Full Judgment Text
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PETITIONER:
JT. REGISTRAR OF COOPERATIVE SOCIETIES, KERALA
Vs.
RESPONDENT:
T.A.KUTTAPPAN & ORS.
DATE OF JUDGMENT: 09/05/2000
BENCH:
Y.K.Sabharwal, S.R.Babu
JUDGMENT:
RAJENDRA BABU, J. :
These appeals by special leave are against a common
order made in O.P.Nos.12184, 14840, 14686, 15700, 17258,
18398 and 20913/97. Section 32 of the Kerala Cooperative
Societies Act, 1969 [hereinafter referred to as ‘the Act’]
enables the Registrar of Cooperative Societies to supersede
the Committee of Management under the circumstances set
forth in sub-Section (1) thereto. After supersession of the
Committee of Management, the Registrar can appoint an
administrator or administrators or a Committee as provided
in Section 32(1)(a) and (b) of the Act. Such Committee or
administrator or administrators so appointed shall, subject
to the control of the Registrar and to such instructions as
he may from time to time give, have power to exercise all or
any of the functions of the Committee or of any officer of
the society and take all such action as may be required in
the interests of the society. When the administrator
appointed on supersession of the Committee of Management of
certain Cooperative Societies wanted to enrol new members to
the society the same was objected to and the original
petitions under Article 226 of the Constitution were filed
before the High Court on the ground that the Registrar is
only expected to carry on day-to-day functions of the
society and see that election is conducted and a new
Committee in accordance with the Act, Rules and bye-laws of
the society is constituted. It was contended before the
court that the earlier decision in George vs. Joint
Registrar, 1985 KLT 836, is no longer good law in the light
of the decision of this Court in K. Shantharaj & Anr. vs.
M.L.Nagaraj & Ors., 1997 (6) SCC 37. The Full Bench of the
High Court, after referring to the earlier decision of the
High Court and the decision of this Court in K.
Shantharaj’s [supra] held that the admission of a member is
not mere ‘function’ of the Committee, but is a ‘power’ of
the Committee to admit members or not as provided in Bye
Laws of the Society. The Committee can exercise only
certain functions and not any powers and, therefore, the
administrator or a Committee appointed as aforesaid has no
power to enrol new members. This order is in challenge in
these appeals.
It is now brought to our notice that subsequent to the
decision of the High Court, the provisions of Section 32
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have been amended so that the administrator or the Committee
will have power to exercise all or any of the powers and
functions of the Committee. It is further brought to our
notice that in Cherthala Agricultural Rural Development Bank
& Ors. vs. Joint Registrar & Ors., 2000 (1) KLJ 291 (FB)
it has been held that the decision in the case before us
holding that the administrator has no power to enrol new
members would have prospective and not retrospective effect.
The scope of neither amended Section 32 of the Act nor the
decision in Cherthala Agricultural Rural Development Bank &
Ors. vs. Joint Registrar & Ors. (supra) is required to be
considered by us in these proceedings.
The question whether an administrator appointed during
supersession of a Committee of Management of a Cooperative
Society can enrol new members is no longer res integra.
When an identical question came up before this Court for
consideration in K. Shantharaj’s case [supra], this Court
held that from the language of Sections 30 (which is similar
to Section 32(4) of the Act) and 30A of the Karnataka
Cooperative Societies Act, 1959, it would be clear that the
administrator, subject to control of Registrar exercise all
or any of the functions of the society, and the Special
Officer subject to control of the State Government and the
Registrar exercise and perform all the powers and functions
of the committee of the society and in the interest of the
society can take such action as is necessary for proper
functioning of the society as per law. He should conduct
elections as is enjoined thereunder, that is, he is to
conduct election with the members as on the rolls and by
necessary implication, he is not vested with power to enrol
new members of the society. In the light of this clear
enunciation of law the view taken by the High Court appears
to be correct.
However, the learned Addl.Solicitor General appearing
for the appellants, submitted that there is difference in
language between the provisions of the Karnataka Cooperative
Societies Act and the Act which was, in fact, noticed by the
Karnataka High Court and, therefore, submitted that the
decision in K. Shantharaj’s case [supra] is not applicable
to the facts of this case. For the purpose of appreciation
of this submission, it is necessary to set out the relevant
provisions of the Karnataka Act and the Kerala Act :
Section 30(2) of the Karnataka Act Section 32(4) of
the Act
"The administrator so appointed shall subject to the
control of the Registrar and such instructions as he may
give from time to time, exercise all or any of the functions
of the Committee or of any officer of the Cooperative
Society and take such action as he may consider necessary in
the interest of the society."
Section 30-A of the Karnataka Act
"Appointment of Special Officer. - (1) Where the
State Government, on a report made to it by the Registrar or
otherwise, is satisfied that any Cooperative Society is not
functioning in accordance with the provisions of this Act or
the rules made thereunder or its bye-laws or any order,
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direction or circular issued by the State Government or the
Registrar, it may notwithstanding anything in this Act, by
order, appoint a Special Officer for such Cooperative
Society for such period not exceeding two years :
Provided that the State Government may, if it
considers it necessary extend the said period of two years
by such further period not exceeding one year. (2) *
(3) The Special Officer shall, subject to the control of the
State Government and the Registrar, exercise and perform all
the powers and functions of the Committee of the Cooperative
Society or any officer of the Cooperative Society and take
all such actions as may be required in the interest of the
Cooperative Society."
"The Committee or administrator or administrators so
appointed shall, subject to the control of the Registrar and
to such instructions as he may be from time to time give,
have power to exercise all or any of the functions of the
Committee or of any officer the society and take such action
as may be required in the interests of the society."
The learned Addl.Solicitor General relied on that
portion of the judgment of the Division Bench which affirmed
the view of the learned Single Judge where a comparison
between the Act and the Karnataka Act was considered and we
may set out what was stated by the Division Bench :
"Accordingly, he is not entitled to enrol new members.
But it has to be noted that the wording of Section 32(4) of
the Kerala Cooperative Societies Act is slightly different
from the wording of Section 30 of the Act. In the Kerala
Act, the Administrator has power to exercise all or any of
the functions of the committee, whereas in the Karnataka
Act, the Administrator can only exercise all or any of the
functions of the committee. Moreover, as stated earlier,
the difference in the authority vested in an Administrator
and a Special Officer, as is made in the Karnataka Act is
not considered in the Kerala decision. The difference in
the authority vested in an Administrator and a Special
Officer in the Karnataka Act, is very significant which is
absent in the Kerala Act. In that view of the matter, the
dictum laid down by the Division Bench of the Kerala High
Court, cannot have any application while determining the
comparative authority of an Administrator and a Special
Officer appointed under Sections 30 and 30-A of the
Karnataka Act respectively."
This very aspect was also brought to the notice of the
Full Bench of the Kerala High Court.
If we carefully analyse the provisions of the Act, it
would be clear that the administrator or a Committee
appointed while the Committee of Management of the Society
is under supersession cannot have the power to enrol new
members and such a question ought not to be decided merely
by indulging in an exercise on semantics in ascertaining the
meaning of the expression have "power to exercise all or any
of the function.". Whether an authority is discharging a
function or exercising a power will have to be ascertained
with reference to the nature of the function or the power
discharged or exercised in the background of the enactment.
Often we do express that functions are discharged or powers
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exercised or vice versa depending upon the context of the
duty or power enjoined under the law if the two expressions
are inter-changeable. What is necessary to bear in mind is
that nature of function or power exercised and not the
manner in which it is done. Indeed this Court, while
considering the provisions of Section 30-A of the Karnataka
Act, which enabled a Special Officer appointed to exercise
and perform all the powers and functions of the Committee of
Management or any officer of the Cooperative Society (and
not merely functions), took the view that the administrator
or a special officer can exercise powers and functions only
as may be required in the interests of the Cooperative
Society. In that context, it was stated that he should
conduct elections as enjoined under law, that is, he is to
conduct elections with the members as on the rolls and by
necessary implication, he is not vested with power to enrol
new members of the society. We may add that a Cooperative
Society is expected to function in a democratic manner
through an elected Committee of Management and that
Committee of Management is empowered to enrol new members.
Enrolment of new members would involve alteration of the
composition of the society itself and such a power should be
exercised by an elected Committee rather than by an
administrator or a Committee appointed by the Registrar
while the Committee of Management is under supersession.
This Court has taken the view, it did, bearing in mind these
aspects, though not spelt out in the course of the judgment.
Even where the language of Section 30-A of the Karnataka Act
empowered a special officer to exercise and perform all the
powers and functions of Committee of Management of a
Cooperative Society fell for consideration, this Court
having expressed that view, we do not think, there is any
need to explore the difference in the meaning of the
expressions "have power to exercise all or any of the
functions of the Committee" in the Act and "exercise all or
any of the functions of the Committee" in the Karnataka Act
as they are not different and are in substance one and the
same and difference in language will assume no importance.
What is of significance is that when the Committee of
Management of the Cooperative Society commits any default or
is negligent in the performance of the duties imposed under
the Acts, rules and the bye-laws, which is prejudicial to
the interest of the society, the same is superseded and an
administrator or a Committee is imposed thereon. The duty
of such a Committee or an administrator is to set right the
default, if any, and to enable the society to carry on its
functions as enjoined by law. Thus, the role of an
administrator or a Committee appointed by the Registrar
while the Committee of Management is under supersession, is,
as pointed out by this Court, only to bring on an even keel
a ship which was in doldrums. If that is the objective and
is borne in mind, the interpretation of these provisions
will not be difficult.
Thus, we are of the view that this Court in K.
Shantharaj’s case [supra] took the view that an
administrator or a special officer in the Karnataka Act is
not vested with the power to enrol new members of the
Cooperative Society in this context. While reiterating that
view in regard to the Kerala Act, we afford further reasons
to support the said view and dismiss these appeals, though
for reasons different from those expressed by the High
Court. However, in the circumstances of the case, there
shall be no orders as to costs.
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