Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 17TH DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 WA NO. 1327 OF 2023 AGAINST THE ORDER/JUDGMENT WP(C) 37356/2022 OF HIGH COURT OF KERALA APPELLANTS/PETITIONERS: 1 MR.STEPHEN GEORGE, AGED 59 YEARS S/O.GEORGE P.T., CHAIRMAN, MANAGING COMMITTEE, THE KNANAYA MULTI STATE CO-OPERATIVE CREDIT SOCIETY LTD. CATHEDRAL PARISH BUILDING, OPPOSITE BCM COLLEGE, K.K.ROAD, KOTTAYAM, KERALA, PIN - 686001 2 THE MANAGING DIRECTOR, THE KNANAYA MULTY STATE CO-OPERATIVE CREDIT SOCIETY LTD., BENNY PAUL S/O KURIAKO PAILY, AGED 53 YEARS, CATHEDRAL PARISH BUILDING, OPPOSITE BCM COLLEGE, K.K.ROAD, KOTTAYAM, KERALA, PIN - 686001 BY ADVS. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT AISWARYA E J VETTIKOMPIL ANNA LINDA EDEN HARIKRISHNAN S. S.SREEKUMAR (SR.) RESPONDENTS/RESPONDENTS: 1 THE CENTRAL REGISTRAR OF CO-OPERATIVE SOCIETIES, (ADDITIONAL SECRETARY), MULTI STATE CO-OPERATIVE CREDIT SOCIETIES, ROOM NO.130, DEPARTMENT OF AGRICULTURE, CO- OPERATION AND FARMERS WELFARE, MINISTRY OF AGRICULTURAL AND FARMERS WELFARE, RISHI BHAVAN, NEW DELHI -100001 -2- 2 THE RETURNING OFFICER, [ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)], KOTTAYAM - 686 001, THE KNANAYA MULTI STATE CO-OPERATIVE CREDIT SOCIETY LTD., CATHEDRAL PARISH BUILDING, OPPOSITE BCM COLLEGE, K.K.ROAD, KOTTAYAM , KERALA, PIN - 686001 3 PHILIP THOMAS, AGED 60 YEARS S/O.THOMAS CHALUMKAL, CHALUMKAL HOUSE, SANKRANTHI, KOTTAYAM, KERALA -, PIN - 686016 4 JOHNY KURUVILLA, S/O.P.P.KURUVILLA, PADICKAMYALIL HOUSE, MARIDON, KADAPLAMATTOM P.O. KOTTAYAM DISTRICT, PIN - 686571 *ADDL.5 K.P.JOSE S/O PHILIP, RESIDING AT KAVUNNUKATTIL, KIDANGOOR SOUTH P.O., KOTTAYAM, KERALA.
(*IS IMPLEADED AS ADDITIONAL R5 AS PER ORDER
DATED 05.09.2023 IN I.A.NO.1 OF 2023) BY ADVS. SMT.MINI GOPINATH, CGC SUNDEEP ABRAHAM SIVAN MADATHIL R.REJI M.V.THAMBAN THARA THAMBAN B.BIPIN ARUN BOSE JEENA A.V. THOMAS THOMAS SABU M R P.RAVINDRAN (SR.)(R-341) LAKSHMI RAMADAS(K/390-E/1998) APARNA RAJAN(K/851/2009) SREEDHAR RAVINDRAN(K/559/2012) THIS WRIT APPEAL HAVING FINALLY HEARD ON 13.09.2023, ALONG WITH WA.1388/2023, THE COURT ON 17.10.2023 DELIVERED THE FOLLOWING: -3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 17TH DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 WA NO. 1388 OF 2023 AGAINST THE ORDER/JUDGMENT WP(C) 37356/2022 OF HIGH COURT OF KERALA APPELLANTS/3RD PARTY: 1 BINOY MATHEW AGED 52 YEARS S/O.MATHEW, EDAYADIYIL HOUSE, VALLICHIRA P.O, KOTTAYAM DISTRICT, PIN - 686574 2 THOMAS PHILIP AGED 65 YEARS S/O.PHILIP, PEEDIKAYIL HOUSE, THELLAKOM P.O, KOTTAYAM DISTRICT, PIN - 686630 3 JILMON JOHN AGED 58 YEARS S/O.JOHN, MADATHIL HOUSE, MANAKAD P.O, THODUPUZHA, IDUKKI DISTRICT, PIN - 685608 4 TOMY MATHEW AGED 58 YEARS S/O K.J.MATHEW, KOCHANAYIL HOUSE, MARIATHURUTH P.O, KOTTAYAM DISTRICT, PIN - 686017 5 SYMON N. XAVIER AGED 57 YEARS S/O.M.M.XAVIERKUTTY, MANAPPALLIL HOUSE, VARANAM P.O, ALAPPUZHA DISTRICT, PIN - 688555 BY ADVS. -4- T.R.HARIKUMAR ARJUN RAGHAVAN CHRISTINE MATHEW RESPONDENTS/PETITIONERS/RESPONDENTS 1& 2 AND ADDL.RESPONDENTS 3 & 4 IN WP(C): 1 STEPHEN GEORGE
AGED 59 YEARS CHAIRMAN, MANAGING COMMITTEE, THEKNANAYAMULTY STATE CO-OPERATIVE CREDIT SOCIETY LTD., CATHEDRAL PARISH BUILDING, OPPOSITE BCM COLLEGE, K.K. ROAD, KOTTAYAM, KERALA, PIN - 686001 2 THE MANAGING DIRECTOR, THE KNANAYA MULTY STATE CO-OPERATIVE CREDIT SOCIETY LTD., CATHEDRAL PARISH BUILDING, OPPOSITE BCM COLLEGE, K.K. ROAD, KOTTAYAM,KERALA, PIN - 686001 3 THE CENTRAL REGISTRAR OF CO-OPERATIVE SOCIETIES (ADDITIONAL SECRETARY), MULTI STATE CO- OPERATIVE CREDIT SOCIETIES ROOM NO.130, DEPARTMENT OF AGRICULTURE, CO- OPERATION AND FARMERS WELFARE, MINISTRY OF AGRICULTURAL AND FARMERS WELFARE, KRISHIBHAVAN, NEW DELHI, PIN - 100101 4 THE RETURNING OFFICER (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM-THE KNANAYA MULTY STATE CO-OPERATIVE CREDIT SOCIETY LTD., CATHEDRAL PARISH BUILDING, OPPOSITE BCM COLLEGE, K.K. ROAD, KOTTAYAM, KERALA, PIN - 686001
5 PHILIP THOMAS AGED 60 YEARS S/O.THOMAS CHALUMKAL, CHALUMKAL HOUSE, SANKRANTHI, KOTTAYAM, KERALA, PIN - 686016 6 JOHNY KURUVILA -5- S/O. P.P.KURUVILA, PADICKAMYALIL HOUSE, MARIDON, KADAPLAMATTOM P.O, KOTTAYAM DISTRICT, PIN - 686571 BY ADVS. R.REJI M.V.THAMBAN THARA THAMBAN ARUN BOSE B.BIPIN THIS WRIT APPEAL HAVING FINALLY HEARD ON 13.09.2023, ALONG WITH WA.1327/2023, THE COURT ON 17.10.2023 DELIVERED THE FOLLOWING: -6-
JUDGMENT
[WA Nos.1327/2023, 1388/2023]
AMIT RAWAL, J.
1. Writ Appeal No.1327 of 2023 has been
preferred against the judgment dated 06.07.2023 whereby the writ of the petitioners bearing No.37356 of 2022 seeking directions to the Central Registrar of Co- operative Societies to pass an order in the application for amendment of Clause 37 of bye-laws and not to reject the nomination of any member who is contesting the election for third time, has been dismissed.
2. It is pertinent to mention here that during the
pendency of the aforementioned writ petition, by virtue of interim order dated 24.11.2022 Single Bench of this Court permitted the members who have held the office for two terms to submit their nominations and contest the election, subject to the order to be passed by the Central Registrar of Co-operative Societies in pursuance to the resolution dated 27.08.2022 deleting some portion -7- of bye-laws 37 prohibiting the members to contest the election who had held the office for two years consecutively, and final outcome of the writ petition. In view of the interim order, the appellants in Writ Appeal No.1388 of 2023 also contested the election by submitting their nominations. Writ petition was dismissed. Candidates who contested the election are the appellants in 1388 of 2023 and 1st petitioner in Writ Petition (C)No.37356 of 2022. Therefore the question of
facts and law involved being identical, we intend to
dispose of the aforementioned appeals by way of a common judgment.
3. Chairman of the Managing Committee of
Knanaya Multi State Co-operative Credit Society Limited and the Managing Director preferred Writ Petition No.37356 of 2022 with the prayer, aforementioned, on the ground that the Society had approved the by-laws Ext.P1 which provided for election of eighteen(18) members as the Board of Director and to co-opt two(2) -8- eminent persons to make it twenty(20). Clause 37 of the Bye-laws impose a restriction of elected members of the Board of Directors for re-election if they have held the office for two terms consecutively. The said clause was placed before the Board of Directors. Board of Directors vide resolution dated 27.08.2022 caused the amendments to the aforementioned bye-laws by stating that the term of the office of the elected members of the Board of Directors shall be five(5) years from the date of election. Thus the restriction imposing to contest the election if member had held the office for two years, was taken of. The amended and unamended clauses read as under:- “Term of the Board of Directors: Existing Amended
The term of the office The term of the office of of the elected the elected members of members of the Board the Board of Directors of Directors shall be 5 shall be 5 years from the years from the date of date of election. election. They are The term of office of the -9-
eligible for re-election members of the Board but not more than two who are nominees of the terms consecutively. Government or institutions or federations The term of office of if any shall be as indicated the members of the from time to time by the Board who are Government or the nominees of the concerned institutios. Government or However, their term will institutions or be co-terminus with the federations if any shall term of the elected be as indicated from Directors/Board; and the time to time by the Government/concerned Government or the institutions shall make concerned institutios. fresh nominations for the However, their term new Board. will be co-terminus with the term of the elected Directors/ Board; and the Government/concerned institutions shall make fresh nominations for the new Board.
” The aforementioned resolution was sent to Central Registrar for registration on 12.09.2022 for obtaining a registration under Section 12 of the Multi State Co- -10- operative Societies Act, 2002 (hereinafter called ‘Act 39 of 2002’, for short). The said Section envisages that the bye-laws would come into force on the day it is registered. The Central Registrar conducted a hearing for registration on 11.12.2022.
4. In the meantime, the term of the elected body
of the Society was expiring on 18.11.2022. On 08.11.2022 election was notified by fixing the following schedule of election: 1) 28.11.2022 receipt of nominations 2) 28.11.2022 scrutiny 3) 11.12.2022 election 4) 12.12.2022 counting. Since the last date for submission of the nomination was expiring on 29.11.2022 and by that time the Central Registrar had not accorded registration, the members who had already held the office for more than three years and aspirant to contest the elections approached this Court vide writ petition aforementioned i.e., W.P. -11- (C)No.37356 of 2022 presented on 21.11.2022. It is pertinent to mention here in the meantime certain persons have also filed the writ petitions, W.P. (C)Nos.31878 of 2022 on 06.10.2022, 30519 of 2022 on 23.09.2022 and 34896 of 2022 on 31.08.2022 claiming following reliefs: "In W.P (C) No. 34896 of 2022 dated 31.08.2022, the reliefs sought are hereunder;
I) issue a writ of mandamus directing the 1st respondent to appoint a returning officer for conducting the election to the board of directors of the 2nd respondent society in accordance with the MSCS Act as per the election schedule of the MSCS Rules; ii) Issue a writ of Mandamus directing the 1st respondent not to register the amendments which were allegedly to have been made on 27.08.2022; iii) Issue a writ of mandamus directing the 1st respondent to hold that the present members of the Board are ineligible to stand for re-election in accordance with Section 43(2) of the MSCS Act; iv) Issue such other reliefs as this Hon'ble -12- Court may deem fit and proper in the circumstances of the case in the interest of justice. v) Award the costs of the Writ Petition. In W.P (C) No. 31878 of 2022, the reliefs sought are hereunder; "i) To issue a declaration that the 2 nd and 3rd respondents fail to conduct election as per the mandate of the Multi State Co- operative Societies Act, 2002 and hence the 1st respondent shall hold election as per the mandate of Section 45 (6) of the Act; ii) To issue of writ of mandamus or any writ,
order or direction, directing the 1st
respondent to conduct election within a time frame as may be fixed by this Hon'ble Court; iii) To issue such other further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case, W.P.(C) No. 30519 of 2022 the reliefs sought are hereunder; i) to issue a declaration that any further delay in considering Exhibit-P1 complaint and Exhibit-P2 stay petition of the petitioner by the 1st respondent is illegal -13- and arbitrary; ii) to issue of writ of mandamus or any writ,
order or direction, directing the 1st
respondent to consider Exhibit P1 complaint of the petitioner; iii) to issue such other further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case.” It appears that there was a clash of interest between the two segment of members; one group were aspirants to conduct election despite having held office for more than two years and the other group, who did not want the elected members who had held the office for two years to contest.
5. Noticing the fact that Registrar may take some time to register the bye-laws, Single Bench of this Court on 24.11.2022 passed the following interim order:
“Petitioners aspire to contest in the election to the Board of Directors of the Knanaya Multistate Co-operative Credit Society Ltd. The first petitioner is the Chairman and the second petitioner, a Managing Director of the -14-
Society. The next election to the Managing Committee of the Society is notified as per Ext.P3. Petitioners are apprehensive that in view of Clause 37 of the bye-laws, the Director Board members who have held office for more than two terms will not be allowed to contest in the ensuing election. Hence this writ petition.
2. Learned Senior Counsel appearing for
the petitioner pointed out that the general body of the Society amended Clause 37 of the bye- laws and deleted the portion in Clause 37, restricting re-election of members to two terms consecutively. Referring to Ext.P4, it is submitted that the general body resolution is pending approval before the first respondent and is posted on 11.12.2022 for orders. It is contended that although Section 45(4) of the Multi-State Co-operative Societies Act, 2002 stipulates that, elected members of the board shall, if the bye-laws of such society permit, be eligible for reelection. Insofar as no such disqualification is provided in Clause 39 dealing with disqualification for being a member of the Board, the only conclusion that can be arrived at is that Clause 37 is not an embargo for reelection of members who have held office for more than two consecutive terms.
3. Learned CGC submitted that certain other writ petitions challenging the general -15- body decision are pending before this Court. Further, the first respondent has directed to conduct inspection and submit a report within ten days.
4. Considering that the general body has
resolved to delete the portion in Clause 37 which is to the effect that members holding office for more than two consecutive terms cannot seek re-election and the resolution is posted for orders on 11.12.2022, the date on which the polling to the managing committee of the Society is scheduled to be held, it is only appropriate to permit the members who have
held office for two terms also to contest, subject
to the decision to be taken by the first respondent. Hence, there shall be an interim
order permitting the members who have been
office bearers of the Society for more than two terms to contest in the election, subject to the
order to be passed by the first respondent on
Ext.P2 resolution and the final outcome of this writ petition. ”
6. On perusal of the above, it is evident that the
members who had held the office for two years that is as per the unamended provisions of Clause 37 by way of amendment were barred to seek re-election, were -16- permitted to submit nomination and contest the election subject to the order passed by the Central Registrar on resolution dated 27.08.2022 Ext.P2 and final outcome of the writ petition. On 11.12.2022 elections were held. Returning Officer submitted his report dated 12.12.2022 placed on record by Special Government Pleader, Co- operation vide interim application. The writ petitions W.P.(C)Nos.31878, 30519, 34896 of 2022 were rendered infructuous on 04.07.2023.
7. Learned Single Bench vide judgment dated
06.07.2023 dismissed W.P(C).37356 of 2022 by holding that the Central Registrar registered the resolution on 29.03.2023 meaning thereby the amendments sought in prohibiting the members who had held the office for two years to seek re-election was registered on 29.03.2023 and therefore the permission granted by virtue of interim
order would pale into insignificance as the effectiveness
of the resolution is 29.03.2023.
8. Mr.Sreekumar, learned counsel submitted that
-17- the judgment of the Single Bench is wrong in law and facts. The members who are having disqualification under Clause 37 of bye-laws cannot disqualified from being considered as elected members depending upon the number of votes polled in their favour as per sub section 7 of Section 11 and proviso to sub-section 7 of the Act 39 of 2002.
9. The resolution dated 27.08.2022 was received
in the office of the Central Registrar for approval on 12.09.2022. The three months period expired on 11.12.2022 i.e., the date of the election. But the Registrar approved the amendment only on 29.03.2022 it cannot thus apply retrospectively but prospectively, as, by that time, by virtue of an interim order, petitioners were permitted to contest the elections, however it was subject to the outcome of the writ petition. In other words, there is no reference to the statutory/deeming
provisions thus ought to have upheld the interim order
for the reason that the candidates who were eligible as -18- per the unamended bye-laws had secured more than ¾ of the total votes polled.
10. On the other hand, counsel for the respondents
relied upon a communication of the Central Registrar dated 03.12.2022 Ext.R4(a) addressed to the Chief Executive Officer, Kanyana Multi State Co-operative Society, informing that it has been brought to their notice that a writ petition has been filed before the High Court to declare the general body meeting held on 27.08.2022 of the aforementioned Society as null and void and stay the operation of the amendment to the bye- laws. Another complaint dated 28.09.2022 was also received from a member of the Society stating that the Society had not conducted the General Body meeting as per the provisions of Act 39 of 2022 as the voting was done by persons who were not the members of the Society. Office sought the comments from the Society in the matter and which were awaited. Even the Registrar Co-operative Society(RCS), Kerala was also requested -19- separately to conduct inspection of the Society as per the provisions of Section 108 as the genuineness of the meeting conducted to pass the proposed amendment was under question. The amended clauses cannot be considered at this stage and would be taken up after consideration on merits after receipt of the clarification from the Society and receipt of inspection report from RCS, Kerala. In this view of the matter petitioners/writ appellants cannot take the benefit of the deeming provision in the sub-section 7 and proviso thereof, thus for all intends and purposes the effective date of the bye- laws would be the date of registration i.e., 29.03.2023 as the Central Registrar was in predicament to effect the registration of the resolution dated 24.08.2022. Certificate of the registration has been also issued on the same date 29.03.2022 Ext.R1(a). It was submitted that writ petitioners nor similarly placed persons/members were/are entitled to contest the election. The order of the Single Bench is perfectly legal and justified and do -20- not call for any different opinion.
11. Mr.Sreekumar, in rebuttal, submitted that all
possible delaying tactics were followed in preventing the petitioners and other similar situated members/persons to contest the elections by filing series of writ petitions referred to above. There was no need for the Central Registrar to keep the question of registration pending for almost two months and the predicament of the petitioners was writ large as, by that time, the election schedule was notified. They had no other option but to approach this Court and by interim order, were permitted to continue. In support of the contentions relied upon the judgment of Full Bench of this Court in Abdul Kharim and Another V. Pazhayakunummel Grama Panchayath and Another (2018 (5) KHC 643) wherein provisions of Sub-section 3 of Section 236 of the Kerala Panchayath Act, 1994 envisaged the decision of the application for Building Permit fixing the time limit of 30 days of the application, if in order. On -21- going by the provisions, it was held that the application if submitted in order and no decision is taken within thirty
(30) days and the deeming provision based on legal
fiction would attain a desired legal consequence. In other words, a deemed permit would come into existence on expiry of thirty(30) days. In the instant case also there was no defect in the resolution and despite creating an apprehension by virtue of letter dated 03.12.2022, Central Registrar taken three months in granting the registration. While granting registration ought to have clarified its effective date from the date of registration by taking into consideration the provisions of Sub section 7 and proviso thereto of Section 11 of Act of 39 of 2002. A very analogous situation has arisen that by virtue of interim order petitioners were permitted to contest and by final order, were prevented from being considered for counting.
12. We have heard learned counsel for the parties and appraised the paper books. -22-
13. Before dealing with the rival contentions and
case law, it would be axiomatic for us to extract the provisions of Section 11 and 12 of Act of 39 of 2002. “11. Amendment of bye-laws of a multi- state co-operative society
(1) No amendment of any bye-law of a multi-state cooperative society shall be valid, unless such amendment has been registered under this Act.
(2) The amendment to the bye-laws of a
multi-state cooperative society shall be made by a resolution passed by a two-third majority of the members present and voting at general meeting of the society.
(3) No such resolution shall be valid unless fifteen clear days’ notice of the proposed amendment has been given to the members.
(4) In every case in which a multi-state cooperative society proposes to amend its bye- laws, an application to register such amendments shall be made to the Central Registrar together with-
(a) a copy of the resolution referred to in sub-section (2);
(b) a statement containing the particulars -23- indicating-
(i) the date of the general meeting at which the amendments to the bye- laws were made;
(ii) the number of days’ notice given to convene the general meeting;
(iii) the total number of members of the multi-state cooperative society;
(iv) the quorum required for such meeting;
(v) the number of members present at the meeting;
(vi) the number of members who voted in such meeting;
(vii) the number of members who voted in favour of such amendments to bye-laws;
(c) a copy of the relevant bye-laws in force with the amendment proposed to be made together with reasons justifying such amendments;
(d) four copies of the text of the bye-laws incorporating therein the proposed amendments signed by the officer duly authorised in this behalf by the general body; -24-
(e) a copy of the notice given to the members and the proposal to amend the bye-laws;
(f) a certificate signed by the person who presided at the general meeting certifying that the procedure specified in sub- sections (2) and (3) and the bye-laws, had been followed;
(g) any other particular which may be required by the Central Registrar in this behalf.
(5) Every such application shall be made within sixty days from the date of the general meeting at which such amendment to the bye- laws was passed.
(6) The procedure given in sub-sections
(2) to (5) of this section shall apply to the amendment of the bye-laws of a cooperative society desiring to convert itself into a multi- state cooperative society as per the provisions of section 22.
(7) If, on receipt of application under sub-section (5), the Central Registrar is satisfied that the proposed amendment-
(a) is not contrary to the provisions of this Act or of the rules;
(b) does not conflict with cooperative -25- principles; and
(c) will promote the economic interests of the members of the multistate cooperative society, he may register the amendment within a period of three months from the date of receipt thereof by him.
(8) The Central Registrar shall forward to the
multi-state cooperative society a copy of the registered amendment together with a certificate signed by him within a period of one month from the date of registration thereof and such certificate shall be conclusive evidence that the amendment has been duly registered.
(9) Where the Central Registrar refuses to
register an amendment of the bye-laws of a multi-state cooperative society, he shall communicate the order of refusal together with the reasons therefor to the Chief Executive of the society in the manner prescribed within fifteen days from the date of such refusal; Provided that if the application for registration is not disposed of within a period of three months specified in sub-section (7) or the Central Registrar fails to communicate the
order of refusal within that period, the
application shall be deemed to have been accepted for registration and the Central Registrar shall issue registration certificate in -26- accordance with the provisions of this Act.
12. When amendment of bye-laws comes into force
An amendment of the bye-laws of a multi- state cooperative society shall, unless it is expressed to come into operation on a particular day, come into force on the day on which it is registered.”
14. The law with a deeming provision based on a
legal fiction would definitely attain a desired legal consequences if there was no ambiguity or short coming in the application. By noticing the provisions of Sub section 3 of Section 236 of the Kerala Panchayat Act, the Full Bench in paragraph Nos.9 to 12 held as under:
“9. A deeming provision is based on legal fiction for attaining a desired legal consequence. Therefore it will have to be strictly interpreted. It becomes operational only upon such factors as referred and exist under the statutory provision. The court cannot eschew the elements that are required to form part of legal fiction while interpreting the provision. All the elements must be satisfied to give effect to the deeming provision. Therefore, we have to examine the elements which are required to -27-
declare that the applicant would be entitled to a deemed licence. The Court also will have to consider the very object of such deeming provision in the light of the statutory provisions.
10. The local authority will have to act promptly
on an application for licence or permit. That is the reason why the Statute stipulates time bound consideration of such application. The law makers felt that an applicant should not be denied of his fundamental right to effectuate business or such other activities on account of the inert attitude of a local authority. The very fixation of the outer limit is therefore to uphold the fundamental rights of the citizens.
11. There are two elements that would require
to be established by an applicant to entitle him for a ‘deemed licence’. One is lodging an application in accordance with the statutory provision and other is the expiry of the time for consideration of such an application by the authority. The very purpose of fixing an outer limit for consideration of the application is to find out the validity of application and also to consider whether the applicant is entitled for permit or licence. The point that arises for consideration is, when an application is found to be defective within the outer limit stipulated for considering such application, can that application be considered as an ‘application’ as -28-
stipulated under S.236(3) of the Act?
12. The Statute prescribes the mode of lodging
the application. In the matter of building construction, R.7 lays down the procedure and the documents to be accompanied with the application. In the matter of licence for other activities, the Rules also insist that it should accompany such requisites along with the applications, for example, Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (D & O Rules)). Similarly, the Rules for application for development permit also insists certain formalities. If an application is filed without complying such norms and requirements under law, it cannot be treated as an ‘application’. The application as referred under S.236(3) of the Act cannot be understood as an application which does not satisfy the legal requirements. The law assumes that the application was in order, if no decision is taken within the time prescribed. This is the first part of the element of legal fiction. Therefore, upon expiry of the time for consideration, if no order is passed on such application and communicated to the applicant, a deemed permit would come into existence. This is the second part of the element of legal fiction. The deeming provision cannot come into effect on the basis of an -29-
application which is not, in accordance with the stipulations or satisfying the specifications. When the local authority calls for further details, the applicant will necessarily have to furnish it and in that circumstance the 30 days commence only from the date of furnishing of such details. It is also not an imperative that every communication seeking clarification should have a recital of rejection. If an application is found defective within time and communicated to the applicant within time, the law considers that no application exists for consideration unless the defects are cured. Such fiction would arise again when the applicant resubmits the application. The proposition as above is incontrovertible from the language as well as the object of the provisions.”
15. From the perusal of the amended and unamended bye-laws of 37 passed by resolution dated
27.08.2022, it is revealed that the person who had held
the office of the Society for more than two years consecutively would not be entitled to seek elections whereas the amendment deleted such embargo/ restrictions meaning thereby a person/member can seek -30- the mandate/contest the election any number of times. The petitioners/appellants had already held the office for two years consecutively and as per the unamended bye-
law were prevented to participate in the elections held
on 11.12.2022 were hopeful and sanguine of contesting the same with further hope that registration would be effected within a reasonable time i.e., much before the date of election. The resolution was received in the office of the Central Registrar within a period of thirteen
(13) days. Registrar remained silent on the said
resolution upto 03.12.2022 and only eight(8) days were left for the election. Writ petitions filed by other members who were having a conflict of interest against the petitioners and similarly situated members filed writ petitions with an aim prima facie to delay the registration by creating impediment with a further intend that the petitioners and the other similarly situated members may not be able to contest the elections but later on did not press the writ petition -31- which were rendered infructuous vide order dated
04.07.2023. But the fact remains the interim order
extracted above gave liberty to petitioners and similar members to submit the nomination and contest the elections. No doubt it is settled law that some benefit taken on the interim order would not entitle the persons to seek its formal nod. But there cannot be any fault on behalf of the petitioners, for, the Central Registrar had taken much time in granting registration and created doubt only on 03.12.2022. It would worthwhile to extract the content of letter Ext.R4(a) which reads thus:
“(Under sub-section 9 of section 11 of the Multi State Cooperative Societies Act, 2002 read with rule 7 of the Multi-State Cooperative Societies Rules, 2002) The Knanaya Multistate Cooperative Credit Society Ltd., Cathedral Parish Building, Opp. BCM College, K.K. Road, Kottayam, Kerala-686001 vide letter no. KMCCS/HO/164/2022 dated 29th August (received in this office on 12/9/2022) has submitted a proposal for amendments to bye- laws. -32-
It is has been brought to the notice of this office that a Writ Petition has been filed before Hon’ble High Court of Kerala to declare the general body meeting held on 27.08.2022 of above mentioned Society as null and void and to stay the operation of amendment of bye-laws passed in this General Body Meeting till the disposal of the complaint. In the meantime another complaint dated 28.09.2022 has also been received from a member of the Society stating that society has not conducted General Body Meeting as per the provisions of MSCS Act, 2002. held that a It has been alleged that the voting was done by people who were not the members of the society. This office has sought comments from the society in the matter and the same are awaited. RCS Kerala has also been requested separately to conduct inspection of the Society in the matter u/s 108. Since the genuineness of the meeting conducted to pass the proposed amendment is under question, the amendment proposal cannot be considered at this stage and would be taken up for consideration on merits after receipt of clarification from the Society and receipt of inspection report from RCS, Kerala.
This issues with the approval of the Central Registrar of Cooperative Societies.” -33-
16. The contents of the letter would also reveal
that the resolution was under challenge. Petitioners/appellants never raised any challenge except that other persons having a clash on interest with the petitioners and other members, had challenged the resolution. We would be restraining to comment the purpose and the intend in issuing the letter as late as on 03.12.2022 for the language of Sub-sections 7 and 8 of Section 11 does not require any ponderance or interpretation. It is clear that if at all the Central Registrar refuses to register the amendment, has to be communicated within fifteen(15) days from the date of
the refusal. Otherwise if found to be in order
amendment has to be registered within a period of three months from the date of receipt. The registration certificate Ext.R1(a) do not reveal that there was any impediment in the amendment giving cause for exercising the power under Sub-section 9 of Section 11 for refusing the registration. These factors have not -34- been noticed by the learned Single Bench. Accordingly the judgment of the Single Bench is set aside. Writ appeals are allowed. Returning Officer is directed to declare the result of the election held in terms of the interim order dated 24.11.2022. Petitioners and other persons are held to be eligible for contesting the election and submission of their nominations in terms of the amended by-laws as it is deemed to have been passed on 11.12.2022. The interlocutory applications filed on behalf of the persons who have a clash of interest against the petitioners/appellants are dismissed. Sd/- AMIT RAWAL JUDGE Sd/- C.S. SUDHA JUDGE vv -35- APPENDIX OF WA 1327/2023 RESPONDENT EXHIBITS EXHIBIT R5(A) TRUE COPY OF THE RECEIPT NO.3654 DATED 31.08.2022 ISSUED BY THE 2ND RESPONDENT