Kerala High Court
Walayar Milk Producers ... vs The State Of Kerala on 7 October, 2022
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
WP(C) NO. 21721 OF 2020
PETITIONER/S:
1 SELVARAJ A.,
AGED 57 YEARS
S/O. ASHIRVADAM, SILVASREE HOUSE,
CHANDRAPURAM, WALAYAR,
PALAKKAD 678 624.
2 SAKTHIVEL R.,
S/O. RAMASWAMY KOUNDER,
DAM ROAD, WALAYAR,
PALAKKAD 678 624.
3 SIVALINGAM N.,
S/O. NACHIMUTHU KOUNDER, DAM ROAD,
WALAYAR, PALAKKAD 678 624.
4 SUBRAMANIAN. V.,
S/O. VELUSWAMY KOUNDER,
DAM ROAD,
WALAYAR, PALAKKAD 678 624.
5 MANIKANDAN,
S/O. ARUCHAMY, PAMPUMPARA KALAM,
WALAYAR, PALAKKAD 678 624.
6 K. GOPALAKRISHNAN,
S/O. KALIYAPPA KOUNDER,
DAM ROAD,
WALAYAR, PALAKKAD 678 624.
7 MARTIN JOSE,
S/O. PHILIP, CHANDRAPURAM, WALAYAR,
PALAKKAD 678 624.
8 BALASUBRAMANIAN,
S/O. PODARASWAMY KOUNDER, KULIYANKAD,
WALAYAR, PALAKKAD 678 624.
9 KURISU XAVIER,
S/O. AROGYA MARIYADAS, KOVILPALAATHAR (H),
PAMPUMPARA,
WALAYAR, PALAKKAD 678 624.
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
2
10 ANTONY PHILOMIN RAJ,
S/O. AROGYASWAMY CHANDRAPURAM,
WALAYAR, PALAKKAD 678 624.
11 DHARMALINGAM,
S/O. PAZHANI MUTHU KOUNDER, KULIYANKAD,
WALAYAR, PALAKKAD 678 624.
12 CHARLES
S/O. MAHIMAIRAJ, ATTIPATHY,
WALAYAR DAM POST, PALAKKAD 678 624.
BY ADVS.
Sri K.T.THOMAS
SRI.MATHEW B. KURIAN
SRI.NIKHIL BERNY
RESPONDENTS:
1 STATE OF KERALA
REP. BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF
DAIRY DEVELOPMENT, SECRETARIAT, THIRUVANANTHAPURAM
695 001.
2 THE DEPUTY DIRECTOR,
DAIRY DEVELOPMENT DEPARTMENT, CIVIL STATION,
PALAKKAD 678 501.
3 WALAYAR MILK PRODUCERS CO-OP SOCIETY LTD,
NO.P. 100 D, APCOS, CHANDRAPURAM, WALAYAR DAM P.O.
PALAKKAD 678 624, REP. BY ITS SECRETARY.
4 THE MANAGING COMMITTEE,
WALAYAR MILK PRODUCERS CO-OP SOCIETY LTD, NO. P.
100 D, APCOS, CHANDRAPURAM, WALAYAR DAM P.O.
PALAKKAD 678 624, REP. BY ITS PRESIDENT.
5 THE STATION HOSUE OFFICER,
WALAYAR POLICE STATION, WALAYAR, PALAKKAD 678 624.
BY ADVS.
SRI BIMAL K. NATH, SENIOR GOVT.PLEADER
SRI SRI.N.RAGHURAJ
SRI.A.V.RAVI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.06.2022, ALONG WITH WP(C).16452/2021, THE COURT ON
07.10.2022 DELIVERED THE FOLLOWING:
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
WP(C) NO. 16452 OF 2021
PETITIONER:
WALAYAR MILK PRODUCERS CO-OPERATIVE SOCIETY LTD.,
NO. P100 D, APCOS, CHANDRAPURAM, WALAYAR DAM P.O,
PALAKKAD-678 624, REPRESENTED BY ITS SECRETARY.
BY ADVS.SRI N.RAGHURAJ
MS.SAYUJYA
SRI A.V.RAVI
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARATMENT OF DAIRY DEVELOPMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 THE DEPUTY COLLECTOR,
DAIRY DEVELOPMENT DEPARTMENT, CIVIL STATION,
PALAKKAD-678 501.
3 ARUMUGHAN N, S/O. NATARAJ KOUNDER,
PAMPUMPARA, WALAYAR, PALAKKAD 678 624.
*4 RAMESH S, S/O. SUBBAYYAN, DAM ROAD, WALAYAR,
PALAKKAD-678 624 (*EXPIRED)
ADDL.R5 & R6 IMPLEADED:
ADDL R5: INDU RANI,AGED 52 YEARS
W/O.LATE RAMESH, WALAAR DAM P.O.,
PALAKKAD - 678624
ADDL R6: MATHU MITHRA,AGED 22 YEARS
D/O.RAMESH, WALAYAR DAM P.O., PALAKKAD - 678624
(ADDL.R5 & R6 ARE IMPLEADED AS PER ORDER DATED
26.05.2022 IN IA NO.1/2021)
BY ADVS.SRI BIMAL K.NATH, SR.GOVT.PLEADER
SRI MATHEW B. KURIAN
SRI K.T.THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.06.2022, ALONG WITH WP(C).21721/2020, THE COURT ON
07.10.2022 DELIVERED THE FOLLOWING:
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
4
T.R. RAVI, J.
--------------------------------------------
W.P.(C)Nos.21721 of 2020 & 16452 of 2021
--------------------------------------------
Dated this the 7th day of October, 2022
JUDGMENT
The issue involved in both these writ petitions are intrinsically
connected and hence they are being disposed of by this common
judgment.
2. The petitioners in W.P.(C)No.21721 of 2020 are
members of the 3rd respondent Society. The 3rd respondent
Society has preferred W.P.(C)No.16452 of 2021. Parties are
referred to in accordance with their status in W.P.(C)No.21721 of
2020. The 3rd respondent Society is engaged in Dairy Development
and was registered in the year 1991. The area of operation of the
Society is Ward Nos.6 to 9 of Puthussery Panchayat in Palakkad
District. The petitioners submit that the Society is running on
profit for the last more than six years and that there are more
than 400 milk producers. According to the petitioners, the
President of the Society took advantage of the successful
functioning of the Society and involved in committing acts of
misappropriation and diversion of funds, regarding which several
complaints have been preferred. Protesting the above said acts,
six members of the Managing Committee resigned, which resulted
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
in the appointment of an Administrative Committee for a period of
six months. Based on orders issued by this Court in W.P.
(C)No.8983 of 2021, elections were held, and the present
Managing Committee headed by the very same President took
charge. It is submitted that one of the members Sri S.Ramesan
has filed arbitration case under Sections 69 and 70A of the Kerala
Co-operative Societies Act, 1969 (hereinafter referred to as the
Act) before the Co-operative Arbitration Court, seeking to set aside
the election, and the same is pending consideration. The
petitioners submit that the President of the new Managing
Committee started harassing the petitioners and other members
who had worked against him in the elections. The petitioners state
that they were not permitted to supply milk, and, on several
occasions, they had to throw the milk away.
3. The President issued notices to the petitioners and two
other members under Rule 16(3) of the Kerala Co-operative
Societies Rules, 1969 (hereinafter referred to as the Rules)
directing them to show cause why they should not be removed
from the membership of the Society. The reason alleged is that
they had obstructed the functioning of the Society by locking the
gate and assaulting the employees and insisted on the issuance of
receipt in the name of others, in respect of milk supplied by them.
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
Subsequently, a notice dated 07.01.2020 was published stating
that the petitioners and two other members have been removed
from the membership of the Society under Rule 16(3) of the Rules.
W.P.(C)No.1571 of 2020 was preferred by the petitioners and two
other members and by Ext.P3 judgment, this Court directed the
2nd respondent to consider and pass orders on the complaint raised
by the petitioners against the action of the Society, after hearing
the petitioners and the Society. The 2 nd respondent by Ext.P5
order dated 19.3.2020 cancelled the decision dated 04.01.2020 of
the Managing Committee of the Society, expelling the petitioners
and two other members from the membership of the Society. Even
though in Ext.P5 order the decision to remove the petitioners from
the membership had been set aside, the petitioners submit that
they were not permitted to supply milk.
4. While so, two of the members who were also expelled
from membership along with the petitioners, filed W.P.(C)No.9740
of 2020 before this Court challenging the actions of the
respondents. This Court issued an interim order permitting the
petitioners therein to supply milk to the Society in their capacity as
members of the Society. Ext.P6 is the interim order granted. The
3rd respondent also filed W.P.(C)No.10096 of 2020 praying for a
direction to the Government to dispose of the appeal preferred by
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
the Society against Ext.P5 order. W.P.(C)Nos.9740 of 2020 and
10096 of 2020 were heard together and disposed of as per Ext.P7
judgment. This Court directed the Government to dispose of the
appeal and stay petition preferred by the Society and the appeal to
be preferred by the members against certain observations made in
Ext.P5 order. It was also directed that the petitioners in W.P.
(C)No.9740 of 2020 shall be permitted to supply milk pending
consideration of the appeals by the Government. Even though the
petitioners were entitled to similar treatment, they were not
permitted to supply milk, which led to the filing of W.P.
(C)No.21721 of 2020 praying for a direction to respondents 3 and
4 to accept milk from the petitioners in the light of Ext.P5 order.
On 20.10.2020, this Court issued an interim order directing
respondents 3 and 4 to accept milk from the petitioners in their
capacity as members of the Society.
5. While so, the Government considered the appeals filed
by the petitioners in W.P.(C)No.9740 of 2020 and the 3 rd
respondent, and by order dated 12.7.2021, rejected both the
appeals. The order of the Deputy Director rescinding the decision
of the Society was upheld. The order dated 12.7.2021 is
challenged by the Society in W.P.(C)No.16452 of 2021. The order
has been produced as Ext.P10 in the said writ petition.
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
6. Heard Sri K.T. Thomas on behalf of the petitioners,
Sri N.Raghuraj on behalf of the 3rd respondent and Sri Bimal K.Nath,
Senior Government Pleader on behalf of the official respondents.
7. Section 17 of the Act provides that a member who has
acted adversely to the interest of the Society or has failed to
comply with the provisions of the bye-laws, may be expelled by a
resolution of the General Body passed at a special meeting
convened for the purpose, with votes not less than 2/3 rd of the total
number of members present and voting at the meeting. Rule 18 of
the Rules lays down the procedure to be followed for the expulsion
of a member under Section 17 of the Act. Rule 16(3) of the Rules
provides that where an admitted member is seen to have been
ineligible for membership at the time he was admitted as a member
or subsequently becomes ineligible, the Committee of the Society
may remove him from membership after giving him an opportunity
for making his representation. According to the petitioners, Rule
16(3) was invoked in their case, for the purpose of avoiding the
rigour of the procedure contained in Rule 18. The above contention
found favour with the 2nd respondent, who issued Ext.P5 order
on 19.3.2020. In Ext.P5, the 2nd respondent found that
it has been proved that the petitioner acted against the
interests of the Society, but the Committee did not have the
authority to expel the petitioners invoking Rule 16(3) of the Rules.
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
Based on the above finding, the 2 nd respondent cancelled the
decision of the Committee by invoking Rule 176 of the Rules. The
appeal preferred by the 3rd respondent against Ext.P5 order was
rejected by the 1st respondent as per Ext.P10 order dated
12.7.2021 produced in W.P.(C)No.16452 of 2021. The 1 st
respondent found that Rule 16(3) can be invoked only in cases
where a member subsequently becomes ineligible. The eligibility
conditions are laid down in Rule 16(1) and (2). Since action is
taken for acting against the interests of the Society, Section 17
alone applies, which can be invoked only by the General Body of
the Society.
8. The reasoning in the above said orders issued by the 2 nd
and 1st respondents cannot be said to be not in accordance with
law. When specific provisions are set out in the Act, to deal with
different situations regarding the continuance of a person as a
member of Society, action can be taken only in accordance with
the said provisions. The 3rd respondent has no case that the
petitioners had "subsequently become ineligible" to be members.
When the above jurisdictional fact was not available, no action
could have been taken under Rule 16(3).
9. The only ground on which the 3 rd respondent attempts
to lay a challenge to Ext.P10 order produced in W.P.
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
(C)No.16452/2021 is that there is violation of principles of natural
justice. Reliance is placed on the notice of hearing of the appeal
dated 03.04.2021, produced as Ext.P8 in W.P.(C)No.16452/2021.
It is the contention that the reference in the letter is only to the
appeal submitted by the petitioners and not to the appeal
submitted by the 3rd respondent. It is difficult to countenance the
above contention. Reliance is placed by the counsel for the
petitioners, on the decision of the Hon'ble Supreme Court in
Ashok Kumar Sonkar v. Union of India & Ors. [(2007) 4 SCC
54], to submit that on the facts of this case, affording another
opportunity to the 3rd respondent, for the fact there was no
specific mention of the appeal preferred by the 3 rd respondent in
Ext.P8 notice referred above, would only be a futile exercise, since
the action against the petitioners under Rule 16(3) can never be
legally justified. In Ashok Kumar (supra), the Apex Court, while
considering the case of a person whose selection was illegal as he
was ineligible to be considered for appointment, held that the
application of the principles of natural justice is not necessary.
10. The case of the petitioners, on facts, is much better
placed than what is available in Ashok Kumar (supra).
Admittedly, the 3rd respondent was heard on the question of the
correctness of Ext.P5 order by the 1st respondent. Ext.P9 produced
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
in W.P.(C)No.16452 of 2021 is the argument note preferred by the
3rd respondent, before the 1st respondent. It is seen from the
argument note that elaborate submissions are made justifying the
action under Rule 16(3). There is also a specific contention that
"As far as the appeal preferred (wrongly typed as referred) by this
respondent Society is concerned, the Deputy Director has not
mentioned what is the illegality in invoking Rule 16(3) of KCS
Rules 1969". The 3rd respondent cannot be heard to say that there
was violation of the principles of natural justice, since contentions
had been advanced on the appeal preferred by the 3 rd respondent
also at the time of hearing.
11. The contentions raised by the 3rd respondent against
the orders issued by the Deputy Director and the 1 st respondent,
holding that Rule 16(3) cannot be invoked, are not legally
sustainable. On facts, the 3rd respondent was heard on the
challenge to the order of the Deputy Director and no prejudice is
caused by the mere fact that the appeal was not specifically shown
in the reference in Ext.P8 notice produced in W.P.(C)No.16452 of
2021. No prejudice can also be claimed, since the action under
Rule 16(3) was without authority and action ought to have been
under Section 17 of the Act. W.P.(C)No.16452/2021 is hence
dismissed. Since the petitioners are entitled to continue as
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
members of the Society, they are also entitled to supply milk. W.P.
(C)No.21721 of 2020 is hence allowed, directing respondents 3
and 4 to accept milk from the petitioners in their capacity as
members of the Society.
Sd/-
T.R. RAVI
JUDGE
dsn
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
APPENDIX OF WP(C) 21721/2020
PETITIONER EXHIBITS
EXHIBIT P1 THE COPY OF THE OBJECTION DATED
06.01.2020 SUBMITTED BY 1ST PETITIONER.
EXHIBIT P2 THE COPY OF THE NOTICE DATED NIL
PUBLISHED BY THE SOCIETY.
EXHIBIT P3 THE COPY OF THE JUDGMENT DATED 11.02.2020
IN WPC NO. 1571/2020.
EXHIBIT P4 THE COPY OF THE ARGUMENT NOTES FILED BY
PETITIONERS.
EXHIBIT P5 THE COPY OF THE ORDER DATED 19.03.2020
PASSED BY 2ND RESPONDENT.
EXHIBIT P6 THE COPY OF THE INTERIM ORDER DATED
18.05.2002 IN WPC NO. 9740/2020.
EXHIBIT P7 THE COPY OF THE COMMON JUDGMENT DATED
25.05.2020 IN WPC NO. 9740/2020 AND WPC
NO. 10096/2020.
W.P.(C)Nos.21721 of 2020
& 16452 of 2021
APPENDIX OF WP(C) 16452/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE
PRESIDENT OF THE SOCIETY BEFORE THE STATION
HOUSE OFFICER, WALAYAR POLICE STATION ON
01.11.2019.
Exhibit P2 TRUE PHOTOCOPY OF THE COMPLAINT DATED
02.11.2019.
Exhibit P3 TRUE COPY OF THE RESOLUTION (AGENDA NO.5)
DT. 04.01.2021.
Exhibit P4 TRUE PHOTOCOPY OF JUDGMENT DATED 11.02.2020
IN W.P.C NO. 1571 OF 2020.
Exhibit P5 TRUE PHOTOCOPY OF THE ORDER BEARING NO. E
135/2020 DATED 19.03.2020.
Exhibit P6 TRUE PHOTOCOPY OF THE APPEAL DATED
08.05.2020.
Exhibit P6(A) TRUE PHOTOCOPY OF APPLICATION FOR STAY
DATED 08.05.2020.
Exhibit P7 TRUE PHOTOCOPY OF THE COMMON JUDGMENT DATED
25.05.2020 IN W.P.C NO. 10096 OF 2020(J)
AND W.P.(C) NO. 9740 OF 2020(N).
Exhibit P8 TRUE PHOTOCOPY OF THE NOTICE BEARING NO.
D2/62/2020DD DATED 03.04.2021.
Exhibit P9 TRUE PHOTOCOPY OF MEMORANDUM OF ARGUMENT
NOTES TO THE APPEAL FILED BY THE 3RD AND
4TH RESPONDENTS (APPEAL NO. D-/62/2020/DD).
Exhibit P10 TRUE PHOTOCOPY OF THE ORDER BEARING NO.
G.O(RT) NO. 59/2021/DD DATED 12.07.2021.
