Kerala High Court
K.Sivadasan Nair vs State Of Kerala on 27 January, 2022
C. R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943
WP(C) NO. 5 OF 2022
PETITIONERS:
1 K.SIVADASAN NAIR,
AGED 72 YEARS
EX-MLA MEMBER, BOARD OF DIRECTORS, KERALA STATE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.T-4017,
AGRICULTURAL DEVELOPMENT BANK BUILDING, STATUE JUNCTION,
THIRUVANANTHAPURAM-695 001.
2 ADV.C.K.SHAJI MOHAN
MEMBER, BOARD OF DIRECTORS, KERALA STATE CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.T-4017,
AGRICULTURAL DEVELOPMENT BANK BUILDING, STATUE JUNCTION,
THIRUVANANTHAPURAM-695 001.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
NISHA GEORGE
ARUN CHANDRAN
MADONA RAJ
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES
OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, DPI
JUNCTION, THIRUVANANTHAPURAM-695 014.
3 KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT
BANK LTD.NO.T-4017
AGRICULTURAL DEVELOPMENT BANK BUILDING, STATUE JUNCTION,
THIRUVANANTHAPURAM-695 001, REPRESENTED BY THE MANAGING
DIRECTOR.
4 S.SANJAYKUMAR
DELEGATE, KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LTD.NO.T-4017, REPRESENTED PALODE CO-
OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD.,
NO.T.862, PALODE, KARUMANCODE P.O., PACHA,
THIRUVANANTHAPURAM-695 562.
WP(C) NO. 5 OF 2022 -2-
5 R.THILAKAN
DELEGATE, KERALA STATE CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LTD., NO.T-4017, REPRESENTING PEERUMEDU CO-
OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD.,
PEERUMEDU, IDUKKI DISTRICT-685 501.
BY ADVS.
GOVERNMENT PLEADER SRI.P.P.TAJUDHEEN, SPL. GOVT. PLEADER
M.A.ASIF
N.RAGHURAJ
P.RAVINDRAN (SR.)
M.SASINDRAN
SAYUJYA
SREEDHAR RAVINDRAN
SREEHARI INDUKALADHARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C. R.
SATHISH NINAN, J.
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W.P.(C) No.5 of 2022
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Dated this the 27th day of January, 2022
J U D G M E N T
(a) Is there any provision under the Kerala Co-operative
Societies Act (hereinafter referred to as "KCS Act")
enabling a no-confidence motion be moved against the
Managing Committee of a Society?
(b) Is that part of Section 33 of the KCS Act providing for
moving of a no-confidence motion against the Managing
Committee, a dead letter, applying the doctrine of
desuetude?
(c) In the absence of any Rules prescribing the procedure for
moving a motion of no-confidence against a Managing
Committee in terms of Section 33 of the KCS Act, is not the
statutory provision unenforceable/ sterile?
(d) Does the Registrar have the power to summon a Special
General Body under Section 30(3) of the KCS Act for
considering a motion of no-confidence against a
W.P.(C) No.5 of 2022
Managing Committee?
(e) Can the Registrar summon a General Body under Section
33 of the KCS Act without requisition from the prescribed
number of members in terms of Section 30(1)?
(f) Can the delegatee of the Registrar further delegate the
power under Section 30(3) of the KCS Act to summon a
Special General Body Meeting?
"No" is the answer to all the questions and hence
the motion of no-confidence sought to be moved
against the Managing Committee of the Kerala State
Co-operative Agricultural and Rural Development
Bank Ltd. No.T-4017 (hereinafter referred to as
"the Society") is bad in law, is the argument of
Sri.George Poonthottam, the learned Senior Counsel
for the petitioners. The arguments are unfounded,
urges Sri.P.Ravindran, the learned Senior Counsel,
Sri.Raghuraj N., Sri.M.Sasindran and Sri.Asif M.A,
the learned counsel for the party respondents and
W.P.(C) No.5 of 2022
Sri.P.P.Thajudheen the learned Special Government
Pleader.
2. The Society is an Apex Society. Its General
Body consists of 76 members, being representatives/
delegates from primary societies. The petitioners
are two such delegates. They were elected as
members of the Board of Directors of the Society.
3. On 30.10.2021, a non-confidence motion was
moved by two members of the Society against its
Managing Committee. Notice requiring convening of a
General Body to consider the no-confidence motion
was given to the Registrar by 31 members. On
13.12.2021, the Registrar passed an order (Ext.P8)
in terms of Section 30(3) of the KCS Act,
nominating the Additional Registrar (consumer) to
call for a Special General Body, to consider the
no-confidence motion.
4. Pursuant to the above, the additional
Registrar decided to convene a special general body
of the Society at the head office of the Society,
to be held on 06.01.2022 at 11.00 am. As per
W.P.(C) No.5 of 2022
Ext.R2(b) communication dated 14.12.2021, the
Managing Director of the Society was instructed to
send notice regarding the meeting to all the
members. It is at that stage that, on 03.01.2022,
the writ petition has been filed challenging the
consideration of the no-confidence motion on the
grounds first above noted.
5. Before I proceed to deliberate upon the
questions posed, it would be appropriate to refer
to the factual background leading up to the present
proceedings.
6. The Annual General Body meeting of the
Society was scheduled to be held on 30.09.2021.
Just three days prior to it, a no-confidence motion
against the Managing Committee was sought to be
included in the agenda as an additional item. On
challenge before this Court by the first petitioner
herein and another member, in WP© 20383/2021, an
interim direction was passed by this Court, to
defer consideration of the no-confidence motion. It
appears that in the General Body meeting held on
W.P.(C) No.5 of 2022
30.09.2021 there was chaos. The budget was not
passed. The president resigned. Observing that
there is administrative stalemate in the Society,
an administrator was appointed. On challenge by the
first petitioner herein and another, in WPC
21049/2021, this Court passed an interim order,
directing the administration of the Society to be
handed over back to the Committee. The president,
who claimed to have resigned, re-assumed office.
7. Thereafter, 16 members of the Managing
Committee (14 elected and two nominated) requested
the Managing Director of the Society to convene a
meeting of the Board of Directors. The first
petitioner herein and another approached this Court
in WPC 23669/2021, seeking a direction for
convening of the meeting. As per order dated
08.11.2021, this Court directed the Registrar to
convene a meeting of the Managing Committee/Board
of Directors of the Society within a period of ten
days. It appears that in compliance with the
direction though a meeting was convened, no
W.P.(C) No.5 of 2022
business was effectively transacted therein. It is
in the meanwhile that, on 30.10.2021, the no-
confidence motion which is the subject matter of
issue in the present writ petition was mooted and
the Registrar was requested to convene a general
body meeting for consideration of the same. On
15.11.2021, one of the members who mooted the
motion approached this Court in WPC 25555/2021
seeking a direction to the Registrar to convene a
general body. Pending consideration of the writ
petition, on 13.12.2021, Ext.P3 order was passed by
the Registrar, authorising the Additional Registrar
to call for a Special General Body meeting of the
Society. Notice of the meeting was issued. It is
thereupon that the present writ petition has been
filed.
8. The learned counsel on either sides referred
to various precedents to canvass their respective
contentions. They are being adverted hereinafter
during the course of the discussions.
W.P.(C) No.5 of 2022
9. Section 33(1) of the KCS Act empowers the
General Body of a Society to pass a no-confidence
motion against the Managing Committee. The relevant
portion of Section 33(1), reads thus:-
"..... where a no-confidence motion is
passed by the general body against the existing
committee....., the Registrar may ......., appoint
one Administrator or Administrative
Committee....."
10. The contention of the petitioners is that,
the above provision has become a "dead letter"
consequent on its non-user; they rely on the
doctrine of Desuetude. Though the provision for a
no-confidence against a Managing Committee was
brought in the statute book as early as in the year
1971, there has not even been a single instance
where it has been applied; therefore, on the
doctrine of Desuetude, the provision has to be held
as "lifeless", contends the learned senior counsel.
W.P.(C) No.5 of 2022
11. Authorities explaining the doctrine of
desuetude are umpteen. For the doctrine to apply,
two essentials are to be proved (i) non-user for
considerably long period (ii) contrary procedure
being followed in its place [see State of Maharashtra v.
Narayan Shamrao Puranik (1982) 3 SCC 519, Municipal Corpn. For
City of Pune v. Bharat Forge Co. Ltd. (1995) 3 SCC 434, Monnet Ispat
& Energy Ltd. v. Union of India (2012) 11 SCC 1, Davis B. O. and Anr.
v. B.T.Martin and Ors. [2014 KHC 173 = 2014 (2) KLJ 402, Shoba
Ramachandran v. State of Kerala [2017 (1) KLT 217], Basheer v.
Kozhikode Corporation 2021 (4) KLT 82]. Proof of both the
ingredients are integral to establish Desuetude.
The burden of proof to establish the ingredients is
on the person who banks upon the doctrine. The mere
fact that the first limb calls for proof of a
negative, does not relieve him of his burden. A
person cannot be called upon to prove the negative,
is not an absolute rule. In Abrath v. North Eastern Rail
Company (1983) 11 QBD 440, Bown LJ observed as follows:-
W.P.(C) No.5 of 2022
"If the assertion of a negative is an essential part
of the plaintiff's case, the proof of the assertion
still rests upon the plaintiff".
Instances are many where the onus to prove the
negative have been placed on the person who asserts
the same. The one who seeks to take shelter under
the doctrine of desuetude needs to prove and
establish that, though occasions arose, the Rule
was not applied and that a contrary procedure was
adopted. The mere fact that a person is ignorant
about instances of application/user of such rule,
does not satisfy the requirement of proof of "non-
user". In the case at hand, the petitioners have
failed to prove either of the ingredients. At the
same time, the respondents point out that, in the
lis that came up before this Court in Manojkumar K.M.
and Ors. v. Joint Registrar of Co-operative Societies (General), Kannur
and Anr. [2018 (1) KHC 717 (DB), the issue related to a
no-confidence motion that was moved against the
Managing Committee. Therefore, it cannot be held
W.P.(C) No.5 of 2022
that the provision under Section 33 of the KCS Act,
recognising a motion of no-confidence against the
Managing committee of a Society, has become a 'dead
letter' on the application of the doctrine of
Desuetude.
12. The power under Section 33 of the KCS Act
cannot be exercised by the general body in the
absence of a procedure being prescribed by Rules,
is the next contention. It is not in dispute that
no procedure/rules have been prescribed regarding
the mode or manner of moving a no-confidence motion
against a managing committee of the Society. As
pointed out by the learned senior counsel for the
petitioners, the fact that there is no rule or
procedure laid down even though the provision was
incorporated as early as in the year 1971, was
taken note of by the Division Bench in Manojkumar
K.M. and Ors. v. Joint Registrar of Co-operative Societies (General),
Kannur and Anr. (supra). But it is to be noticed that,
the Division Bench in the said judgment had also
W.P.(C) No.5 of 2022
observed thus:-
"In a given case, where the entirety of the
general body is present, even without notice in
that regard, a motion of no-confidence against the
office bearers of any organisation can be validly
moved and passed".
In the said case, notice of the motion for no-
confidence was not given to any of the members.
13. To contend that, in the absence of Rules
laying down the procedure, the power conferred
under Section 33, for moving a no-confidence motion
against the Managing Committee, remains inoperative
and unworkable, the learned Senior Counsel for the
petitioner placed reliance on the answer on a
reference order by a Full Bench of this Court in
S.Lakshmanan, President, Thiruvilwamala Weavers Co-operative Society
Ltd. v. Vellankeri Member of Board of Directors, Thiruvilwamala Weavers
Co-operative Society Ltd. And Ors. [AIR 2002 Ker. 325]. The issue
involved therein related to a motion of no-
confidence against a president of the Co-operative
W.P.(C) No.5 of 2022
Society by the Managing Committee. The question
referred to the Full Bench for its decision was as
follows:-
"whether absence of a specific provision in the
Kerala Co-operative Societies Act, 1969 and the
Rules framed thereunder, will stand in the way of
any motion for loss of confidence relating to
president of a co-operative Society ?"
The Full Bench answered the reference thus:-
"In the absence of a specific provision in the
Kerala Co-operative Societies Act 1969, the Rules
framed thereunder and the bye-laws of a Co-
operative Society, the Managing Committee has
no right to move or consider a motion for loss of
confidence in the president, vice president or
treasurer or any other office bearer of the
managing committee elected in accordance with
Rule 43 of the Rules."
W.P.(C) No.5 of 2022
14. The Full Bench noticed that no power is
vested under the KCS Act or Rules (as it then
existed) or in the bye-laws of the Society enabling
removal of the president etc. by a motion of no-
confidence, and that, an implied power cannot be
read in. The Full Bench agreed with the view
expressed by the Division Bench of the Bombay High
Court in Hindurao Balwant Patil and another v. Krishnarao
parshuram Patil and ors. AIR 1982 Bom. 216 which held,
"..... a right arisen in connection with
election laws is not a common law right. It is a
special right created by the conditions and
manner prescribed by the law concerned, and the
argument of implied power by application of
common law principles has no relevance".
It is subsequent thereto that, Section 28AB and
Rule 43A were brought into the statute book
providing for election and removal of president,
vice president, etc. of the Managing Committee of a
W.P.(C) No.5 of 2022
Society. Incidentally, I would refer to a slightly
different note struck by the Honourable Apex Court
in Vipulbhai M. Chaudhary v. Gujarat Coop. Milk Mktg. Federation
Ltd. [(2015) 8 SCC 1]. Therein, the Apex Court at
paragraph 51 of the judgment held :-
"In case there is no express provision under
the Act or Rules or bye-laws for removal of an
office - bearer, such office-bearer is liable to be
removed in the event of loss of confidence by
following the same procedure by which he was
elected to office".
Be that as it may, it is pertinent to note that,
even in the reference order in Lakshmana's case
(supra), the Full Bench took note of the provision
in Section 33 empowering the General Body of a
Society to move a motion of no-confidence against
the Managing Committee, and the stark absence of
such a provision enabling a motion of no-confidence
by the Committee against the President, vice
president etc. The Full Bench observed thus:-
W.P.(C) No.5 of 2022
"The only contingency under which the
Committee may be removed before the end of its
tenure is indicated in Section 33(1) of the Act.
Section 33(1) of the Act envisages the passing of a
no-confidence motion by the General Body which
results in wholesale removal of the Committee.
Barring this provision there is no other provision by
which an elected individual part of the committee
can be removed."
Suffice to note that, the Full Bench had recognised
the power conferred under the KCS Act on the
General Body of a Society to remove its Managing
committee through a motion of no-confidence.
15. The respondents canvass for the proposition
that, the absence of rules or prescriptions of
procedure is of no consequence when power is
conferred, and especially when, the empowering
Section does not say that the power is to be
exercised "in the manner" or "in the manner which
W.P.(C) No.5 of 2022
may be prescribed". The respondents place reliance
on various judgments of the Apex Court in support.
In Orissa State (Prev. & Contl. Of Poln.) Brd. v. M/s Orient Paper Mills
JT [2003 (3) SC 74], the point presently mooted was
specifically dealt with, in detail. Therein, the
issue related to the exercise of the power
conferred on the State Government under Section 19
of the Air (Prevention and control of Provisions)
Act, 1981 to declare an area within the state as
"air pollution control areas". The section required
the declaration to be made "in such a manner as may
be prescribed". However, no rules/procedure were
prescribed. The question was posed thus, (at para
10):-
"The question for consideration is, as to whether,
as long as the manner is not prescribed under the
Rules for declaration of an area as air pollution
control area, a valid notification under Section 19(1)
of the Act can be published in the official gazette or
not".
W.P.(C) No.5 of 2022
After elaborate discussions, the Apex Court
concluded as follows:-
"..... the power which vests in an authority
would not cease to exist simply for the reason that
the Rules have not been framed or the manner of
exercise of the power has not been prescribed".
"Once the manner is prescribed under the
Rules, undoubtedly the declaration of the area has to
be only in accordance with the manner prescribed,
but absence of rules will not render the Act
inoperative......Non-framing of Rules does not
curtail the power of the state government to declare
any area as air pollution control area by means of a
notification published in the official gazette".
Reference was made by the Apex Court to the
following observations in Surinder Singh v. Central
Government and Ors (1986) 4 SCC 667:-
W.P.(C) No.5 of 2022
"..... Where a statute confers powers on an
authority to do certain acts or exercise power in
respect of certain matters, subject to rules, the
exercise of power conferred by the statute does not
depend on the existence of rules unless the statute
expressly provides for the same. In other words
framing of the rules is not condition precedent to the
exercise of the power expressly and unconditionally
conferred by the statute. The expression "subject to
the rules" only means, in accordance with the rules,
if any. If rules are framed, the powers so conferred
on authority could be exercised in accordance with
these rules. But if no rules are framed there is no
void and the authority is not precluded from
exercising the power conferred by the statute.....".
The same is the law laid down by the Apex Court in
the judgments in The Mysore State Road Transport Corporation v.
Gopinath Gundachar Char [AIR 1968 SC 464] and U.P.S.E.B. v. City
W.P.(C) No.5 of 2022
Board, Mussoorie [(1985) 2 SCC 16].
16. Here, Section 33 of the KCS Act does not
prescribe any procedure for moving a motion of no-
confidence, nor does it provide that the motion is
to be moved in any particular manner "prescribed"
or "as may be prescribed". Therefore, viewed in any
manner, the mere absence of rules laying down the
procedure for moving a no-confidence motion against
the Managing Committee, when ample authority is
conferred by the Act, does not fetter the exercise
of such right. A co-operative society is a
democratic institution, bound to function so, and
to conduct its affairs based on democratic
principles. That is the basis of co-operative
movement. In Usha Bharti v. State of U.P. [2014 (7) SCC 663],
wherein the validity of Section 29 of the UP
(Kshetra Panchayat and Zilla Panchayats) Act, 1961
which provided for removal of 'Adhyaksha' by a no-
confidence motion was considered, the Apex Court,
at para 37 of the judgment observed thus:-
W.P.(C) No.5 of 2022
"In our opinion, the amendment as well as
the main provision in S.28 is in absolute accord
with the vision explicitly enunciated in the
Preamble of the Constitution of India. In fact, the
spirit which led to ultimately encoding the goals of
"WE THE PEOPLE" in the Preamble of the
Constitution of India, permeates all other
provisions of the Constitution of India. The
fundamental aim of the Constitution of India is to
give power to the People. Guiding spirit of the
Constitution is "WE THE PEOPLE OF INDIA".
In India, the People are supreme, through the
Constitution of India, and not the elected
Representatives. Therefore, in our opinion, the
provision for right to recall through the Vote of No
Confidence is in no manner repugnant to any of
the provisions of the Constitution of India."
17. To crown all these, is the provision in
Clause 58(1) of the bye-laws of the Society which
provides :-
"....The following among other matters shall
be dealt with by the General Body:- (1) The
W.P.(C) No.5 of 2022
election of the members of the Board and their
removal".
Therefore, adding teeth to the power conferred
under Section 33 of the KCS Act, the bye-laws of
the Society also provide for removal of the
Managing Committee of the Society by its general
body. The absence of prescription of any procedure
does not stall the operation of the provision.
18. Now adverting to the contention regarding
lack of power of the Registrar to summon a General
Body for considering a no-confidence motion,
Section 29(3) and Section 30(3) of the KCS Act
empower the Registrar to call for a general body
meeting of the Society. Section 29(1) provides for
the matters to be transacted in an annual general
body meeting. Sub-clause (e) of Section 29(1) reads
thus:-
"Consideration of any other matter which may be brought
forward in accordance with the bye-laws".
W.P.(C) No.5 of 2022
In Abdul Rahman v. Cheranellor Service Cooperative Bank Ltd. [2015
(1) KLT SN 86] this court held that, all business that
could be transacted in a General Body meeting can
be transacted in a Special General Body meeting
also. Section 30(3) of the KCS Act and Rule 36(2)
of the KCS Rules gives wide powers to the Registrar
to call for a Special General Body Meeting. The
relevant provisions read thus:-
"30(3)-Notwithstanding anything contained
in sub section (1) or subsection (2) the Registrar
or any person authorised by him in this behalf
may, at any time, call a special general body
meeting of the society in such manner and at such
time and place within the area of its operation as
he may direct and such meeting shall be deemed
to be a meeting called by the committee."
"36(2)- Notwithstanding anything contained
in the bylaws of a society as to the mode of
summoning general meetings and the object, time
W.P.(C) No.5 of 2022
and place of such meetings, the Registrar or any
person authorised by him may at any time
summon any special general body meeting of the
society in such manner and at such time and
place within the area of its operation as he may
direct. He may also direct who should preside
over such meetings and what matters shall be
discussed by the meeting. Such meetings shall
have all the powers of meeting called according
to the provisions of the bylaws of the society
notwithstanding that the meeting does not have
the quorum fixed for a general body meeting
under the bylaws. Such meetings will not be
invalid on the ground of any defect in the issue of
notice, if Registrar is of opinion that business
transacted and the decision taken in the meeting
were in the better interest of the society and
orders that the meeting and its deliberations were
W.P.(C) No.5 of 2022
in order. The orders of the registrar in the matter
shall be final. The expenses for summoning such
meetings shall be borne by the society."
As provided therein the powers conferred thereunder
are, "notwithstanding" the stipulations in the
other provisions. Therefore, it could only be held
that, the Registrar is, under the KCS Act and the
Rules thereunder, vested with powers to call for a
Special General Body to consider a no-confidence
motion against the Managing committee. It is
further to be held that, requisition by a
prescribed number of members etc., as provided in
Section 30(1), does not apply to summoning of a
Special General Body by the Registrar.
19. Now I shall come to the contention that,
Section 30(3) enables the summoning of a General
Body, only by the Registrar or a person authorised
by him, and that Ext.P9 whereunder the Special
General Body is summoned is issued by the Managing
Director who is a delegatee of the person
W.P.(C) No.5 of 2022
authorised by the Registrar, which is without
authority and bad in law. A reading of Ext.P9 shows
that, it is only an intimation/notice regarding a
meeting fixed/summoned by the Additional Registrar
who is the person authorised by the Registrar. The
contents of Ext.P9 are vivid and clear in the said
regard. Ext.P9 acknowledges the summoning of the
Special General Body by the Additional Registrar.
The relevant sentence in Ext.P9 reads thus:-
"Based on the orders of the Registrar of co-
operatives societies dated 13.12.2021, Sri.Jyothi
Prasad R., Additional Registrar (consumer) vide letter
No.RCS/ADDL(con)/1/21 dated 14.12.2021 has
ordered to convene a Special General Body Meeting
as per Section 30(3) of Kerala Co-operative Societies
Act. Accordingly notice is hereby given that a special
general body meeting of the Kerala State Cooperative
Agricultural and Rural Development Bank Ltd. will be
held on ......".
W.P.(C) No.5 of 2022
20. When the meeting has been summoned by the
competent person, the mere fact that notice
intimating the meeting is sent by another does not
invalidate the notice. Therefore, the contention
that the meeting has been summoned by a sub
delegate, does not appeal. Moreover, the fact that
the notice intimating the holding of the meeting is
not under the signature of the authorised person is
not of much significance when the contents of the
notice acknowledges summoning of the meeting by the
authorised person. Here it would be appropriate to
refer to Shackleton on the Law and Practice of
Meetings, 7th Edition, Page 37 wherein it is stated
thus:-
"If a meeting is summoned without
authority, it will be invalid. It is customary for a
notice to indicate clearly on whose authority it is
issued, and for it to be issued over the name of an
authorised official. The first requirement is
fundamental, but the second is more than a
W.P.(C) No.5 of 2022
matter of form and is perhaps not indispensable,
provided the notice is in other respects good."
Therefore, the challenge raised against the
invalidity of the holding of the meeting on the
said ground, lacks merit.
21. The sum total of the above discussions
result in, answering all the questions posed first
above in the affirmative and against the
petitioners. Therefore, the challenge raised in the
writ petition against the convening of Special
General Body, for consideration of the no-
confidence motion moved against the Managing
Committee of the Society, fail.
22. As per interim order dated 05.01.2022, this
Court had permitted the consideration of the no-
confidence motion proposed on 06.01.2022, but had
directed that the motion if passed shall not be
given effect to without orders from the Court. It
appears that the no-confidence motion was passed
with 39 votes favouring the motion and 36 votes
W.P.(C) No.5 of 2022
against. Arguments were advanced by the learned
Senior Counsel for the petitioners raising various
ground of challenge against the resolution/ passing
of no-confidence. Noticeably, there is no such
pleading or relief claimed in the Writ Petition.
The learned Senior Counsel would contend that such
plea or relief are not necessary to be incorporated
in the Writ Petition since those are events which
took place pending the Writ Petition and consequent
on the interim order dated 05.01.2022 passed by
this Court.
23. Here it is to be noted that, the writ
petition, as is filed, challenges the convening of
a Special General Body for considering a motion of
no-confidence, on certain grounds. This Court as
per the interim order permitted the consideration
to go on, but, subject to the Writ Petition. The
mere fact that the motion for no-confidence was
passed pending the writ petition would not stand in
the way of this Court considering the challenge
against the validity of the convening of the
W.P.(C) No.5 of 2022
Special General Body on the grounds as urged in the
writ petition. The subsequent event will not fetter
the powers of the court in considering the
challenge raised in the Writ Petition. If the
challenge against convening of the Special General
Body is upheld by this Court, then the motion of
no-confidence, even though passed by the General
Body, will automatically fall. However, if the
petitioners want/seek to challenge the decision on
the no-confidence motion/resolution, it has to be
done in accordance with law on raising proper
pleadings and grounds, and incorporating a relief
to the said effect. The challenge sought to be made
against the decision on the no-confidence motion/
resolution is a separate relief, based on distinct
and separate grounds. They are required to be
pleaded specifically and proved. Being events that
have occurred pending the Writ Petition it would
have been open for the petitioners to have
incorporated the events, grounds, and reliefs by
amending the writ petition, and sought for
W.P.(C) No.5 of 2022
consideration of the same in the Writ Petition.
However, that has not been resorted to. Without any
pleadings and reliefs sought for in the Writ
Petition, I do not deem it appropriate to entertain
and consider the challenge levelled against the
decision on the no-confidence/resolution passed by
the General Body on 06.01.2022.
24. Resultantly, the Writ Petition fails and is
accordingly, dismissed. Needless to say that the
restraint under the interim order dated 05.01.2022
no longer survives. The right of the petitioners to
challenge the resolution/decision on the motion of
no-confidence is left open.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
APPENDIX OF WP(C) 5/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTICE NO. G1/AGB/61ST/2020-
21 DATED 24.09.2021 ISSUED BY THE 3RD
RESPONDENT WITH ENCLOSURE.
Exhibit P2 TRUE COPY OF THE INTERIM ORDER DATED
29.09.2021 IN WP(C) NO. 20383/2021 PASSED BY
THIS HON'BLE COURT.
Exhibit P3 TRUE COPY OF THE ORDER NO. C.L.T(3)6260/2021
DATED 30.09.2021 PASSED BY THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE REPORT DATED 30.09.2021
SUBMITTED BY THE ADDITIONAL REGISTRAR GENERAL.
Exhibit P5 TRUE COPY OF THE INTERIM ORDER DATED
04.10.2021 IN WP(C) NO.21049/2021 PASSED BY
THIS HON'BLE COURT.
Exhibit P6 TRUE COPY OF THE REQUEST DATED 30.09.2021
SUBMITTED BY THE PETITIONERS AND OTHERS BEFORE
THE 3RD RESPONDENT.
Exhibit P7 TRUE COPY OF THE INTERIM ORDER DATED
08.11.2021 IN WP(C) NO. 23669/2021 PASSED BY
THIS HON'BLE COURT.
Exhibit P8 TRUE COPY OF THE ORDER NO.C.L.T (3)7921/2021
DATED 13.12.2021 ISSUED BY THE 2ND RESPONDENT.
Exhibit P9 TRUE COPY OF THE NOTICE NO. G1/SPL/AGB/2021
DATED 15.12.2021 ISSUED BY THE 3RD RESPONDENT
WITH ENCLOSURE.
RESPONDENT EXHIBITS
Exhibit R2(A) TRUE COPY OF THE NOTICE DATED 30/10/2021
Exhibit R2(B) TRUE COPY OF THE COMMUNICATION/DIRECTION
ISSUED BY THE OFFICER AUTHORISED BY THE 2ND
RESPONDENT DATED 14/12/2021
Exhibit R2(C) TRUE COPY OF THE MINUTES OF THE GENERAL BODY
MEETING
PETITIONER EXHIBITS
Exhibit P10 TRUE COPY OF THE REQUEST SUBMITTED BY THE 1ST
PETITIONER TO THE ADDITIONAL REGISTRAR OF CO-
OPERATIVE SOCIETIES DATED 06/01/2022
RESPONDENT EXHIBITS
Exhibit R4(A) TRUE PHOTOCOPY OF THE NOTICE DATED
30/10/2021.
Exhibit R4(B) TRUE PHOTOCOPY OF THE NO- CONFIDENCE
RESOLUTION DATED 30/10/2021.
RESPONDENT EXHIBITS
Exhibit R4(C) TRUE PHOTOCOPY OF THE MINUTES OF THE SPECIAL
GENERAL BODY MEETING OF THE 3RD RESPONDENT
BANK HELD ON 06/01/2022.
Exhibit R4(D) TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF THE
BYLAWS OF THE 3RD RESPONDENT.
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