Kerala High Court

The Ernakulam Regional Co-Operative ... vs The State Co-Operative Election ... on 16 January, 2025

Author: Amit Rawal

Bench: Amit Rawal

                                                        2025:KER:3363

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE AMIT RAWAL

                                    &

              THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR

        THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946

                            WA NO. 90 OF 2025

          AGAINST THE JUDGMENT DATED IN WP(C) NO.617 OF 2025 OF HIGH

                            COURT OF KERALA


APPELLANT/PETITIONER:

             THE ERNAKULAM REGIONAL CO-OPERATIVE MILK PRODUCERS
             UNION LTD. NO.E 150 (D) (MILMA),
             REPRESENTED BY THE MANAGING DIRECTOR,
             HEAD OFFICE PB NO. 2212, EDAPPALLY,
             ERNAKULAM DISTRICT, PIN - 682024

             BY ADVS.
             NISHA GEORGE
             ANSHIN K.K
             KAVYA
             GEORGE POONTHOTTAM (SR.)




RESPONDENTS:

    1        THE STATE CO-OPERATIVE ELECTION COMMISSION
             3RD FLOOR, CO BANK TOWERS,
             VIKAS BHAVAN P.O., THIRUVANANTHAPURAM
             REPRESENTED BY ITS SECRETARY,
             PIN - 695033

    2        THE RETURNING OFFICER/DEPUTY DIRECTOR
             DAIRY DEVELOPMENT DEPARTMENT, KOLLAM' FOR THE
             ELECTION TO THE COMMITTEE OF THE ERNAKULAM REGIONAL
             CO-OPERATIVE MILK PRODUCERS UNION LTD,
             E 150 (D)/EDAPPALLY, KOCHI,
             ERNAKULAM DISTRICT, PIN - 682024
 WA NO. 90 OF 2025

                                  2

                                                      2025:KER:3363

     3     THE DIRECTOR
           DEPARTMENT OF DAIRY DEVELOPMENT,
           DAIRY DIRECTORATE, PATTOM PALACE P.O.,
           THIRUVANANTHAPURAM, PIN - 695004

     4     JOSE PALOCAREN (SOUGHT TO BE IMPLEADED )
           S/O JOHNY, RESIDING AT PALOKKARAN HOUSE,
           MANNUTHY P.O, NEAR ELANJIKKULAM, THRISSUR- 680651,

           PRESIDENT, MANAGING COMMITTEE OF- OLLOOKKARA
           KSHEEROLPADAKA SAHAKARANA SANGHAM LTD NO. R 12 (D),
           APCOS, MANNUTHY P.O, THRISSUR DISTRICT
           (SOUGHT TO BE IMPLEADED ), PIN - 680651


           C.M.NAZAR, SC, STATE CO-OPERATIVE ELECTION COMMISSION
           (SCEC)
           RENJITH THAMPAN (SR.)



      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.01.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA NO. 90 OF 2025

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                                          3




                                 JUDGMENT

AMIT RAWAL, J.

The appellant/petitioner Ernakulam Regional Co-operative Milk

Producers Union Ltd. through its Managing Director had approached the

writ court by assailing Ext.P6, order of the Returning Officer dated

04.01.2024 issued on the basis of Ext.P4 letter dated 02.01.2025 of the

Director, Department of Diary Development of the Co-operative Milk

Producers' Union.

2. The pith and substance of the challenge was that

Section 28(7) of the Kerala Co-operative Societies Act, 1969 [hereinafter

referred to as, 'the Act'] amended with effect from 12.02.2021, for the

purpose of contesting the elections of the Board of Directors envisaged

that, for holding the office of the member of the committee of the Regional

Co-operative Milk Producers' Union is required to satisfy the following two

conditions:

                         a.    The society should be placed in an audit
              classification as A or B.
                         and

b. The supply of milk procured and pooled by the members of the society to the Regional Co-operative Milk Producers' Union subject to the "minimum quantity" as fixed by the committee of the Regional Milk Producers' Union.

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3. It is pertinent to mention here that the Union has its

own bye-laws called 'Ernakulam Regional Co-operative Milk Producers'

Ltd. Bye-laws, amended upto 2013.

4. Clause 13 of the bye-laws deals with the description of

ordinary member and as per 13.1.1, every member is required to supply

commodities procured or pooled by it with the exception of what is

retained for local consumption only to the Union and will not supply or sell

directly to outside agency, whereas, clause 20.0 deals with the

qualifications of the representatives of the ordinary members for

contesting the elections of the Board. Clause 20.1 empowers that, no

President of member-society shall be eligible for election as a Director of

the Board unless and until the Society he represents, as per 20.1.1 fulfilled

all the obligations as mentioned in the Bye-law 13 as on 31 st March of the

preceding year.

5. Clause 13, obligates the ordinary member that every

member shall besides supplying the commodities procured or pooled milk

will follow other directions, which are not relevant for the purpose of

holding the elections. In other words, for being qualified for the post of the

election, is required to comply with the requirement of clause 13.1.1 of the

Bye-laws.

6. In the absence of any statutory provisions before the WA NO. 90 OF 2025

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amendment introduced as pre-amendment, there was no quantity of the

milk prescribed fixing the qualification for holding the election of a

particular society for the purpose of the election of the Union, particularly

fixing the supply of milk of every society. Vide resolution of 24.03.1997,

the then Board of Directors fixed the quantity of the milk to the pooled and

supplied as 200 litres on an average in the previous year.

7. The aforementioned Bye-laws was introduced in the

absence of the statutory provisions but after the amendment, it did not

have any applicability as it was domain of the committee of the Regional

Milk Producers' to fix the quantity.

8. On the basis of the amended provisions of Sub-section

7 of Section 28 of the Kerala Co-Operative Societies Act, Union vide its

resolution dated 26.09.2024 (Ext.P3) fixed the quantity of the milk as an

average of 100 litres to be provided by the member Society representing

the candidate contesting elections to the post of Board of Directors of the

Union.

9. The aforementioned exercise was done on account of

the fact that the State Co-operative Election Commission had caused a

notification dated 26.12.2024 fixing the schedule of the elections for

various districts and the submission of the nomination by 09.01.2025,

scrutiny on 10.1.2025, withdrawal of the nomination on 11.01.2025 and WA NO. 90 OF 2025

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election on 20.01.2025.

10. In fact the aforementioned resolution was passed on

the basis of the communication dated 02.01.2025, Ext.P3 of the Managing

Director, acting as Registrar, calling upon the Union to fix the supply of the

milk for a period of one year prior to 20.11.2024. Realizing that the

Managing Director of the Society had no role to play except that of the

election commission, representation dated 03.01.2025 was submitted to

the Chairman, Ernakulam Regional Co-operative Milk Producers' Union.

11. The petitioner/appellant Union was flabbergasted to

receive Ext.P6 impugned communication issued by the Returning Officer,

dated 04.01.2024, wherein prescribing certain conditions for the purpose

of holding the elections, including the qualification and disqualification,

introduced Clause 6 as a qualification for any of the member of the Union

to contest for the election, until and unless the said member society is

having the supply of 200 litres of milk on an average for the period

01.04.2023 to 31.03.2024 on the basis of the previous Bye-laws dated

24.03.1997 introduced before the introduction of the amendment under

Sub-section 7 of Section 28 of the Kerala Co-operative Societies Act.

12. The aforementioned order was assailed before the

Single Bench by taking various grounds. However, the learned Single

Bench, on analysis of the respective submissions, dismissed the writ

petition by holding that the amendment fixing the minimum quantity as WA NO. 90 OF 2025

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per the resolution dated 26.09.2024 was not in terms of Section 2(u) of the

Act and as well as the requirement of Clause 20.1.1 of the Bye-laws. The

operative part of the judgment reads as under:

"9. Clause 20 of Ext.P1 provides for the qualifications of representatives of the ordinary members for contesting elections to the Managing Committee. Clause 20.1.1 provides that the candidate shall fulfill all obligations as mentioned in Clause 13 of the bye-laws as on 31st March of the preceding year.

10. In this case, the preceding year refers to the year ending on 31.03.2024. The amendment with regard to the minimum quantity of milk was brought out to the bye- laws on 26.09.2024.

11. Section 2(u) of the Act defines a Year and it reads as follows:-

"2(u) "year" means the period commencing on the [first day of April of any year and ending with 31st of March] of the succeeding year or in the case of any registered society or class of registered societies, the accounts of which are made upto any other date with the previous sanction of the Registrar, the year ending with such date."

12. Therefore, Clause 20.1.1 of Ext.P1 read with Section 2(u) of the Act provides that the candidates shall be qualified as per the provisions of the bye-laws as on 31.03.2024. The amendment fixing the minimum quantity criteria came into effect only on 26.09.2024. Therefore, the contention of the petitioner that the prescription of minimum quantity of milk supply to the Union to contest election to the Managing Committee as per Ext.P2 shall be in accordance with the amendment to the bye-laws brought out by resolution dated 26.09.2024 cannot be sustained. I do not find any reason to interfere with Ext.P6 order and accordingly, the writ petition is dismissed."

13. Mr. George Poonthottam, the learned Senior Counsel WA NO. 90 OF 2025

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assisted by Smt.Kavya appearing on behalf of the petitioner/appellant

submitted that the statutory provisions do not envisage imposition of such

condition as it is the prerogative of the milk union to fix the quantity which

was introduced as per the resolution dated 26.09.2024 strictly in

consonance with the amended provisions of Sub-section 7 of Section 28 of

the Act.

14. Prior to the introduction of the amendment under

Section 28, there was no provision under the Statute giving powers to the

committee/union to fix the quantity. It was in that background, resolution

was passed by the Board of Directors in 1997 fixing the quantity. In other

words, the said power of the Board of Directors, no longer existed and it

vested only with the Managing Committee of the Union. Managing

Director, acting like a Registrar, has no role to play in the elections

amongst the Union for the post of the Board of Directors, particularly

when Ext.P2 notification of 26.12.2024 was notified by the Co-operative

Election Commission without fixing any such condition. In other words,

the conditions already fixed cannot be deviated as has been done by

Ext.P6 impugned communication dated 04.01.2024.

15. On the other hand, learned senior counsel

Sri.C.M.Nazar representing the State Election Commission emphatically

relied upon clauses 13.1.1 and 20.1.1 of the bye-laws as relied on by the

Single Bench, much less that the Bye-laws of March 1997, in the absence of WA NO. 90 OF 2025

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any amendment, would continue to prevail de hor of the amendment

caused in Section 28 of the Act. Even otherwise, none of the union suffices

the requirement of supply of milk in any preceding year as prescribed

under Section 2(u) of the Act and urged this Court for dismissal of the writ

appeal by upholding the judgment under challenge.

16. I.A.No.1/2025 has been filed on behalf of one of the

member of the Union for impleadment through Mr.Navneeth, learned

counsel, espousing the cause as attempted to be raised by the Returning

Officer at the behest of the Managing Director of the Society/Registrar.

17. We have heard the learned counsel for the parties and

appraised the paper book. As far as the application for impleadment of the

applicant as additional fourth respondent, we are of the view that, once the

grievance as raised by the petitioner is being defended by the Election

Commission, there would not be any clash of interest or any irreparable

loss would be caused, in case the applicant sought to be impleaded is not

so permitted. In this view of the matter, this Court do not find merit in

allowing the application, particularly when no such effort was made when

the writ petitioner was pending. According, I.A.No.1/2025 is dismissed on

merits.

18. Section 28(7) of the Act reads as follows:-

"(7) Notwithstanding anything contained in this Act or the rules made thereunder or the bye-laws of a Regional WA NO. 90 OF 2025

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Cooperative Milk Producers Union or in any other law, judgment or Decree or Orders of any court or Tribunal, for the time being in force, the President or an Anand Pattern Milk Cooperative Society, which is a member of the Regional Co-operative Milk Producers' Union shall be eligible to contest the elections to the committee of the Regional Co-operative Milk Producers' Union, and hold office as a member of the committee of the Regional Cooperative Milk Producers' Union, only if the Anand Pattern Milk Cooperative Society to which he/she belongs, satisfies the following conditions, namely;-

(a) the society is placed in audit classification A or B, as prescribed, during the last audit conducted;

and

(b) supply of milk procured and pooled by the member society to the Regional Co-operative Milk Producers' Union subject to a minimum quantity as fixed by the committee of the Regional Milk Producers' Union;

Provided that the provisions of this sub section shall not apply to those member societies for a period of two years which are revived after long duration of inactivity and those Primary Dairy Co-operative Societies whose bye-laws were amended to Anand Pattern, either from the date of restart of the society or from the date of registration of amendment of byelaws to Anand Pattern model bye-laws."

19. On perusal of the aforementioned Sub-section 7, it is

the prerogative of the committee of the Union to fix the quantity of the

milk supplied for the purpose of fixing the qualification and contesting the

elections for the Board of Directors in pursuance of the notification caused

by the Co-operative Election Commission Ext.P2, dated 26.12.2024. WA NO. 90 OF 2025

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Ext.P2 notification did not contain any condition, except introduced

condition No.6 in Ext.P6 impugned communication dated 04.01.2024,

giving cause to the affected parties to lay challenge.

20. The Bye-laws of the Society, as in vogue, did not also

prescribe any limit for supply of milk for qualifying a person to contest for

the election as there was no such provisions in the unamended provisions

of Section 28 of the Act. Keeping in view that fact, vide amendment caused

in March 1997, fixed the supply of milk as 200 litres in a year. Till such

time, there was no such quarrel or any dispute vis-a-vis the qualification

for contesting election of the Board of Directors. The Societies Act

underwent a change by amendment as noticed above, whereby Sub-section

7 of Section 28 was introduced. The Managing Committee of the Union

vide resolution dated 26.09.2024, strictly as per the provisions of Sub-

section 7 of Section 28 of the Act, fixed the quantity of milk as 100 litres.

The translated version of the resolution reads as under:

As per Section 28(7)(b) of the Kerala Co-operative Societies Act, in order to contest on behalf of the member societies, the average daily quantity of milk to be procured and pooled by the member societies to the union, it is for the managing committee of the regional union to take a decision as per the Kerala Co-operative Societies Act and the bye-laws of the union. Accordingly, in order to decide on the same, average the quantity of milk given by the member societies to the union from 1st September, 2023 WA NO. 90 OF 2025

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to 31st August, 2024 is provided herein below.

Total number of member societies that provide 864 milk Number of member societies that provide milk 698 above 50 L Number of member societies that provide milk 533 above 100 L Number of member societies that provide milk 437 above 150 L Number of member societies that provide milk 344 above 200 L

As per the calculation, the number of member societies that provide more than 200 Litres of milk is less than 40 percent. The managing committee has evaluated that the 62 percent of the societies are providing milk to the regional union on an average about 100 Litres to 150 Litres. On 24th March, 1997, it has been decided that the member society representing the candidate contesting election to the board of directors of the regional union is to provide 200 Litres of milk. The board of directors have decided that owing to the crisis faced in the diary sector, it would be advisable to fix the quantity of milk provided by the member society representing the candidate to the union as an average of 100 litres. However, Shri. Shalini Gopinath, a government nominee has submitted a dissenting note on the same. A dissent was expressed with respect to the agenda nos. 5,19 of the decision dated 01.11.2021 of the board of directors. Thereafter, in the letter of the Diary Registrar DDDKER 4341/2024 (Reference 2), it was directed that the quantity of milk be fixed at 200 litres in accordance with Section 66A of the Kerala Co-operative Societies Act. The Chairman has informed the board of directors that as per the Government Bill and the bye-laws of the union, it is the prerogative of the managing committee to take a decision on the same. The board of directors has decided to inform and record in the annual general body of the union as regarding the fixation of the quantity of milk as an WA NO. 90 OF 2025

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average 100 litres to be provided by the member society representing the candidate contesting the election to the board of directors of the union."

21. However, the impugned condition introduced by the

Returning Officer fixing the qualification in the ensuing elections is worth

extraction, the same reads as under:

"6. The minimum quantity of the milk to be provided by the member societies to the union is based on the decision no 5/2023 dated 24.03.1997 of the board of directors. As per Clause 20.2.9 of the bye-laws of the Union, from 01.04.2023 to 31.03.2024, the quantity of milk which was to be pooled for the period from 01.04.2023 to 31.03.2024 will be 200 litres on an average as the amount fixed in the previous year by the board of directors. Accordingly, for the said condition shall be applicable that the societies should have procured and pooled an average of 200 litres of milk per day to the Union during the said period for the purpose of contesting the election to the board of directors."

22. The aforementioned Clause indicate that the quantity

of 200 litres on an average as fixed the previous year, was on the basis of

the amendment caused in the existing bye-laws as far back as on March

1997. For the sake of repetition, the amendment in the bye-laws would

have no applicability after the amendment in Section 28, whereby Sub-

section 7 does not empower the Returning Officer or the Managing

Director of the Society to fix the quantity of the milk. The power to fix only

vests with the Managing Committee of the Union. The learned Single WA NO. 90 OF 2025

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Bench did not address the aforementioned issue while dealing with the

sustainability or otherwise of Ext.P6 and had rather misdirected by

referring to the definition of Section 2(u) of the Act prescribing definition