Kerala High Court

Kunniyode Ksheera Vyavasaya ... vs State Of Kerala on 1 July, 2022

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
          THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                               &
        THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
   FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                      WA NO. 1193 OF 2015
  AGAINST THE JUDGMENT IN WPC 14721/2014 OF HIGH COURT OF
                            KERALA
APPELLANT/PETITIONER:

           KUNNIYODE KSHEERA VYAVASAYA SAHAKARANA SANGAM LTD
           T-61(D), PAZHAYA UCHAKKADA, KAKKAVILA PO,
           THIRUVANANTHAPURAM- 695 506 REPRESENRTED BY ITS
           PRESIDENT
           BY ADVS.SRI.R.T.PRADEEP & SMT.M.BINDUDAS

RESPONDENTS/RESPONDENTS:

    1      STATE OF KERALA
           REPRESENTED BY SECRETARY TO GOVERNMENT,
           DEPARTMENT OF ANIMAL HUSBANDRY AND DAIRY
           DEVELOPMENT, GOVERNMENT SECRETAIAT,.
           THIRUVANANTHAPURAM -695 001
    2      THE DIRECTOR
           DIRECTORATE OF DIARY DEVELOPMENT, PATTOM,
           THIRUVANANTHAPURAM 695 001
    3      THE DEPUTY DIRECTOR OF DAIRY DEVELOPMENT
           THIRUVANANTHAPURAM - 695 001
    4      H. RAJAN
           THENKARATHALAVILA HOUSE, KAROOD PO,
           THRIVANANTHAPURAM 695 506
           SRI.P.N.MOHANAN, FOR R4

OTHER PRESENT:
          SRI. SAIGI JACOB PALATTY-SR.GP
     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
01.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                                                         (C.R)

 ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
             ==================
               W.A.No. 1193 of 2015
 [Arising out of the impugned judgment dated 04.02.2015 in W.P.(C).No.
                               1472/2014]
                      ==================
                  Dated this the 1st day of July, 2022
                             JUDGMENT

ALEXANDER THOMAS, J.

The subject matter of challenge in this intra-court appeal

instituted under Sec.5(i) of the Kerala High Court Act is the impugned

judgment rendered on 4.2.2015 by the learned Single Judge

dismissing the instant Writ Petition (Civil), W.P.(C).No. 14721/2014.

2. Heard Sri.R.T.Pradeep, learned counsel appearing for the

appellant in the W.A./petitioner in the W.P.(C)., Sri.Saigi Jacob

Palatty, learned Senior Govt. Pleader appearing for official

respondents 1 to 3 in the W.A./respondents 1 to 3 in the W.P.(C) and

Sri.P.N.Mohanan, learned Advocate appearing for contesting

respondent No.4 in the W.A./contesting respondent No.4 in the W.P.(C).

3. The prayers in the instant Writ Petition (Civil) W.P.(C).

14721/2014 are as follows:

"i) Issue a writ of certiorari calling for the records leading upto Ext. P6 and to quash the same.

 WA 1193/2015                            - : 2 :-

     ii)    Issue a writ declaring that there is no application given

in terms of Section 6 read with Rule 3 of the KCS Rules for registering a society and all actions taken for registration of a society invoking the power under Section 101 of the KCS Act is vitiated and bad in law.

iii) Issue a writ declaring that there is no proper exercise of power at any stage and that the power has been exercised improperly for other irrelevant considerations by the authorities vitiating the actions leading upto Ext. P6.

iv) Issue a writ declaring that power under Section 101, when can be exercised, in public interest is absent as is revealed from the records, the proposal contained in Ext. P6 is bad in law.

v) Issue a writ of certiorari calling for the records leading to Ext.

P10 and to quash the same.

vi) Issue a writ declaring that Ext. P10 has been issued ignoring the relevant factors which were available with the authorities and therefore the said notification is bad in law.

vii) Issue such other writ, order or direction this Hon'ble Court may deem fit and proper in the interest of justice and in the circumstances of the case."

4. The proceedings under challenge in the above writ

proceedings is one at Ext.P-10 statutory notification as per SRO

No.732/2014 published in Kerala Gazette dated 25.11.2014, whereby

the competent authority of the State Government has exercised their

powers under Sec.101 of the Kerala Co-operative Societies Act ("KCS

Act") to exempt the proposed Kuzhinjanvila Ksheerolpadaka

Sahakarana Sangham at Thiruvananthapuram District from the

provisions of Sec.7(1)(c) of the KCS Act, so as to enable the WA 1193/2015 - : 3 :-

respondent Director of Diary Development Department, who is the

notified registrar of the diary co-operative societies, to register the

said proposed diary co-operative society within the area of operation

in Ward No.XI of Karode Grama Panchayat in Thiruvananthapuram

District.

5. The learned Single Judge, after hearing both sides, has

held that the materials indicate that the Government has applied their

mind, more particularly with reference to Ext.P-6 recommendation

made by the respondent Director of Dairy Development (notified

registrar), for the abovesaid purpose. Further, the contention of the

petitioner, that the society should have been heard by the respondent

State Government before the issuance of Ext.P-10, was also repelled

on the ground that, for exercise of statutory powers under Sec.101 of

KCS, in the matter of exempting a society from the rigour of KCS Act,

etc., another society need not be heard in that regard and reliance has

been placed on the judgment of this Court in the case in Kunju

Kunju v. State of Kerala & Ors. [1971 KLT 350]. On this

premise, the learned Single Judge has dismissed the above W.P.(C).

It is this verdict of the learned Single Judge in the above writ

proceedings that is under challenge in the instant intra court appeal.

WA 1193/2015 - : 4 :-

6. The appellant/writ petitioner society is Kunniyode

Ksheera Vyavasaya Sahakarana Sangham Ltd., which is registered as

a dairy co-operative society in terms of the provisions contained in

the KCS Act and KCS Rules framed thereunder. Respondents 2 and 3

(Director and Dy. Director of Dairy Development) are the notified

registrars of co-operative societies to deal with such co-operative

societies. The case of the appellant society is that the approved area of

operation of the said society is comprised of 8 wards of Karode Grama

Panchayat including ward No.11. That attempt was made by certain

outsiders, who are not members of the petitioner society, complaining

that there is no milk collection facility in Ward No.XI, offered by the

petitioner society and that therefore they found that there is no

purpose in getting themselves enrolled as members of the petitioner

society and that therefore, a separate co-operative society may be

formed for residents, who reside in Ward No.XI of Karode Grama

Panchayat. The complaint of those objectors was that milk collected

by every member is being measured in the society at least two times a

day without delay, lest it gets spoiled, and without milk collection

centre in Ward No.XI, the purpose will not be served. That be so the

formation of a new co-operative society is really necessary and WA 1193/2015 - : 5 :-

imperative to take care of the interests of the persons, who want to

join a society in the process of milk collection, etc. The brief of the

facts is that the respondent Director of Dairy Development has

recommended the above proposal as per Ext.P-6, which culminated

in Ext.P-10 statutory notification, whereby the competent authority of

the State Government has exercised their discretionary powers under

Sec.101 so as to exempt the new proposed society from the rigour of

Sec.7(1)(c) of the KCS Act, which deals with non-overlapping of the

area of operations of the co-operative societies.

7. The impugned judgment dismissing the W.P.(C). has been

rendered on 4.2.2015. We are now apprised by Sri.P.N.Mohanan,

learned counsel appearing for R-4, that the newly formed society,

mentioned in Ext.P-10, was duly registered on 1.1.2015 and that quite

a few persons, including R-4, have joined in that society as members

and as of now, there are about 110 members in the said new society.

Further that, the policy of the State Government is to promote the

functioning of milk or dairy societies on the "Anand model" pattern

and that one of the policies is that, as far as possible, in each of the

wards, the main requirement would be that there should be

expeditious arrangements for collection of milk and also testing of WA 1193/2015 - : 6 :-

milk and that if there is delay in the process of taking milk to co-

operative societies, which are not proximate, then the milk might get

spoiled, etc.

8. Sri.R.T.Pradeep, learned counsel for the appellant, would

seriously and strongly contest the abovesaid submissions made by

Sri.P.N.Mohanan, learned counsel appearing for R-4. He would also

point out that the materials would clearly indicate that the case of the

respondents in Ext.P-6 is that 42 persons have given a complaint in

that regard and that indisputably, none of the 42 persons was

member of the petitioner society and that therefore their complaint

that they are having difficulties, is exaggerated and made only for the

purpose of forming a new society and further that since two separate

milk collection centres have already been provided by the petitioner

co-operative society in ward No.XI, the very basis of the grievances

projected by the objectors is without any material basis. That, it is

only on the basis of the untenable objection raised by such 42

persons, that the respondent Director and the respondent State

Government have now taken a decision in terms of Ext.P-10 based on

Ext.P-6, to form a new society. Further that, the appellant society has

got 82 members in Ward No.XI and that precise factual instructions WA 1193/2015 - : 7 :-

are not now secured regarding the present total membership and it

could be in the range of 500 members or so.

9. The main contention urged before us by Sri.R.T.Pradeep,

learned counsel appearing for the appellant, is that the official

respondents are likely to take a partisan stand that, after formation of

the new society, covered by Ext.P-10, a person residing in Ward XI of

Karode grama Panchayat can either be a member of the appellant

society or a member of the new society and that such a person cannot

be a member of both or that members of the appellant society, who

are residing in Ward No.XI, may be compelled to take membership in

the new society.

10. After hearing both sides, we are of the view that the

abovesaid apprehension raised by Sri.R.T.Pradeep, learned counsel

appearing for the appellant, may not be without any legal basis. We

say so, as Sec. 7(1)(c) of the KCS Act deals with non overlapping of the

area of operation of co-operative societies. The rigour of the

restriction contained in Sec.7(1)(c), has been relaxed by the

Government, by taking recourse to Sec.101 of the KCS Act, which

deals with the power of exemption, and such power of exemption has

been granted in favour of the new proposed society. A similar WA 1193/2015 - : 8 :-

situation was considered by this Court in W.P.(C).No. 20777/2021, in

which a learned Single Judge of this Court has held that, a perusal of

the Government exemption order therein would show that all what

has been granted thereby is an exemption to the respondent society

therein from the operation of Sec. 7(1)(c) of the KCS Act, which

prohibits overlapping in the area of operation of the societies. Hence,

it has been held in the said judgment that no portion of the area of

operation of the writ petitioner society has been taken away, and that

the consequence of the order of exemption issued by the Government

under Sec. 101, is only that the respondent co-operative society can

also function in the wards mentioned in the exemption order, along

with the writ petitioner society. The said judgment in above W.P.(C)

No.20777/2021 was taken up in appeal, on some other aspects, at the

instance of the petitioner therein and the Division Bench has also

rendered judgment on 21.3.2022 in W.A.No. 123/ 2022 [arising out of

the judgment in W.P.(C).No. 20777/2021]. The Division Bench in

para 2 in the judgment dated 21.3.2022 rendered by the Division

Bench of this Court in W.A.No.123/2022 [arising out of the judgment

in W.P.(C).No. 20777/2021] has noted therein about the legal

position stated by the learned Single Judge in para No.5 of the WA 1193/2015 - : 9 :-

judgment in W.P.(C).No. 20777/2021.

11. We are fully in concurrence with the considered views of the

learned Single Judge in the judgment in W.P.(C).No. 20777/2021 on the

aspects mentioned in para No.5 thereof. Therefore, the inevitable legal

consequence is that, the new society at Ext.P-10 can function within ward

No.XI of Karode Grama Panchayat and so also, the appellant society can

also function within their area of operation including ward No.XI of

Karode Grama Panchayat and that therefore there is no question of any

prejudicial effect of the existence of one society on the other.

12. Sec. 7(1)(c) of the Kerala Co-operative Societies Act, reads as follows:

"Sec. 7.Registration.- (1) If the Registrar is satisfied--

      (a)    .......
                           xxx             xxx           xxx
      (c)    that the area of operation of the proposed society and the area of

operation of another society of similar type do not overlap;

xx xxx xxx he may register the society and its bye-laws within a period of ninety days from the date of receipt of the application."

Sec. 101 of the KCS Act reads as follows:

"Sec.101.Power to exempt societies.- The Government may, if they are satisfied that it is necessary so to do in the public interest, by general or special order for reasons to be recorded, exempt any society or any class of societies from any of the provisions of this Act or direct that such provisions shall apply to such society or class of societies subject to such modifications as may be specified in the order."

In view of the exemption order at Ext.P-10, the rigour of Sec. 7(1)(c)

of the KCS Act will not apply to these societies. Further, we note that WA 1193/2015 - : 10 :-

the impugned Ext.P-10 statutory notification has been issued as early

as on 25.11.2014 and the new co-operative society has been registered

on 1.1.2015. Much time has elapsed by now and from the submissions

of Sri.P.N.Mohanan, learned counsel appearing for R-4 it appears

that there are now about 110 members in the new society. Therefore,

at this point of time, it may not be wise and prudent for us to disturb

the new arrangement permitted by the Government, in terms of

Ext.P-10 issued as early as on 25.11.2014.

13. After hearing both sides, we feel that the conclusions of

the learned Single Judge in the impugned judgment do not require