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Judgment
Cyriac Joseph, J.—The appellant-Board of Directors of the Kottappapy Service Co-operative Bank Ltd. No. E-125-represented by is President - is the petitioner in O. P. NO. 7473 of 1994. The present Board of Directors of the Kottappady Service Co-operative Bank Ltd. No. E-155 (hereinafter referred to as the Bank) was elected on 12-7-1992. The Board of Directors took charge on 14-7-1992. As per clause 35 of the by laws of the Bank, the term of office of the managing committee is for a period of two years from the date of election. Therefore the term of office of the present Board of Directors of the Bank was due to expire on dt. 11-7-1994.
A special general body meeting of the Bank held on 14-3-1993 amended clause 35 of the bye-laws of the Bank stipulating the term of the Board of Directors as three years instead of two years. Even though the amendment of the bye-laws was forwarded to the 1st respondent, Joint Registrar of Co-operative Societies, Ernakulam, for registration, the 1st respondent refused to register the amendment on the ground that the general body meeting was convened without giving seven clear days notice as prescribed in the bye-laws. Consequently the amendment to clause 35 of the bye-laws has not taken effect.
The Board of Directors of the Bank as per resolution dated 22-4-1994 resolved to conduct election to the Board of Directors of the Bank on 10-7-1994 and requested the 2nd respondent to appoint a returning officer for conducting the election. Since the 2nd respondent did not pass orders on the request to appoint a returning officer the Board of Directors of the Bank filed O. P. No. 6890 of 1994 praying for a direction to the Assistant Registrar of Co-operative Societies (General) Kothamangalam to appoint a returning officer. While the said Original Petition was pending, the 2nd respondent-Assistant Registrar as per his letter No. 58/94 dated 23-5-1994 (Ext. P1 in O. P. No. 7473 of 1994) rejected the request of the Board of Directors to appoint a returning officer for conducting election on 10-7-1994 Thereupon the Board of Directors of the Bank filed O. P. No. 7473 of 1994 praying to quash Ext. P1 letter of the 2nd respondent and also for a direction to the 2nd respondent to appoint a returning officer for holding the election on 10-7-1994. There was a further prayer for a direction to the 1st respondent to allow the committee to continue in office till the election was held.
O. P. No. 7473 of 1994 was disposed of along with O. P. Nos. 6890/94, 7172/94 and 7238/94 as per common judgment dated 7-7-1994.
As per the above-mentioned common judgment dated 7-7-1994 the learned single Judge held that the refusal of the Assistant Registrar to appoint a returning officer as per Ext. P1 was unsustainable. Respondents 1 and 2 were directed to ensure that election to the managing committee of the Bank is held and results declared on or before September 24, 1994. However the learned single Judge refused to grant the request of the petitioner in O. P. No. 7473 of 1994 to permit the existing managing committee to continue in office till the election is held. The learned single Judge held that the managing committee have no title to continue in office after July 12, 1994.
The petitioner in O. P. No. 7473 of 1994 has filed this Writ Appeal challenging the above mentioned common judgment dated 7-7-1994 only to the extent the learned single Judge refused to grant the request of the petitioner (appellant) to allow the existing managing committee to continue in office till the election is held.
The learned counsel for the appellant contended that the managing, committee of the Bank had taken all steps for conducting the election before its term expired; but the respondents deliberately tried to delay the election. According to the learned counsel, the election could not be held before the term of the managing committee expired only because the 2nd respondent without valid or sufficient reasons, refused to appoint a returning officer. It is true that the learned single Judge found that the refusal of the 2nd respondent to appoint a returning officer as per Ext. P1 was unsustainable. But while disposing of the Original Petition on July 7, 1994 the learned single Judge could not give a direction to conduct the election on July 10, 1994, because it was not then practically possible to hold the election on or before July 10, 1994. Hence the learned single Judge directed respondents 1 and 2 to ensure that election is held and results declared on or before September 24, 1994. The learned single Judge could not have done anything better in the given circumstances, with regard to the conduct of election:
The learned counsel for the appellant contended that since the election is delayed not due to any fault of the managing committee; the learned single Judge ought to have granted the prayer to direct the 1st respondent to allow the existing managing committee to continue in office till the election is held. But the petitioner cannot have any grievance about the refusal of the learned single Judge to allow the existing comma tee to continue in office after the expiry of its term. As rightly held by the learned single Judge the existing managing committee has no title to continue in office beyond the date of expiry of its tenure. So long as the petitioner has no right to continue in office beyond 12-7-1994, the petitioner is not entitled to request the Court to compel the respondents to allow the existing Board of Directors to continue in office after 12-7-1994. Under the provisions of the Kerala Co-operative Societies Act or the Kerala Co-operative Societies Rules, respondents 1 and 2 have no power or duty to allow a managing committee to continue in office after the expiry of its term. The High Court cannot compel respondents 1 and 2 to exercise a power or to perform a duty which they do not have, If a new committee is not constituted before the expiry of the term of the existing committee, provision has been made in Section 33 of the Kerala Co-operative Societies Act to avoid administrative stalemate in the society and to ensure proper management of the affairs of the society. In such a circumstance, the authority concerned will invoke the provisions in Section 33 of the Kerala Co-operative Societies Act and ensure that the affairs of the society are managed properly.''
According to the learned counsel for the appellant, considering the special circumstances in this case, this Court should permit the managing committee to continue in office till the election is held. He contended that while exercising the jurisdiction under Article 226 of the Constitution of India, the High Court is competent to pass such an order. Though the jurisdiction of the court under Article 226 is wide enough to include the power to issue orders which are necessary to uphold the rule of law and to prevent injustice, the Court has a duty to be extremely circumspect and to have due regard to the scheme of the statute and has to be satisfied on the facts of each case, about the necessity to issue such orders. The scheme of the Kerala Co-operative Societies Act and the Kerala Co-operative Societies Rules is that the term of the committee of a society is determined by the provisions in the bye-laws of the society and if for any reason the election could not be held before the expiry of the term of the existing committee, the Registrar will appoint a new committee consisting of not more than three members of the society or one or more administrator or administrators who need not be a member of members of the society, to manage the affairs of the society for a limited period within which the new committee has to be constituted. This is evident from Sections 28 (1) and 33 (1) of the Kerala Co-operative Societies Act and Rule 39 of the Kerala Co-operative Societies Rules, which are extracted below:
Section 28 (1):
28 Appointment of Committee.- (1) The general body of a society shall constitute a committee, for a period not exceeding three years, in accordance with the bye-laws and entrust the management of the affairs of the society to such committee.
Provided that in the case of society registered after the commencement of this Act, the persons who have signed the application to register the society may appoint a committee to conduct the affairs of the society for a period of three months from the date of registration or for such further period as the Registrar may consider necessary; but the committee appointed under this proviso shall cease to function as soon as a committee has been constituted in accordance with the bye-laws:
Provided further that where the bye-laws so provide, the Government or the Registrar may nominate all or any of the members of the first committee, including the President or Chairman, for a period not exceeding twelve months.
Provided also that the committee of a society already constituted and in existence at the Commencement of the, Kerala Co-operative Societies (Amendment) Act, 1992, shall,-
(a) if that Committee has completed three years or more, cease to be in existence at such commencement; and.
(b) if that Committee has not completed three years or the term as provided in the bye-laws, cease to be in existence on the expiry of three years or the term as provided in the bye-laws, whichever is earlier:
Section 33 (1):
Appointment of new committee or Administrator on failure to constitute committee, etc - (1) - Where the term of office of a committee has expired and a new committee has not been constituted, or where a no confidence motion is passed by the general body against the existing committee or where the existing committee resigns enbloc or where vacancies occur in the committee either by resignation or otherwise and the number of remaining members cannot constitute the quorum for the meeting of the committee, or where the committee fails to hold its regular meeting consecutively for six months or where the Registrar is satisfied............"
Rule 39:
"39. Election and term of the members of the Committee.-
(1) The bye-laws of every society shall provide for the term of its Committee.
(2) Notwithstanding anything contained is the bye-laws, for the purpose of calculating the term of a Committee, year shall be taken to be a period of twelve months from the date of assumption of office by the Committee. All the members of the committee (including those elected in causal vacancies) whether representing societies or individuals shall vacate their office on the expiry of the term of the committee irrespective of the date on which they were elected as member of the Committee.
(3) The election of all the members of the Committee shall be held before the expiry of the term of office of the existing Committee.
It can be seen that the statute does not contemplate the extension of the term of a committee prescribed by the bye-laws of the society under any circumstances. It is significant that earlier Rule 39 of the Kerala Co-operative Societies Rules had contained a provision enabling the Registrar to extend the term of a committee until such time within which the election should, in his opinion, be held but the said provision was deleted with effect from 14-7-1992. The Court cannot close its eyes to the statutory provisions referred above.
The learned counsel for the appellant pointed out two special circumstances in support of his plea for a direction to allow the committee to continue in office till the election is held. The first circumstance is that eventhough the general body meeting of the Bank held on 14-3-1993, amended clause 35 of the bye-laws of the Bank stipulating the term of the managing committee as 3 years instead of 2 years, the first respondent refused to register the amendment. The existing managing committee was elected on 12-7-1992. At the time of its election the term of the committee as per clause 35 of the bye-laws was only 2 years. Clause 35 of the bye-law was sought to be amended by the general body only at its meeting held on 14-3-1993. Hence even if the amendment was registered by the 1st respondent, the term of the committee which was elected on 12-7-1992 would have expired on 12-7-1994. Only a committee elected after the amendment of clause 35 will be entitled to continue in office for a period of three years, especially when the resolution of the general body did not indicate that the amendment will be applicable to the existing committee. The learned counsel on both sides admitted that the resolution of the general body did not say that the amendment would be applicable to the existing committee also. Thus it is clear that the general body did not want the existing committee to continue in office for a period beyond two years As per Section 27 (I) of the Kerala Co-operative Societies Act, subject to the provisions of the said Act the rules and the bye-laws, the final authority of a society shall vest in the general body of its members. Hence this Court cannot ignore the aspect that while amending clause 35 of the bye-laws the general body did not specify that the committee already elected and holding office would be entitled to continue beyond the period of two years. Hence we are of the view that the first circumstance mentioned by the learned counsel for the appellant cannot be a ground for allowing the existing committee to continue in office after 12-7-1994.
The second circumstance pointed out by the learned counsel for the appellant is that the 2nd respondent in the O. P. delayed a decision on the petitioner''s request to appoint a returning officer and ultimately when the decision was taken the 2nd respondent rejected the request. It is true that the learned single Judge found that the refusal of the 2nd respondent to appoint a returning officer was unsustainable. But the learned single Judge was not satisfied that the action of the 2nd respondent warranted the intervention of the court to allow the committee to continue in office till the election is held. We are also not satisfied that merely because the 2nd respondent refused to appoint a returning officer as requested by the appellant, the term of the committee should be extended ignoring the scheme of the statute and the intention of the general body which elected the committee. Hence the second circumstance pointed out by the learned counsel for the appellant does not call for an order by this Court to allow the appellant-committee to continue in office till the election is held.
The learned counsel for the appellant invited our attention to the decision in Bappu Haji v. Joint Registrar, 1992 (2) K. L. T. 526. The said decision was rendered on the basis that Rule 39 (2) of the Kerala Co-operative Societies Rules enabled the Registrar to extend the term of the committee of a society until such time within which the election should, in his opinion be held. As already pointed out earlier Rule 39 has been amended and the provision enabling the Registar to extend the term of the committee has been deleted. Hence the above-mentioned decision cannot support the case of the appellant herein. The view taken by us is strengthened by the judgment dated 12-1-1993 in W. A. No. 1147 of 1992, the judgment dated 11-1-1993 in W. A. No. 1287 of 1992 and the order dated 20-1-1994 in C. M. P. No. 29240 of 1993 in O. P. No. 12312 of 1993. In the judgments in 1147 of 1992 and W. A. No. 1287 of 1992 the Division Bench of this Court set aside the directions given by the learned single Judge for continuance of the existing committee beyond its term. In the order in C.M.P. No. 29240 of 1993 in O. P. No. 12312 of 1993 also the Division Bench set aside the order of the learned single Judge continuing the existing committee in office beyond the statutory period.
In the above circumstances the writ appeal is dismissed. No order as to costs.