FAZALUDDIN HAQUE Vs. STATE OF KERALA
HIGH COURT OF KERALA
STATE OF KERALA
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(1.)The Kerala State Handloom Weavers, Cooperative Society Limited (Hantex for short) is a central society as defined in S.2 (d) of the Kerala Cooperative Societies Act, hereinafter referred to as the Act. Hantex is the respondent No.4 in O.P. 16559/1992 and respondent No. 2 in O. P. 16672/1992. The petitioner in O. P. 16559/92 is a member of the Paroor North Handloom Weavers, Cooperative Society Ltd., Kollam. The petitioners Nos. 1 and 2 in O. P. 16672/92 are members of two other primary societies affiliated to Hantex. The respondent No. 1 in both the petitions is the State of Kerala. The Registrar of Cooperative Societies is the respondent No. 2 in O. P. 16559/92. The respondent Nos. 5 to 10. in O. P. 16559/92 and respondent Nos. 3 to 9 in O. P. 16672/92 are members of the Board of Directors appointed by the Government of Kerala by the G. O. (Rt.) No. 1127/92/ID, dated 24th November 1992 (Ext. P-2 in O. P. 16559/92 and Ext. P-3 to O. P. 16672/92). By notification No. 394/C2/ID, dated 3rd October 1992. (Ext. P-1 to O. P. 16559/92 and Ext. P-1 to O. P. 16672/92) purportedly issued under S.101 of the Act, the Government of Kerala "exempted" Hantex from the provisions of S.28, 29, 30 and 31 of the Act and vested the powers of the general body of Hantex in the Board of Directors appointed under the aforesaid order, dated 24th. November 1992. The notification of the Government of Kerala No. 39439/C2/92/ ID dated 3rd October 1992 and the order No. 1127/92/ID, dated 24th November 1992 are referred to in this judgment as Exts. P-1 and P-2 respectively.
(2.)Counsel for the petitioners urged the following points:
(i) The Government of Kerala whose authority is limited to exempting societies from, the application of the provisions of the Act, has exceeded its authority by vesting the powers of the general body of the society under S.29 and 30 of the Act in the Board of Directors.
(ii) What the Government has done by the impugned order does not constitute exemption of Hantex from the provision of the Act . Therefore the impugned orders are ultra vires of the Government's authority,
(iii) The Supreme Court's order, dated 13th October 1992 in S.L.P. (C) Nos. 6396, 6682, 6935 and 9989 of 1992 and Writ Petition (C) No. 379 of 1992 directing the Government of Kerala and the Registrar to complete the elections to all apex and central societies before 13th April 1993 is violated by the impugned orders. Therefore the impugned orders are illegal.
(iv) S.101 of the Act has two pre-requisites. The Government must be satisfied that public interest demands resort to S.101 and reason shall be recorded. Neither of these are fulfilled. Therefore the impugned order, dated 3rd October 1992 is vitiated by abuse of discretion.
(3.)I will briefly set out in Para.4 below the general principles of administrative law applicable to delegated legislation. In paragraphs that follow I will apply these principles to these cases and consider whether the impugned orders are valid.
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