briefly stated, the facts of the case are that, on 23/3/14, the Board of Directors of the Cheranelloor Service Co-operative Bank Ltd., (hereinafter referred to as the Bank for short), convened a special general body meeting of the members of the Bank. In that meeting, the appellant was also present. A resolution was passed in the meeting to amend the bye-laws vide resolution No.4933(5), which, according to the Bank, was to comply with the statutory requirements of Section 28A of the Kerala Co-operative Societies Act (hereinafter referred to as the Act for short). The minutes of the meeting is produced as Ext.P3 in WP(C) No.9156/14, against which WA No.1808/14 is filed.
3. After the resolution was passed, appellant along with another, styling themselves as “Cheranelloor Sahakarana Janathipathya Samrakshana Samithi”, filed Ext.P2 before the Joint Registrar of Co-operative Societies, Ernakulam purportedly under Rule 176 of the Kerala Co-operative Societies Rules (hereinafter referred to as the Rules for short). Thereafter, he filed WP(C) No.9156/14 with a prayer requiring the Joint Registrar to pass orders on Ext.P2 mentioned above and also for a direction to the Registrar not to register the amendment to the bye-laws pursuant to the resolution passed in the meeting held on 23/3/14.
4. During the pendency of the writ petition, by proceedings dated 10/6/14, the Joint Registrar granted registration to the amendment to the Bye laws. Thereupon, producing the proceedings of the Joint Registrar as Ext.P6, WP(C) No.9156/14 was got amended with a prayer to declare that the registration granted was illegal. While so, the Joint Registrar by his proceedings dated 13/6/14, a copy of which is Ext.P7 in WP(C) No.9156/14, closed the proceedings pursuant to Ext.P2.
5. Challenging the proceedings of the Joint Registrar dated 13/6/14, the appellant filed an appeal under Section 83(1) (j) before the Government, which entertained the appeal and passed an order staying the resolution passed in the special general body meeting held on 23/3/14. Producing copies of the appeal and the stay order passed by the Government as Exts.P4 and P5, WP(C) No.26410/14 was filed by the Bank, where prayer was sought to quash the stay order passed and also to direct that election be held on the basis of the bye-laws as amended in the special general body meeting held on 23/3/14.
6. While matters stood thus, the Society passed resolution for conducting election on the basis of the unamended bye-laws which was forwarded to the Election Commission. The Election Commission, which was already in receipt of the resolution of the society to conduct election on the basis of the amended bye-laws, chose not to act upon either of the two resolutions. Thereupon, the Bank got WP(C) No.26410/14 amended incorporating a prayer to interfere with the refusal of the Election Commission to conduct election on the basis of the amended bye-laws.
7. At that juncture, WP(C) Nos.27765 and 27493/14 were filed by two other members of the Bank to compel the Election Commission to conduct election based on unamended bye-laws. All these writ petitions were heard together and were disposed of by the common judgment under appeal. By this judgment, WP(C) Nos.26410, 27493 and 27765/14 were allowed and WP(C) No.9156/14 was dismissed. The operative portion of the judgment as contained in para 28, reads as follows:
“28. In the above circumstances, there shall be a direction to the Managing Committee of the respondent- Bank, to immediately take a resolution in consonance with the Act and Rules and fix a polling date and forward such resolution to the Election Commission, through the Assistant Registrar/Joint Registrar concerned. The Assistant Registrar/Joint Registrar concerned, who has to approve and forward it, shall treat such matter with all expediency and transmit the same to the Election Commission without any delay. The Election Commission shall also consider and issue the notification expeditiously on receipt of such resolution. Though the Act and the Rules mandate that such resolution has to be taken and election scheduled before the date of expiry of the term of the Managing Committee, an extra- ordinary situation has come to fore in the above case; which require extra- ordinary measures. This is a fit case in which such powers conferred under Article 226 of the Constitution, can be invoked to direct the out- going Managing Committee to fix a date of polling in compliance with the Act and Rules; but even on a date after expiry of its term. It is also made clear that three members of the outgoing Administrative Committee shall be put in office as the Committee members. The Administrative Committee so appointed would not be entitled to take any policy decisions and shall confine their activity to preparation of electoral rolls and handing it over to the Electoral Officer. This Court takes notice of the submission of the learned Special Government Pleader that proceedings under Section 65 has been taken against the Managing Committee members; but, however, it is of no consequence, since merely on such proceedings being taken, the Managing Committee members cannot be kept away from the administration or from participating in the election.”
It is in this background, these writ appeals are filed.
8. We heard the learned counsel for the appellant, learned counsel appearing for the Bank, the respective petitioners in WP(C) Nos.27765 and 27493/14 and also the learned special Government Pleader.
9. In the background of the facts that we have noticed, the first issue that calls for examination is whether, Ext.P2 in WP (C) No.9156/14 filed by the appellant purportedly under Rule 176 of the Rules, against the closure of which, appeal under Section 83(1)(j) of the Act has been filed, has any substance. The second issue is whether, the finding of the learned single Judge that appeal filed under Section 83(1)(j) of the Act is not maintainable is correct or not.
10. It is true that Rule 176 of the Rules starts with a non obstante clause that notwithstanding anything contained in the bye-laws of a registered society, it shall be competent for the Registrar to rescind any resolution of any meeting of any society or the committee of any society, if it appears to him that such resolution is ultra vires of the objects of the society, or is against the provisions of the Act, Rules, bye-laws or of any direction or instructions issued by the Department or calculated to disturb the peaceful and orderly working of the society or is contrary to the better interest of the society. Though it is true that power conferred on the Registrar is wide and it is also not necessary that the same can be invoked only if the Registrar is moved by a member of a society, in so far as this case is concerned, admittedly, it was only following Ext.P2 filed by the appellant that proceedings under Rule 176 of the Rules were set in motion.
11. We have already referred to the special general body meeting that was held on 23/3/14 which was one convened by the Board of Directors in terms of the provisions contained under Section 30 of the Act. Ext.P4 in WP(C) No.9156/14 is the attendance register of the participants in the special general body meeting. The appellant has affixed his signature at Sl.No.49 of this document. Ext.P3 is the minutes of the meeting. This also records the participation of the appellant and a reading of the minutes shows that the only objection raised by him was that the agenda item which led to the resolution in question was one which could have been transacted only in the annual general body meeting convened under Section 29 of the Act and that the same cannot be transacted in a special general body meeting convened under Section 30. The minutes do not contain anything that any protest or objection was raised by the appellant against the resolution as such. His objection that the item could not have been transacted in the special general body meeting is reiterated in Ext.P2, the petition filed under Rule 176 of the Rules.
12. Section 29 of the Act provides that a general body meeting of a society shall be held within a period of six months of close of the financial year and the purposes of such a meeting are also enumerated in the Section. The amendment of the bye-laws is one of the purpose for which AGM can be convened and it is so provided in Section 29 (1)(cd). In so far as special general body meeting provided under Section 30 is concerned, Clause (1) of this section provides that the committee of a society may “at any time”, call a special general body meeting of the society and shall call such meeting within one month after receipt of a requisition in writing from the Registrar or from such number of members or a proportion of the total number of members, as may be prescribed. Section 30 does not contain anything placing any restriction on the business to be transacted in a special general body meeting. In other words, any business which can be transacted in an annual general meeting can be transacted in a special general meeting also. If that be the scope of Section 30, the objection raised by the appellant, as is evident from Ext.P3 minutes and Ext.P2 petition filed by him under Rule 176 of the Rules, that the agenda item for amendment of the bye-laws could be transacted only in an annual general meeting convened under Section 29, was absolutely without any merit.
13. If that be the substance of the case canvassed in Ext.P2, irrespective of the nature of the order that was passed by the Joint Registrar as per Ext.P7, fact remains that Ext.P2 was totally untenable. Once that conclusion is arrived at, the ultimate order passed by the Joint Registrar closing the proceedings has to be upheld and the appeal filed under Section 83(1)(j) of the Act, which is stated to be pending is also to be held as without any substance.
14. While in this context, we must deal with a factual aspect noticed by us. According to the appellant, he filed Ext.P2 invoking Rule 176, in his capacity as a member of the Bank. However, there is no statement in Ext.P2 that he is a member of the Bank and instead, this petition is filed representing an organization by name Cheranelloor Sahakarana Janathipathya Samrakshana Samithi. Further, while Rule 176 authorises the Registrar to cancel resolutions passed, Ext.P3 discloses that there was no such request. These factual aspects also render Ext.P2 totally untenable in the eye of law.
15. It was argued before us that committee of a society cannot convene a special general body meeting under Section 30 and that therefore, the very meeting that was convened on 23/3/14 was illegal. We are unable to accept this contention. In our view, such a contention militates against the provisions of section 30(1), which reads thus;
“30. Special general body meeting - (1) The committee of a society may at any time, call a special general body meeting of the society and shall call such meeting within one month after receipt of a requisition in writing from the Registrar or from such number of members or a proportion of the total number of members, as may be prescribed.”
Reading of this provision shows that the committee may “at any time”, call a special general body meeting of the society and the latter part of this provision shows that the committee “shall” call such a meeting within one month after receipt of a requisition in writing from the Registrar or from such number of members or a proportion of the total number of members, as may be prescribed.
16. If as contended by the learned counsel for the appellant, for exercising the power to convene a special general body meeting, requisition of the Registrar or members is a condition precedent, the first part of the section providing that the committee of a society may call a special general body meeting “at any time” will be rendered otiose. It is settled that when a statutory provision is interpreted, the Court is bound to give full effect to the words of the statute and cannot ignore or brush side any part thereof either as surplusage or otherwise. If we are to give effect to the entire Section 30, this contention cannot be accepted.
17. Our attention was invited to Rule 36 of the Kerala Co- operative Societies Rules to emphasise that only on requisition, a special general body meeting can be convened. But then, Rule 36 should be read in the light of Section 30 of the Act. If Section 30 is closely read, it can be seen that the prescription provided therein does not qualify the power of the committee to convene the meeting at any time, but only qualifies the meeting that shall be convened on requisition, the requirements of which alone are to be prescribed by the Rules. Therefore, Rule 29 also does not improve the case of the appellant.
18. Even apart from all these, Clause 23 of the bye-laws of the Society enables the members of the Director Board to convene special general body meeting and this provision reads thus;
“23. ത ഴ" പറയ &ന അവസരങള.ല ഴപ ത &യയ ഗങള ക4യ5ണത ണ8.
(i) സഹകരണ വര< അവസ ന.ച & ക".ഞ8 ഒര & മ സത.നക (ഈ യയ ഗഴത വ ര<.ക ഴപ ത&യയ ഗഴമന& പറയഴ)5&ന&.)
(ii) (പസ.ഡണ.ഴ,യയ ഡയറകര യ. രഡ.ഴ/ ഭ4ര.പക അ ഗങള&ഴ5യയ അയപകയ.യ2ല
(iii) അഞ.ല ഒര& ഭ ഗ അ ഗങള &ഴ5യയ അ/8ഴ/ങ.ല 100 അ ഗങള&ഴ5യയ , ഇത.ല ഏത ണ8 ക &റവ8 അ (തയ& അ ഗങള&ഴ5യയ യരഖ മ4/മ യ അയപകയ.യ2ല
(iv) രജ.സ8(5 യറ സഹകരണ വക &).ഴ/ മയ;ഴതങ./ & അധ.ക=ത ഉയ?@ ഗസയന .നഴ)ട സഹകരണ . യങ ആവശ=ഴ)5&യ. ള (i, ii, iii, iv) ഈ വക &)&കള (പക ര ക45&ന ഴപ ത &യയ ഗങള വ.യശ< ല ഴപ ത &യയ ഗങള എന8 പറയഴ)5&ന&.”
19. In so far as the appeal that is filed under Section 83(1) (j) of the Act is concerned, apart from the fact that for the aforesaid reasons, the said appeal is untenable on the terms of the section itself, according to us, even otherwise, this appeal could not have been entertained. According to the appellant, his appeal in substance is against the registration of the amendment to the bye-laws. Even if the appeal is assumed to be one as claimed by the appellant, then also, the provisions of Section 83 (1)(b) stands in the way of the appellant in maintaining such an appeal. We say so for the reason that Section 83(1)(b) provides thus;
“83. Appeals to other authorities (1) An appeal shall lie under this section against,-
(a) xxxxx xxxxxxxxxx
(b) an order of the Registrar made under sub- section (4) and (6) or Sec.12 refusing to register an amendment of the bye-laws of a society.”
20. Reading of the above provision shows that an appeal shall lie under this section only against an order of the Registrar made under Section 12 (4) refusing to register an amendment of the bye-laws of a society. Giving the words of the statute its plain meaning, we have to certainly accept the finding of the learned single Judge that an appeal can be maintained only against an order passed under Section 12 (4) declining registration to the bye-laws of the Society. However, learned counsel for the appellant sought to take refuge under Section 83(1)(j), the residuary provision, which reads thus;
“(j) any order for made by any person exercising all or any of the powers of the Registrar.”
21. Appeal is a statutory remedy and that remedy can be restricted by the conditions that are incorporated by the legislature. It is also settled that there is no inherent right of appeal and even absence of such a right will not render statute unconstitutional. See in this connection Bar Council of India v. Union of India {2012 (3) KLT 557 (SC)}. Bearing in mind these principles, if Section 83(1)(b) and (j) are read together, conclusion is irresistible that, having regard to the statutory provisions, an appeal under Section 83(1)(b) can be maintained only against an order refusing registration and an appeal against an order granting registration cannot be maintained under this sub section. Resort cannot be taken to the residuary provision contained in Section 83(1)(j) because what is specifically excluded by Section 83(1)(b) cannot be got included by taking refuge under the residuary provision. If we accept the contention now raised by the appellant that the appeal is maintainable under Section 83(1)(j), we will be permitting the appellant to have an appellate remedy, which the legislature itself has expressly declined to provide for. Therefore, the appeal filed under Section 83(1)(j) of the Act could not have been maintained.
22. However, learned special Government Pleader and the learned counsel for the appellant unanimously contended that if this be the conclusion, there will not be any remedy available to an aggrieved against an order granting registration. We are unable to accept this contention also. In our view, as rightly held by the learned single Judge, the remedy available is under Section 69 of the Act and the deeming provisions contained in sub section (2) thereof cannot be interpreted to mean that what is provided in Sub section (1) is sought to be deprived of by sub section (2). Therefore, both these conclusions arrived at by the learned single Judge have to be confirmed and we do so.
23. We notice from the judgment of the learned single Judge that it was directed that three members of the outgoing Committee shall be put in office as the Administrative Committee. This direction has been issued with a rider that the Administrative Committee so appointed would not be entitled to take any policy decisions and shall confine their activity to preparation of electoral rolls and handing it over to the Electoral Officer. We are informed that, by order dated 7/11/14, an enquiry under Section 65 of the Act has been ordered. It was subsequent to that order, the aforesaid direction has been issued by the learned single Judge in the judgment dated 25/11/14.
24. Although it is the case of the respondents that the enquiry ordered is an engineered one only to oust them from the committee, we do not want to jump into any such conclusions now. As of now, fact remains that an enquiry under Section 65 of the Act is ordered and the members of the committee are facing allegations. When such an enquiry is under way, we cannot expect the members who are facing the enquiry to discharge the impartial role that is expected of an administrator, whose duty, as pointed out by the Apex Court, is to put the affairs of the society on an even keel. This view has already been taken by this Court in the judgment in WA No.214/14, where in para 8, it was held thus;
“8. In this backdrop, the issue to be considered is whether the learned single Judge was justified in ordering that a committee consisting of three members of the previous committee should be appointed as the administrative committee. The Statute empowers the Registrar to appoint an Administrator or an administrative committee for a society, when he is satisfied that the circumstances specified in section 33 of the Act are existing. The members of the committiee need not even be members of the society. This provision of the Act would show that such appointment is contemplated only in the case of societies, the affairs of which are in doldrums, and the mandate of the Administrator or the committee is to bring the society back on an even keel. In this State where political parties have hijacked the co-operative sector itself, that professed object would be achieved only if the administrator or the committee is able to rise above political and other petty considerations and discharge their duties independently. In so far as the first respondent society is concerned, the situation would be worse if a committee of the elected members who are all having strong political affiliations and who themselves are facing allegations are entrusted with the task that is expected of an independent administrator or a committee. Therefore, in the facts of this case, we are satisfied that the learned Judge ought to have directed that an Administrator should be appointed, instead of a committee as chosen by him.”
In the aforesaid circumstances, we feel that it is only fit and proper that a senior and impartial officer from the department should function as administrator of the society, who shall also ensure that election which is already declared is concluded.
In the light of the above, these appeals are disposed of confirming the judgment of the learned single Judge except to the extent of vacating the direction that three members of the committee will function as Administrative Committee and ordering that an officer of the department will be appointed as the administrator until the process of election is concluded as directed by the learned single Judge.
Rp //True Copy// PA to Judge Sd/-
ANTONY DOMINIC JUDGE Sd/-
ANIL K. NARENDRAN JUDGE