Kerala High Court
Kozhikode City Police Employees ... vs Balaji on 31 May, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 31ST DAY OF MAY 2021 / 10TH JYAISHTA, 1943
WA NO. 1601 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 23431/2020 OF HIGH
COURT OF KERALA
APPELLANT/S:
1 THE KOZHIKODE CITY POLICE EMPLOYEES
CO-OPERATIVE SOCIETY LTD.NO. F 963,
PAVAMANI ROAD, KOZHIKODE. REPRESENTED BY ITS
HONORARY SECRETARY.
BY ADV SRI.M.SASINDRAN
RESPONDENT/S:
1 THE STATE CO-OPERATIVE ELECTION COMMISSION,
THIRUVANANTHAPURAM, 3RD FLOOR, CO-BANK TOWERS,
PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-
695033, REPRESENTED BY ITS SECRETARY.
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(G),,
KOZHIKODE, OFFICE OF THE JOINT REGISTRAR OF CO-
OPERATIVE SOCIETIES, PUTHIYARA, KOZHIKODE-
673004.
3 THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (G),
KOZHIKODE, OFFICE OF THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES, PUTHIYARA, KOZHIKODE-
673004.
BY ADV P.C.SASIDHARAN
-2-
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.05.2021, ALONG WITH WA.114/2021, 320/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-3-
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 31ST DAY OF MAY 2021 / 10TH JYAISHTA, 1943
WA NO. 114 OF 2021
AGAINST THE ORDER/JUDGMENT IN WP(C) 515/2021 OF HIGH
COURT OF KERALA
APPELLANT/S:
SARATH BABU,AGED 45 YEARS
0
M NO.6177, KOZHIKODE CITY POLICE EMPLOYEES CO-
OPERATIVE SOCIETY LTD. NO.F 963, PAVAMANI ROAD,
KOZHIKODE S/O.SEKHARAN NAIR, RESIDING AT
KOZHIPLAKKAL, MANASSERY, MUKKOM, KOZHIKODE
BY ADVS.
P.P.JACOB
SRI.GEORGE POONTHOTTAM (SR.)
RESPONDENT/S:
1 KOZHIKODE CITY POLICE EMPLOYEES CO-OPERATIVE
SOCIETY LTD. NO.F 963,
PAVAMANI ROAD, KOZHIKODE 673 001, REP.BY ITS
HONORARY SECRETARY
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(G)
KOZHIKODE, OFFICE OF THE JOINT REGISTRAR OF CO-
OPERATIVE SOCIETIES, PUTHIYARA, KOZHIKODE 673
004
-4-
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
3 THE ADMINISTRATIVE COMMITTEE
KOZHIKODE CITY POLICE EMPLOYEES CO-OPERATIVE
SOCIETY LTD. NO.F 963, PAVAMANI ROAD, KOZHIKODE
673 001, REP.BY ITS CONVENER
4 THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (G)
KOZHIKODE, OFFICE OF THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES, PUTHIYARA, KOZHIKODE
673 004
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2021,
ALONG WITH WA.1601/2020 AND CONNECTED CASES, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
-5-
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 31ST DAY OF MAY 2021 / 10TH JYAISHTA, 1943
WA NO. 320 OF 2021
AGAINST THE ORDER/JUDGMENT IN WP(C) 23431/2020 OF HIGH
COURT OF KERALA
APPELLANT/S:
SARATH BABU,AGED 45 YEARS
0
S/O. SEKHARAN NAIR, RESIDING A T KOZHIPLAKKAL,
MANASSERY, MUKKOM, KOZHIKODE, M.NO. 6177,
KOZHIKODE CITY POLICE EMPLOYEES C-OPERATIVE
SOCIETY LIMITED NO. F 963, PAVAMANI ROAD,
KOZHIKODE.
BY ADVS.
P.P.JACOB
SRI.GEORGE POONTHOTTAM (SR.)
RESPONDENT/S:
1 THE KOZHIKODE CITY POLICE EMPLOYEES CO-OPERATIVE
SOCIETY LTD.NO.F 963
PAVAMANI ROAD, KOZHIKODE, REPRESENTED BY ITS
HONORARY SECRETARY.
2 THE STATE CO-OPERATIVE ELECTION COMMISSION
THIRUVANANTHAPURAM, 3RD FLOOR, CO-BANK TOWERS,
PALAYAM, VIKAS BHAVAN P.O.THIRUVANANTHAPURAM-695
033,REPRESENTED BY ITS SECRETARY
-6-
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(G)
KOZHIKODE,
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, PUTHIYARA, KOCHIKODE-673 004.
4 THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (G), KOZHIKODE
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, PUTHIYARA, KOCHIKODE-673 004.
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2021,
ALONG WITH WA.1601/2020 AND CONNECTED CASES, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
-7-
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 31ST DAY OF MAY 2021 / 10TH JYAISHTA, 1943
WP(C) NO. 12789 OF 2020
PETITIONER/S:
1 RATHEESH .T
CIVIL POLICE OFFICER, DHQ,
KOZHIKKODE CITY, KOZHIKODE.
2 GEESH RAJ P.,
CIVIL POLICE OFFICER, DHQ, KOZHIKKODE CITY,
KOZHIKODE.
3 VINODAN K.,
SENIOR CIVIL POLICE OFFICER, CITY TRAFFIC
ENFORCEMENT UNIT, KOZHIKKODE.
4 DEEPU P.,
CIVIL POLICE OFFICER, DHQ, KOZHIKKODE CITY,
KOZHIKODE.
5 BINURAJ K.,
CIVIL POLICE OFFICER, CITY TRAFFIC ENFORCEMENT
UNIT, KOZHIKODE.
6 BINEESH V.P.,
CIVIL POLICE OFFICER, DHQ, KOZHIKKODE CITY,
KOZHIKODE.
7 SHIBEESH A.K.,
CIVIL POLICE OFFICER, CITY TRAFFIC ENFORCEMENT
UNIT, KOZHIKODE.
-8-
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
8 LENEESH E.,
CIVIL POLICE OFFICER, ELATHOOR POLICE STATION,
KOZHIKODE.
9 RASHEED C.K.,
CIVIL POLICE OFFICER, DHQ, KOZHIKKODE CITY,
KOZHIKODE.
10 RAMJEESH M.,
CIVIL POLICE OFFICER, CITY TRAFFIC ENFORCEMENT
UNIT, KOZHIKODE.
BY ADV P.C.SASIDHARAN
RESPONDENT/S:
1 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL)
O/O. THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES, KOZHIKKODE-673001.
2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL),
O/O. THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES, KOZHIKKODE-673001.
3 THE KOZHIKODE CITY POLICE EMPLOYEES CO-
OPERATIVE SOCIETY LTD. NO.F.963,
PAVAMANY ROAD, KOZHIKKODE, REPRESENTED BY ITS
SECRETARY, -673004.
4 THE BOARD OF DIRECTORS,
KOZHIKODE CITY POLICE EMPLOYEES CO-OPERATIVE
SOCITY LTD.NO.F.963, PAVAMANY ROAD, KOZHIKKODE,
REPRESENTED BY ITS PRESIDENT, -673004.
-9-
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
BY ADVS.
GOVERNMENT PLEADER
SRI.M.SASINDRAN
P.P.JACOB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.05.2021, ALONG WITH WA.1601/2020 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
-10-
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
MONDAY, THE 31ST DAY OF MAY 2021 / 10TH JYAISHTA, 1943
WP(C) NO. 15278 OF 2020
PETITIONER/S:
KOZHIKODE CITY POLICE EMPLOYEES CO-OPERATIVE
0
SOCIETY LTD.NO.F 963
PAVAMANI ROAD, KOZHIKODE, REPRESENTED BY ITS
HONORARY SECRETARY
BY ADV SRI.M.SASINDRAN
RESPONDENT/S:
1 BALAJI
SENIOR CLERK, DISTRICT POLICE OFFICE,
KOZHIKODE, KOZHIKODE CITY, KOZHIKODE 673 507
2 VINODAN K,
KORATTODI VEEDU, VADAYAM P.O, KOZHIKODE 673 507
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(G) ,
KOZHIKODE, OFFICE OF THE JOINT REGISTRAR OF CO-
OPERATIVE SOCIETIES, PUTHIYARA, KOZHIKODE 673
004.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
31.05.2021, ALONG WITH WA.1601/2020 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
-11-
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
JUDGMENT
Ravikumar, J.
W.A. Nos. 1601 of 2020 and 320 of 2021 are directed against the
judgment dated 17.11.2021 in W.P.(C) No.23431 of 2020 and W.A.
No.114 of 2021 is filed against the judgment in W.P.(C) No.515 of 2021
dated 08.01.2021. The captioned writ petitions are also connected to
the issues involved in the appeals. In view of the intersic connection
in the issues involved in the above matters they were heard jointly
and they are being disposed by this common judgment. Hereafter in
this judgment documents are referred to in the manner they are set
forth in W.P.(C) No.515 of 2021 as most of the relevant documents are
produced therein.
2. The appellant in W.A. No.114 of 2021 was the petitioner in
W.P.(C) No.515 of 2021 and he was the honorary Secretary of the
previous Managing Committee of the first respondent, the Kozhikode
City Police Employees Co-operative society Ltd. No. F.963 (hereinafter
referred to as "the Society" only). The Committee in which he was the
honorary Secretary had assumed charge on 06.07.2015 for a period of
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
5 years, but its term got extended by six more months owing to the
general extension of the term of Managing Committees of Co-
operative Societies by six months taking note of the Covid-19
pandemic situation. The said extended term expired on 02.01.2021.
Prior to the expiry of the term, as per resolution No.9 dated
07.10.2020 its Managing Committee decided to conduct election to
new Managing Committee on 11.12.2020. The said resolution was
forwarded to respondents 2 and 4 herein viz., respectively the Joint
Registrar and Assistant Registrar, of Co-operative Societies (G),
Kozhikode. It was withheld though it was to be forwarded, in
accordance with the statutory mandate, to Kerala State Co-operative
Election Commission and that led to the filing of W.P.(C) No.23431 of
2020. The said writ petition was closed as per Ext.P5 judgment dated
17.11.2020 holding that in view of the pendency of W.P.(C) No.15278
of 2020 filed challenging the direction issued by the Joint Registrar to
'the Society' on 16.03.2020 as relates grant of 'A' class membership,
election could not be held. The Managing Committee of the Society
passed a fresh resolution before expiry of its term and then filed W.A
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
No.1601 of 2020 producing the said resolution fixing the date of
election as 06.02.2021 as Annexure-1. In the said writ appeal this
Court as per Ext.P7 issued direction to forward Annexure-1 to the
State Co-operative Election Commission, making it clear that the said
action and also consequential notifications, if any, would be subject to
the result of the appeal and the appeal was ordered to be posted
along with connected cases. Alleging that Annexure-1 resolution was
forwarded with an endorsement 'not recommended' by the Joint
Registrar and Assistant Registrar, of Co-operative Societies,
Kozhikode to ensure non-issuance of election notification by the State
Co-operative Election Commission and also pointing out the
consequential non-issuance of election notification, C.O.(C) No.38 of
2021 is filed for willful disobedience with the directions in Ext.P7.
Earlier, W.P.(C) No.28176 of 2020 was filed by the appellant in W.A.
No.114 of 2021 praying for a direction to the Joint Registrar of Co-
operative Societies, Kozhikode to appoint an Administrative
Committee with City Police Commissioner and two members of the
previous committee the term of which had expired on 02.01.2021. The
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
said writ petition was disposed of as per Ext.P12 judgment with
direction to consider the proposal of the appellant to appoint
Administrative Committee with the City Police Commissioner and two
other members if there are no other legal impediments. As per
Ext.P14 order the Joint Registrar appointed an Administrative
Committee of three members. Out of the three members two are only
ordinary members of the Society.
3. It is challenging Ext.P14 order that W.P.(C) No.515 of 2021
was filed contending that appointment of two ordinary members of
Society as members of the Administrative Committee instead of two
members of the previous Committee is contrary to the observation in
the form of direction contained in Ext.P12 judgment. As per the
impugned judgment, the writ petition was disposed of holding that
there was no direction in Ext.P12 judgment regarding the persons
who ought to be the members of the Administrative Committee and
also observing that Ext.P14 seems to have been passed strictly in
accordance with the spirit of Ext.P12 judgment. It is feeling aggrieved
by the said judgment that the above writ appeal has been filed.
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
4. W.A. No. 320 of 2021 is also filed against judgment dated
17.11.2020 in W.P.(C) No.23431 of 2020. The appellant therein is a
third party to W.P.(C) No.23431 of 2020 and he filed the appeal with
leave of this Court. The appellant is a member of 'the Society' and in
fact, in his then capacity as honorary Secretary of 'the Society' it was
he who signed and presented W.A.No.1601 of 2020. It is contended
that the administrative committee which was appointed as per
Ext.P14 order in W.P.(C) No.515 of 2021, with a view to delay conduct
of election took a decision to withdraw W.A. No.1601 of 2020 to
deliberately defeat the valid orders of this Court. In short, the
appellant's attempt is to ensure early election to the Managing
Committee of the Society.
5. As noticed earlier, W.P.(C) No.15278 of 2020 has been filed
by 'the Society' challenging the direction issued by the Joint Registrar
of Co-operative Societies to it as per Ext.P8 dated 16.03.2020 therein,
as relates grant of 'A' class membership, in 'the Society'. The
contention of the Society is that Ext.P8 order was passed without
jurisdiction and authority. Further, it is contended that the Board of
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
Directors had considered all applications submitted for membership
separately and issued proceedings separately to all persons and that
the said proceedings are appellable before the Government. In short,
the Joint Registrar has no jurisdiction or authority to issue Ext.P8
order. It is also the contention of the Society that the impugned
Ext.P8 order was passed by the Joint Registrar on misconception of
his power under Section 16 of the Kerala C-operative Societies Act
(for short 'KCS Act' only). The said provision, according to the
petitioner-Society, would cloth the Joint Registrar with jurisdiction to
entertain an application only if the Co-operative Society concerned
failed to take any action within two months from the date of receipt
of application for membership in a Co-operative Society. In the case
on hand, the applications were considered by the petitioner-Society
and thereby complied with the stipulations contained in Sections
16(2) and (3) of the KCS Act, it is contended.
6. W.P.(C) No.12789 of 2020 is filed by certain police
personnel working in various posts within the jurisdiction of
Kozhikode City Police Commissionerate who feel aggrieved by the
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
rejection of their application for 'A' class membership in the Society.
They seek the following reliefs:-
"(i) To issue a writ of mandamus or other appropriate
writ, order or direction commanding and compelling
the 1st respondent to determine the eligibility of persons
to be A class member of the 3 rd respondent society and
direct the society to grant A class membership to the
petitioners.
(ii) To declare that the petitioners and similarly
placed persons are eligible and entitled to get A Class
Membership under the 3rd respondent and the denial of
membership on the face of it is arbitrary and illegal.
(iii) to declare that the action of the respondents to
refuse membership to the petitioners is unsustainable
and illegal."
7. The captioned writ appeal and the writ petitions carry
issues intrinsically intertwined and interrelated, as is obvious from
the aforenarration of their factual matrices. Earlier, the writ petitions
were ordered to be posted together and during the course of hearing
of the captioned appeal along with other connected appeal viz., W.A
Nos.1601 of 2020, 320 of 2021 and C.O.(C) No.38 of 2021 were also
called and posted along with the said matters for common disposal.
8. Obviously, W.A No.1601 of 2020 was filed by the then
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
Managing Committee of the Society and now the Society is under the
administration of the Committee. I.A No.3 of 2021 is now filed seeking
permission to withdraw the appeal. As already noticed, W.A No.1601
of 2020 is filed against the judgment in W.P.(C) No.23431 of 2020 filed
against the action on the part of the Joint Registrar of Co-operative
Societies (General), Kozhikode in not forwarding the election
resolution passed by the Managing Committee fixing the date of
election as 11.12.2020. Along with the writ appeal, a fresh resolution,
marked as Annexure-1, fixing the date of election as 06.02.2021 was
filed. As per interim order dated 22.12.2020 in W.A No.1601 of 2020
this Court directed to forward Annexure-1 election resolution to the
State Co-operative Election Commission, making it clear that the
election as also consequential notification, if any, would be subject to
the result of the appeal. Cont. case (C) No.38 of 2021 was filed by the
appellant alleging that Annexure-1 resolution was forwarded with the
endorsement "not recommended" to ensure non-issuance of election
notification and thereby willfully disobeyed the directions in the
order dated 22.12.2020. As per a separate order passed in C.O(C) No.38
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
of 2021 today, taking note of the unconditional apology tendered by
the alleged contemnors, who is the Joint Registrar and Assistant
Registrar of Co-operative Societies (General), Kozhikode, further
proceedings in the contempt petition were dropped. Normally, an
application for withdrawal of an appeal by the appellant would be
allowed. However, as a matter of right it cannot be withdrawn. In
view of the facts involved in the cases on hand, we are of the view
that by permitting withdrawal of the writ appeal filed by the
democratically elected managing committee then in power, by the
present administrative committee of the Society, in the
circumstances, cannot be permitted taking note of the purpose of
appeal. It is to be noted that the committee democratically elected
while in power had chosen to challenge the action in not forwarding
the election resolution by the official respondents. While in office,
they passed a fresh resolution and it is the same that was produced as
Annexure-1 in W.A. No.1601 of 2020. It is for forwarding the same that
this Court passed interim order on 22.12.2020. Notices were issued to
the alleged contemnors in C.O.(C) No.38 2021. Upon prima facie finding
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
that by making an endorsement on the resolution "not
recommended" virtually they disabled the State Co-operative Election
Commission to issue election notification. Merely because accepting
their unconditional apology the contempt proceedings were dropped
cannot be a reason to do anything to defeat the purpose of the order
dated 22.12.2020. The administrative committee is appointed only to
manage the day to day affairs of the Society in the absence of
democratically elected committee and as already stated, its main task
and duty is to ensure election to form new managing committee.
Hence, any move, either direct or indirect, to defeat the same cannot
be permitted. We say so because, in Annexure -1 election resolution
passed by the democratically elected managing committee it was
resolved to conduct the election on 06.02.2021. Certainly by lapse of
time it would be impossible to conduct election on 06.02.2021 and
therefore, a fresh resolution has to be passed for conducting the
election and it has to be taken by the administrative committee. The
administrative committee now in administration of the Society
cannot be permitted to defeat the said purpose as also the order
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
dated 22.12.2020, in view of the mandate under Section 33 of the Act
by getting the appeal withdrawn. It is the statutory obligation of the
administrative committee appointed under Section 33 of the KCS Act
to ensure conduct of election to the managing committee at the
earliest. Above all, even if W.A. No.1601 of 2020 is allowed to be
withdrawn the very same challenge raised in the said appeal would
survive for further consideration in the light of W.A. No.320 of 2021.
We are of the view that withdrawal of an appeal cannot be allowed on
the mere asking, without looking into the attendant circumstances.
Thus, taking into account all the aspects, we are of the view that it
would not be appropriate for us to permit withdrawal of W.A. No.
1601 of 2020. In the contextual situation it is relevant to refer to
Section 33(3) of the Act which reads thus:-
"33. Appointment of new committee or administrator
on failure to constitute committee, etc.-
(1) xxxxx xxxx xxxx
(2) xxxxx xxxx xxxx
(3) The administrator or administrative committee shall
arrange for the constitution of a new committee or for
the entering upon office of the new committee as the
case may be."
From the afore-quoted Section 33(3) it is evident that it shall be the
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
obligation and duty of the administrator or administrative
committee, as the case may be to arrange for constitution of a new
committee. In the case on hand, the administrative committee was
appointed on 01.01.2020. We have already taken note of the steps
promptly taken by the previous committee while in office, for the
constitution of a new committee. In the said circumstances, despite
the filing of I.A No.3 of 2021, taking into account all the aforesaid
circumstances, we think appropriate direction for the limited
purpose of passing resolution for conducting fresh election to the
managing committee of the Society, within a time frame, is to be
issued in W.A. No.1601 of 2020.
9. In view of what is stated above, we are of the view that we
need not go into detail with respect to the contentions raised in W.A.
No.114 of 2021 filed challenging judgment dated 08.01.2021 in W.P.(C)
No.515 of 2021, which was filed against Ext.P14 order constituting an
administrative Committee with the City Police Commissioner,
Kozhikode and two ordinary members of the Society. The contention
taken up in the writ petition as also in W.A. No.114 of 2021 is that the
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
said action in constituting administrative committee in the aforesaid
manner is contrary to the direction of this Court in Ext.P12 judgment
passed in W.P.(C) No.28176 of 2020 dated 29.12.2020. As noticed
hereinbefore, as per Ext.P12, though this Court passed the judgment
taking note of the proposal of the petitioner therein, for formation of
an administrative committee with the City Police Commissioner and
two members of the previous managing committee of the Society, the
direction was issued only on the following lines:-
"If there are no other legal impediments
standing in the way, the proposal suggested by the
petitioner to appoint the administrative committee
with the City Police Commissioner and two other
members may be considered and a decision shall be
taken at the earliest, at any rate, before the expiry of
the term of the committee, i.e., on 02.01.2021."
10. It is taking note of the said nature of the direction that
the learned Single Judge in the judgment dated 08.01.2021 in W.P.(C)
No.515 of 2020 held: "there is no such direction regarding the
persons, who ought to be the members. It seems that Ext.P14 has
been passed strictly in accordance with the spirit of Ext.P12". Since
we are proposing to issue directions for the purpose of conducting
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
election to the managing committee of the Society taking note of the
fact that though election was scheduled to be held firstly on
11.12.2020 and then as per Annexure -1, on 06.02.2021 it could not be
conducted, and also taking note of the statutory mandate under
Section 33(3) of the KCS Act and also the order dated 22.12.2020
passed in W.A. No.1601 2020, the administrative committee cannot be
permitted to continue for a further long period and steps should be
made to arrange for constitution of a new committee. Therefore, it is
absolutely unnecessary for us and therefore, we are not inclined to
consider the question whether, as contended by the appellant, an
administrative committee should be re-constituted with two
members of the previous managing committee.
11. As noticed earlier, W.P.(C) No.15278 of 2020 is one filed by
the Society challenging the directions issued by the Joint Registrar
viz., Ext.P8 dated 16.03.2020 as relates grant of 'A' class membership
in the Society. We have already taken note of the nature of the
challenge mounted against Ext.P8. The contention is that it is a
creature of misconsumption of the power under Section 16 of the KCS
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
Act. In support of the said contention, it is further contended that
exercise of power under Section 16(2A) is required only in case of
non-compliance with the stipulations contained in Section 16(2) and
(3) of the KCS Act and that in the case on hand, it is the specific case
of the Society that in terms of the statutory mandate the Society had
taken decision on all the applications received for membership within
two months from the date of receipt of such application and
therefore, there is compliance with the stipulations under Sections 16
(2) and (3) of the KCS Act and exercise of power under Section 16(2A)
was absolutely uncalled for in the said circumstances. It is contended
that when decision has been taken on an application for membership
in the Society, the remedy of the party aggrieved by the decision on
the application is to approach the Government. Clause (b) of sub-
section (2B) in Section 16 of the KSC Act provides a remedy before the
Government against the disuse of power by the Registrar under sub-
section (2A) of Section 33. We find no reason for not upholding the
aforesaid contention. Since verification of factual aspects involves in
the matter of consideration of grievance against such disuse or
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
misuse or inappropriate use of the power it would be only be
appropriate to decline jurisdiction at this stage and relegate the
parties to approach the Government against grievance regarding
decision on the application for membership. We may hasten to add
that 'enrollment as members' and 'election' are distinctly different
aspects and hence, grievance in the former shall not be a reason, in
the circumstances obtained in this case, not to hold election to the
Managing Committee of the Society. If, either of the two election
resolutions passed earlier was acted upon, election would have taken
place much earlier in 'the Society'. We may hasten to note at this
juncture that the learned counsel appearing for the appellant made a
submission that the writ petition may be permitted to be withdrawn.
No withdrawal memo has been filed in the writ petition. As stated in
the case of W.A. No.1601 of 2020, we are of the view, especially in the
light of non filing of a withdrawal memo as also in view of the non
existence of a power to review the orders already passed by the
managing committee on applications filed for membership, the
matter shall not be left to the administrative committee to decide and
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
the aggrieved party shall be given liberty only to approach the
Government, in view of the factual scenario obtained in these cases.
In short, in that view of the matter, the question regarding the
legality or propriety of issuance of Ext.P8 order dated 16.03.2020 need
not be gone into in detail by us and it is only appropriate to leave
liberty to the individual applicants to take up the matter in
accordance with law, in case they are aggrieved by the decisions on
their applications for membership appropriately in terms of the
statutory provisions. In the said circumstances, we are also of the
view that the 1st respondent cannot be compelled by way of issuance
of mandamus as sought for in W.P.(C) No.12789 of 2020 to determine
the eligibility of persons to be 'A' class member of the Society and
further to direct the Society to grant 'A' class membership to the
petitioners in this proceedings. For the same reason, the declaration
sought for by the petitioners that they and similarly placed persons
to be eligible and entitled to get 'A' class membership in the Society
and also for declaring denial of membership as arbitrary and illegal
also cannot be considered, now. If those persons, who have
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
specifically applied for 'A' class membership in the Society was
granted only 'D' class membership or denied membership as sought
for and the order is adverse to them insofar as admission to 'A' class
membership is concerned, it is for them to take up the matter before
the Registrar/Government appropriately in accordance with the
statutory provisions. In view of the definite stand of the Society in
W.P.(C) No.15278 of 2019 that in all the applications submitted for
membership to the Society, decisions have already been taken and
the remedy available to persons feeling aggrieved by the orders on
their applications for membership is to prefer appeal in accordance
with law, we are of the view that a decision in the aforesaid matter is
not to be taken at this stage in exercise of the power under Article
226 of the Constitution of India. According to us, such matters, taking
note of the factual position and also taking into account the relevant
provisions in the by-law is to be taken at the first instance by the
competent authorities. If a declaration as sought for by the
petitioners in W.P.(C) No.12789 of 2020 is issued, then it will be a farce
to issue writ of mandamus commanding the Joint Registrar to
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
determine the eligibility of the applicants for 'A' class membership in
the Society.
12. In the light of what is stated above, the appeals and the
writ petitions are ordered thus:-
W.A. No.1601 of 2020:- The appellant, viz., the
administrative committee, which is under an obligation
coupled with duty to arrange for constitution of new
managing committee, shall pass resolution fixing the date
(which shall be not later than 90 days from today), time
and place to conduct election to the managing committee
of 'the Society' as one in continuance of the earlier
election resolution passed by the previous committee
fixing the date of election. The said resolution in terms of
Section 35(A)(1) shall be passed by the administrative
committee within a period of two weeks from today or
from the date of receipt of a copy of this judgment,
whichever is earlier. The resolution shall be forwarded to
the Joint Registrar/Assistant Registrar concerned within
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
a week so as to enable the Joint Registrar/Assistant
Registrar, as the case may be, to forward it to the State
Co-operative Election Commission. Upon its receipt, the
State Co-operative Election Commission shall take
appropriate steps in accordance with the provisions
under Section 35 (A), expeditiously, at any rate within a
period not later than two weeks from the date of receipt
of such a resolution for the conduct of election to 'the
Society'.
W.A. Nos.114 of 2021 and 320 of 2021:- In the light of
the nature of disposal of W.A. No.1601 of 2020, we find no
need or reason for passing any further orders in the
above appeals and accordingly, the same are closed.
W.P.(C) Nos.15278 of 2020 and 12789 of 2020:- In view
of our conclusions and findings hereinbefore, Ext.P8
order dated 16.03.2020 carrying directions as relates
grant of 'A' class membership in the Society, issued to the
Society stands set aside. Person or persons aggrieved by
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
the decision on the application/applications for
membership, be it rejection or enrollment as 'D' class
members despite application for 'A' class membership
will be at liberty to take up their grievance appropriately
before the Government to enable factual verification if
required for the purpose of considering the grievance.
Needless to say that on receipt of such
appeals/representations carrying grievances shall be
considered by the Government, expeditiously.
Ordered accordingly.
sd/-
C.T.RAVIKUMAR
Judge
sd/-
MURALI PURUSHOTHAMAN
Judge
das
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
APPENDIX OF W.A.No.320/2021
ANNEXURE/EXHIBITS
ANNEXURE I TRUE PHOTOCOPY OF THE RESOLUTION NO. 3
AND 4 ALONG WITH DOCUMENTS PRODUCED
BEFORE THE RESPONDENTS 2 & 3 DATED
26.11.2020.
ANNEXURE II TRUE PHOTOCOPY OF THE ELECTRONIC MAIL
FORWARDED TO SECOND RESPONDENT DATE
27.11.2020.
ANNEXURE III TRUE PHOTOCOPY OF THE ORDER IN W.A.
1601/2020 DATED 22.12.20.
ANNEXURE IV TRUE PHOTOCOPY OF THE JUDGMENT IN WPC
28176/20 DATED 29.12.20.
ANNEXURE V TRUE PHOTOCOPY OF THE ORDER ISSUED BY
THE JOINT REGISTRAR DATED 1.1.2020
ACTUAL DATED 1.1.2021.
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
APPENDIX OF WP(C) 12789/2020
ANNEXURE/EXHIBITS
EXHIBIT P1 TRUE COPIES OF THE APPLICATIONS
SUBMITTED BY THE 1ST PETITIONER DATED
27.2.2020.
EXHIBIT P1(a) TRUE COPIES OF THE APPLICATIONS
SUBMITTED BY THE 2ND PETITIONER DATED
27.2.2020.
EXHIBIT P1(b) TRUE COPIES OF THE APPLICATIONS
SUBMITTED BY THE 3RD PETITIONER DATED
27.2.2020.
EXHIBIT P1(c) TRUE COPIES OF THE APPLICATIONS
SUBMITTED BY THE 4TH PETITIONER DATED
27.2.2020.
EXHIBIT P1(d) TRUE COPIES OF THE APPLICATIONS
SUBMITTED BY THE 5TH PETITIONER DATED
27.2.2020.
EXHIBIT P1(e) TRUE COPIES OF THE APPLICATIONS
SUBMITTED BY THE 6TH PETITIONER DATED
27.2.2020.
EXHIBIT P1(f) TRUE COPIES OF THE APPLICATIONS
SUBMITTED BY THE 7TH PETITIONER DATED
27.2.2020.
EXHIBIT P(g) TRUE COPIES OF THE APPLICATIONS
SUBMITTED BY THE 8TH PETITIONER DATED
27.2.2020.
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
EXHIBIT P(h) TRUE COPIES OF THE APPLICATIONS
SUBMITTED BY THE 9TH PETITIONER DATED
27.2.2020.
EXHIBIT P(i) TRUE COPIES OF THE APPLICATIONS
SUBMITTED BY THE 10TH PETITIONER DATED
27.2.2020.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED
8.3.2020 SUBMITTED BY THE PETITIONERS
TO THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES.
EXHIBIT P3 TRUE COPY OF THE ORDER ISSUED BY THE
JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES DATED 16.3.2020.
EXHIBIT P4 TRUE COPY OF THE COMMUNICATION ISSUED
TO THE 1ST PETITIONER REJECTING THE
APPLICATION FOR MEMBERSHIP DATED
23.3.2020.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION MADE
BY THE 3RD PETITIONER DATED 5.6.2020.
RESPONDENT'S EXHIBITS:
EXHIBIT R3(a) TRUE PHOTOCOPY DECISION TAKEN BY THE
THIRD RESPONDENT DATED 14/07/2020.
EXHIBIT R3(b) TRUE PHOTOCOPY OF THE COMPLAINT FILED
BY ONE GIRISHAN.V.C DATED NIL
EXHIBIT R3(c) TRUE PHOTOCOPY OF THE APPLICATION
SUBMITTED BY VINODAN.K DATED NIL.
EXHIBIT R3(d) TRUE PHOTOCOPY OF THE DECISION TAKEN
BY THE COMMITTEE DATED 10/03/2020.
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
EXHIBIT R3(e) TRUE PHOTOCOPY OF THE ORDER ISSUED TO
THE SECOND RESPONDENT DATED
23/03/2020.
EXHIBIT R3(f) TRUE PHOTOCOPY OF THE NOTICE ISSUED BY
THE THIRD RESPONDENT DATED 01/02/2020.
EXHIBIT R3(g) TRUE PHOTOCOPY OF THE REPLY FILED BY
THE PETITIONER DATED 19/02/2020.
EXHIBIT R3(h) TRUE COPY OF THE RELEVANT EXTRACT OF
THE BYELAWS OF THE SOCIETY ALONG WITH
THE AMENDMENTS
EXHIBIT R3(i) TRUE COPY OF THE LIST OF APPLICANTS
WHO WERE ALREADY HAVING 'D' CLASS
MEMBERSHIP IN THE SOCIETY
EXHIBIT R3(j) TRUE COPY OF THE LIST OF APPLICANTS,
OUT OF THE PERSONS SIGNED IN EXT.P2,
WHO ARE NOT HAVING ANY MEMBERSHIP IN
THE SOCIETY
EXHIBIT R3(k) TRUE COPY OF THE RESOLUTION DATED
24.11.2020 OF THE COMMITTEE OF THE
SOCIETY
EXHIBIT R3(l) TRUE COPY OF THE LIST OF 'D' CLASS
MEMBERS IN THE SOCIETY
EXHIBIT R3(m) TRUE COPY OF THE APPLICATION FOR 'A'
CLASS MEMBERS, AGAINST WHICH 'D' CLASS
MEMBERSHIP DATED 28.02.2020
EXHIBIT R3(n) TRUE COPY OF THE APPLICATION FOR 'A'
CLASS MEMBERS, AGAINST WHICH 'D' CLASS
MEMBERSHIP DATED 04.03.2020
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
EXHIBIT R3(o) TRUE COPY OF THE APPLICATION FOR 'A'
CLASS MEMBERS, AGAINST WHICH 'D' CLASS
MEMBERSHIP DATED 27.02.2020
EXHIBIT R3(p) TRUE COPY OF THE APPLICATION FOR 'A'
CLASS MEMBERS, AGAINST WHICH 'D' CLASS
MEMBERSHIP DATED 27.02.2020
EXHIBIT R3(q) TRUE COPY OF THE APPLICATION FOR 'A'
CLASS MEMBERS, AGAINST WHICH 'D' CLASS
MEMBERSHIP DATED 27.02.2020
EXHIBIT R3(r) TRUE COPY OF THE APPLICATION FOR 'A'
CLASS MEMBERS, AGAINST WHICH 'D' CLASS
MEMBERSHIP DATED 27.02.2020
EXHIBIT R3(s) TRUE COPY OF THE PROFORMA OF THE
APPLICATIONS FOR 'A' CLASS MEMBERSHIP
EXHIBIT R3(t) TRUE COPY OF THE PROFORMA OF THE
APPLICATIONS FOR 'D' CLASS MEMBERSHIP
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
APPENDIX OF WP(C) 15278/2020
ANNEXURE/EXHIBITS
EXHIBIT P1 TRUE PHOTOCOPY OF THE COMPALINT FILED
BY ONE GIRISHAN V.C DATED NIL.
EXHIBIT P2 TRUE PHOTOCOPY OF THE APPLICATION
SUBMITTED BY THE SECOND RESPONDENT
DATED NIL.
EXHIBIT P3 TRUE PHOTOCOPY OF THE DECISION TAKEN
BY THE COMMITTEE DATED 10-03-2020
EXHIBIT P4 TRUE PHOTOCOPY OF THE ORDER ISSUED TO
THE SECOND RESPONDENT DATED 23-3-2020
EXHIBIT P5 TRUE PHOTOCOPY OF THE NOTICE ISSUED BY
THE THIRD RESPONDENT DATED 1-2-2020
EXHIBIT P6 TRUE PHOTOCOPY OF THE REPLY FILED BY
THE PETITIONER DATED 19-2-2020
EXHIBIT P7 TRUE PHOTOCOPY OF THE RESOLUTION
ADOPTED BY THE SOCIETY DATED 23-3-2020
EXHIBIT P8 TRUE PHOTOCOPY OF THE ORDER ISSUED BY
THE THIRD RESPONDENT DATED 16-3-2020
W.A. Nos.1601 of 2020, 114 of 2021, 320 of 2021 and
W.P.(C) Nos.12789 and 15278 of 2020
APPENDIX OF WA 1601/2020
ANNEXURE/EXHIBITS
ANNEXURE I TRUE PHOTOCOPY OF THE RESOLUTION NO. 3
AND 4 ALONG WITH DOCUMENTS PRODUCED BY
RESPONDENTS 1 AND 2 DATED 26/11/2020.
ANNEXURE II TRUE PHOTOCOPY OF THE ELECTRONIC MAIL
FORWARDED TO THE FIRST RESPONDENT
DATED 27/11/2020.
