Anthikkad Kolpadavu Padasekhara ... vs Puncha Special Officer
2022 Latest Caselaw 1332 Ker

W.A. No. 1501/2021                 :1:



                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

            THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                    &

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943

                           WA NO. 1501 OF 2021

  JUDGMENT DATED 25.07.2019 IN WP(C) 2708/2019 OF HIGH COURT OF KERALA

APPELLANT/PETITIONER IN W.P.(C) NO. 2708/2019:

            ANTHIKKAD KOLPADAVU PADASEKHARA COMMITTEE,
            (REG.NO. 286/91) P.O. ANTHIKKAD 680 641, REP. BY SECRETARY C.A.
            JOSHY, AGED 54 YEARS, VALAPARAMBIL HOUSE, KANJANI P.O.,
            THRISSUR.

            BY ADV V.M.KRISHNAKUMAR

            SRI. RANJIT THAMPAN (SR.)



RESPONDENTS/RESPONDENTS IN W.P.(C) NO. 2708/2019:

     1      PUNCHA SPECIAL OFFICER,
            PUNCHA SPECIAL OFFICE, CHEMBUKKAVU, THRISSUR 680 020.

     2      REGISTRAR OF SOCIETIES,
            OFFICE OF SOCIETY REGISTRATION, P.O. CHEMBUKAVU, THRISSUR
            680 020.

     3      P.A. SAKKIR HUSSAIN,
            ABDUL RAHMAN PATHIPARAMBATHU VEEDU, P.O., ANTHIKKAD,
            THRISSUR 680 641.

            BY ADVS.
            SHRI.V.TEKCHAND, SENIOR G.P.(B/O)
            R3 BY V.V.SADANANDAN (SREEMOOLANAGARAM)




      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2022, THE

      COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No. 1501/2021                       :2:




                      Dated this the 1st day of February, 2022.

                                         JUDGMENT

S. MANIKUMAR,CJ.

This appeal is filed by the petitioner in W.P.(C) No. 2708 of 2019

challenging the judgment of the learned single Judge dated

25.07.2019, whereby the writ petition was dismissed declining the

following reliefs sought for therein:

1. To issue a writ in the nature of mandamus or any other appropriate writ, order or direction to call for the records relating to the passing of Ext. P6 and quash the same.

2. To issue a writ in the nature of mandamus or any other appropriate writ, order or direction to the 2 nd respondent to complete the registration proceedings of the Anthikkad Kolpadav Committee formed as per Ext. P5 within a time frame.

2. Basic material facts for the disposal of the appeal are as

follows:

Appellant is a society registered under the provisions of the

Travancore Cochin Literary Scientific and Charitable Societies

registration Act, 1955 ('Act, 1955' for short) and is governed by Ext.

P1 Byelaw. The society consists of 2053 members and has control of

an extent of 2020 acres of paddy land. The administrative committee

of the society consists of 41 members. The condition to contest to the

executive committee is that the candidates should own a property in

the kolpadavu (a group of paddy fields) from where they are

representing. The committee consists of President, Vice President,

Secretary, Joint Secretary, Treasurer and Executive Committee

Members, which forms the administrative body of the society. As per

Ext P1 Byelaw, the main objective of the society is the welfare of the

farmers who are members in the society.

3. The issue arose consequent to the 32 nd Annual General Body

meeting scheduled on 14.10.2018 to elect the new executive

committee constituted in accordance with Ext. P2 notice dated

20.09.2018. The Puncha Special Officer, Thrissur-- the first

respondent was invited to witness the General Body as per Ext. P3

invitation dated 09.10.2018. Accordingly, the Annual General Body

elected the executive committee and the administrative committee

members. The third respondent in the appeal namely P.A. Sakkir

Hussain was elected as the President of the society. However, an

allegation came later that the third respondent had no paddy field in

the Kolpadavu . Accordingly, an enquiry was conducted and in it, it

was affirmed that the third respondent did not own paddy field and

hence, the election of the third respondent was against the stipulation

of the Byelaw and he was disqualified to be elected as the

representative of the Kolpadavu.

4. The Secretary of the society thereupon made an affidavit

before the second respondent i.e., the Registrar of the Societies,

Thrissur under the Act 1955, who is the controlling authority under the

said Act, evident from Ext. P4. Thereafter, a General Council meeting

was held on 29.10.2018 and the membership of the third respondent

was cancelled invoking clauses 7 and 8 of Ext. P1 Byelaw and he was

restrained from continuing as the President of the appellant society.

Thereafter, as per Ext. P5 dated 05.11.2018, another executive

committee was constituted with the qualified members.

5. Anyhow, against the decision of the appellant, the third

respondent approached the Puncha Special Officer, the first

respondent, and sought to interfere with the action initiated against

the third respondent, who, in turn, has passed Ext. P6 order dated

26.11.2018 cancelling the Annual General Body Meeting of the society

held on 14.10.2018, and the election of the General Committee and

the executive committee conducted on the said date, and

consequently, directed the committee of the year 2017-2018 to take

requisite steps to elect new committee members of 2018-2019. Other

consequential directions were also issued. It is, thus, challenging the

legality and correctness of Ext. P6, the writ petition was filed.

6. The learned single Judge, after relying upon the provisions of

the Kerala Irrigation and Water Conservation Act, 2003 ('Act, 2003' for

short) and the Kerala Irrigation and Water Conservation Rules, 2005

('Rules, 2005' for short) held that the decision of the Puncha Special

Officer is in accordance with law and therefore, no interference is

warranted to Ext. P6 impugned order passed by the said officer.

7. The paramount contention advanced by the appellant is that

the finding rendered by the learned single Judge that the appellant is a

padasekharam committee in terms of the Rules, 2005 is basically

erroneous, since the appellant is a society constituted as per the

provisions of Act, 1955 to protect the interest of the farmers who are

members of the society and it has no manner of connection in regard

to any committee envisaged under the Act, 2003 and the Rules 2005

thereto. It is also submitted that the appellant is a society guided by

Ext. P1 Byelaw and the election to the office bearers of the appellant

society is to be conducted in accordance with Ext. P1 Byelaw, and the

Puncha Special Officer has absolutely no role in conducting election to

the executive committee of the office bearers of the appellant society.

8. It is also pointed out that the Anthikkad Kolpadavu is not

notified as an area of operation under Section 2(a) of the Act, 2003

and the appellant is not a farmers' association as defined under

Section 2(m) of the Act, 2003 and that the society is not constituted

by any officer or an organisation of local authority, and is not an

association formed by the water users. Other contentions are also

raised.

9. We have heard, learned Senior Counsel Sri. Ranjith Thampan

for the appellant assisted by Adv. V. M. Krishnakumar, Sri.Tekchand,

learned Senior Government Pleader for the official respondents, and

Adv. V. V. Sadanandan for the third respondent, and perused the

pleadings and materials on record.

10. The primary question that emerges for consideration is

whether the Act, 2003 and the Rules thereto have any manner of

control over the appellant society. It is an admitted fact that the

appellant is a society registered under the Act, 1955 and guided by

Ext. P1 Byelaw and the provisions of the Act, 1955. In fact, Act, 1955

is an Act constituted for improving the legal condition of societies,

established for the promotion of literature, science, or the fine arts, or

for the diffusion of useful knowledge or for charitable purposes. The

Act has its own facets and characteristics in order to regulate and

control the societies registered under the said Act, including that of

conducting the General Body, dispute resolution, dissolution etc.

11. Act, 2003 is enacted to consolidate and amend the laws

relating to construction of irrigation works, conservation and

distribution of water for the purpose of irrigation and levy of

betterment contribution and irrigation cess on lands benefited by

irrigation works in the State of Kerala, and to provide for involvement

of farmers in water utilization system, and for matters connected

therewith or incidental thereto. The Act has got various characteristic

features, including regulation of water supply for irrigation, distribution

of water from irrigation works, distribution of water to another State or

Union Territory, procedure on failure to contribute cost, or labour for

work to be done by joint labour, dewatering of Padasekharam etc.

12. Explanation to Section 31 of Act, 2003 dealing with

'execution of works to joint labour' makes it clear that the "committee

of padasekharam" means the committee of the owners of

padasekharam constituted in such manner as may be prescribed; and

"padasekharam" means collection of paddy fields contiguously

situated, whether owned by one or more than one person.

13. The powers and duties of the Collector and Puncha Special

Officer and the officer authorised are prescribed under Section 34,

which specifies that the Collector, the Punja Special Officer or the

officer authorised by the Government under sub-section (1) of section

31 may exercise such powers and perform such duties as may be

prescribed, for the collective benefit of the owners of a

padasekharam.

14. The Act also provides a mechanism for adjudicating the

disputes arising thereunder and also to prefer an appeal from the

orders passed by the Collector, Puncha Special Officer and the

authorised officer. The question remains to be considered is whether

the appellant society is a Committee formed in terms of the Act, 2003

and the Rules, 2005 thereto. There was no case either for the

Government or for the third respondent that the appellant society is a

Committee formed in accordance with the provisions of the Act, 2003

and Rules, 2005.

15. However, the third respondent has preferred an appeal before

the Puncha Special Officer presumably on the basis that in Ext. P1

Byelaw, under three circumstances, the members were granted liberty

to file complaints against the President before the Puncha Special

Officer. Clause 11 of Ext P1 Bye Law is relevant to the context and it

reads thus:

"11. If there is any no confidence against president due to corruption, insanity, and maladministration, general committee by 2/3 majority approach puncha special officer with written document and act according to his direction after convening meeting and remove from the post of President and elect new president with majority of 2/3 majority."

16. In our considered opinion, such a clause was made in the

Byelaw conceding to the jurisdiction of the Puncha Special Officer to

resolve the issues under the circumstances mentioned thereunder.

That does not mean that the Puncha Special Officer is entitled to

exercise his powers under the Act, 2003 or the Rules, 2005 thereto, to

resolve the disputes of any manner that crops up in the appellant

society, since the Committee of the appellant society is not constituted

under the Act 2003 and Rules 2005. In fact, the learned single Judge

has relied upon Rule 15 of the Rules, 2005 to consider the legality and

correctness of Ext. P6 order passed by the Puncha Special Officer.

Rule 15 deals with the constitution of the committee of Padasekharam.

There is no doubt that as per Rule 15, a committee of Padasekaharam

etc. can be constituted as per the prescriptions contained under the

Act, 2003 and the Rules, 2005, but admittedly no such Committee was

ever constituted.

17. As we have pointed out above, the appellant society is

clearly guided by the provisions of the Act, 1955 and therefore, in the

instant case, the Puncha Special Officer did not have any power to

interfere with the General Body Meeting of the appellant society and to

pass Ext. P6 order, dissolving the General Body and directing the

previous committee to conduct election again by constituting the

General Body.

18. Thinking so, we are of the considered opinion that the

judgment of the learned single Judge requires interference.

Accordingly, the impugned judgment of the learned single Judge as

also Ext. P6 order bearing No. D-884/2018 dated 26.11.2018 passed

by the Punja Special Officer, the first respondent, are set aside.

19. Be that as it may, the learned Senior Government Pleader fairly

submitted that the Puncha Special Officer was not right in interfering

with the functioning of the appellant society, since the appellant

Society is guided by Ext. P1 Bye-law constituted as per the provisions

of the Act, 1955, and one not constituted under the Act, 2003 and the

Rules, 2005. But, at the same time, he submitted that steps are being

taken to constitute a padasekharam committee in accordance with the

provisions of the Act, 2003 and the Rules, 2005. Therefore, we make it

clear that this judgment will not stand in the way of the State

Government taking steps to constitute the padasekharam committee

as per the provisions of the Act, 2003 and the Rules, 2005.

Upshot of the discussion is that, the writ appeal is allowed.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv