Thulasidas, J.

The 2nd respondent in O.P.No.9596 of 1992 is the appellant and in this appeal, he has challenged the order passed on CM.P.No.16686 of 1992 dated 26-8-1992.

2. RAIDCO (Regional Agro-Industrial Development Co-operative Ltd.) is a society registered under the Co-operative Societies Act. under byelaw No.20 marked as Ext.P2 in the O.P. the management of the society is vested in a Board of Directors consisting of 11 members of whom nine are elected directors and two ex-officio directors. Eight among them are to be elected from among the delegates of the affiliated societies (A class members) and one director from among the individual members (B class members). The ex-officio directors are the Project Officer, Small Farmers Development Agency, Cannanore, and the President, Cannanore District Co-operative Central Bank Ltd., Cannanore. The last election to the Board of Directors was held on 12-8-1990. The term of the Board of Directors was held on 12-8-1990. The term of the Board of Directors was three years. One of the directors namely K.V. Moosankutty, died on 27-12-1991 and the resultant vacancy had not been filled up.

3. The appellant was stated to have received a report from the 3rd respondent in the O.P., the Joint Registrar of Co-operative Societies Cannanore, on 22-7-1992 to the effect that five of the elected directors had ceased to be members of the Board under R.46(f) of the Kerala Co-operative Societies Rules (for short, the Rules), that one Shri M.C. Jose, another elected member, had sent him his resignation, that following the appointment of an Administrator to run the District Co-operative Central Bank, its President had ceased to be an ex-officio director of the Board, and therefore, its membership had been reduced to three which could not constitute the quorum of six as provided in S.28(5) of the Kerala Co-operative Societies Act, (for short, the Act). The management of RAIDCO could not therefore be lawfully, and effectively conducted. In the above circumstances, he found it necessary to invoke his jurisdiction under S.33 of the Act and passed Ext.P1 by which he appointed the 3rd respondent as part-time Administrator for a period of six months or till an elected Board took charge whichever was earlier. This was done, according to him, "to remove the administrative stalemate in the society". That order is under challenge in the O.P. on several grounds whose tenability and correctness do not fall for consideration now in this appeal.

4. Along with the O.P., C.M.P.No.16686 of 1992 was filed for stay of operation of Ext.P1. The learned judge heard counsel and the Government Pleader who submitted that the Administrator had already taken charge which submission was disputed by counsel for the petitioner. By order dated 28-7-1992, interim stay was granted "on condition that the order will take effect only if the administrator has not taken charge by now".

5. On behalf of the 1st respondent, (appellant herein), 3rd respondent in the O.P. filed counter-affidavit in the above C.M.P. denying the allegations. The 4th respondent who was not impleaded in the C.M.P. also filed a counter-affidavit. The matter was heard and the impugned order was passed resting mainly upon S.34 of the Act. According to the learned judge, from the facts and circumstances, "the only conclusion possible is that the charge of the office of the society including records and the properties had not been handed over to the administrator and the same continued with the managing committee. The Administrator is not competent to assume charge of the office without an order from the Magistrate obtained under S.34(1) of the Act. The so-called assumption of charge is illegal and inoperative" and directed that "the stay order will be in operation till the disposal of the Original Petition".

6. Along with the appeal, the appellant filed C.M.P.No.6762 of 1992 for stay of operation of the impugned order. This court gave an interim direction that "the respondents should not take or implement any policy decision, both financial and administrative, till a final decision is taken on the C.M.P."

7. The 1st respondent filed counter affidavit for himself and on behalf of others, where he was re-focused the contentions that have been raised in the O.P. Besides, he has also challenged the maintainability of the appeal. We shall refer to the points raised later at the appropriate stage.

8. Heard.

9. It was submitted that the impugned order, "Substantially affects and touches upon the substantial rights and liabilities of the parties and if it is allowed to continue, the administration of RAIDCO would be seriously prejudiced." It was pointed out that the impugned order has declared the law regarding the scope and applicability of S.34 of the Act in the matter of taking charge of the management of the committee by a new elected Committee or Administrator. This is of great importance and has serious implication and the appeal is maintainable, as per the dictum in K.S. Das v. State of Kerala (1992(2) KLT 358). This contention, no doubt, was disputed by counsel for the respondents who submitted that the order under challenge does not fall under the category of orders referred to in K.S.Das decision (1992 (2) KLT 358) against which no appeal would lie. All that the learned judge did was to find on the materials which he examined, that the 3rd respondent Administrator, had not assumed charge, that the Administration of RAIDCO continued with the Managing Committee and in consonance with this finding, stayed the operation of Ext.P1 till the disposal of the Original Petition. Substantial questions had not been considered or decided and no prejudice had been caused to either party. The appeal, therefore, is not legally maintainable.

10. In our view, the additional Advocate General is right to submit that the order challenged substantially affected and has couched upon the substantial rights and liabilities of the parties and therefore, it could be challenged in appeal as per the law laid down by the Full Bench in the decision above-mentioned. The learned judge was seen to have examined the scope and applicability of S.34 of the Act and has expressed a view the correctness of which has been assailed. Surely, the order has rendered Ext.P1 inoperative, at least temporarily and according to the Additional Advocate General, it has caused administrative stalemate in RAIDCO which is a premier co-operative society in the State. In our view, the challenge to the maintainability of the appeal is without substance.

11. It seems to us that in the nature of the contentions raised by the parties, it would have been appropriate for the learned judge to have considered whether a prima facie case had been made out by the petitioners and whether it was just, proper and expedient to stay the operation of Ext.P1 pending disposal of the O.P. The specific case put forward in the counter-affidavit filed in the above C.M.P. was that one of the elected directors died that another director tendered his resignation, five directors had ceased to be members by operation of Rule 46(f) of the Rules and one ex-officio director ceased to be since the co-operative bank of which he was the President had been taken over by the Administrator. Therefore, there were only two elected directors and one ex-officio director and the required quorum of six was unavailable. These aspects were not very seriously challenged. No doubt, a contention had been advanced on the basis of the 2nd proviso to R.44-A and the proviso to R.46(f) and it was urged that the five elected directors continued to be members of the Board in spite of Ext.P1 since their delegation had not been withdrawn by the committees of the society which they represented. They also disputed the allegation regarding the resignation from the Board by one elected member. With regard to the President of the Co-operative Bank who is an ex-officio member, it was submitted that the fact that administration of the Co-operative Central bank was taken over by the Administrator did not take away his right to represent the Bank on the Board. According to the Additional Advocate General, the submission rested upon R.44-A and R.46(f) of the Rules is untenable since on the date of the impugned order, namely, 24-7-1992, those provisos had been repealed and were unavailable to defend their membership. We think, there is force in this submission. But, for the purpose of this appeal, we do not wish to say anything more on these disputed questions since they properly fall for consideration in the O.P. As rightly submitted, the Board now consists of two elected directors and one ex-officio director and that these members cannot constitute the quorum for the meeting of the board under S.28(5) of the Act. This was a situation which would have serious repercussion on the administration of RAIDCO. The 3rd respondent was right to bring it to the notice of the appellant who in our view, prima facie, was justified to invoke his jurisdiction under S.33 of the Act to save RAIDCO from a serious administrative stalemate.

12. It is submitted that even in passing Ext.P1, the procedural requirements had not been satisfied and therefore, the order is invalid and could not be sustained. This contention seems to us to be based upon the first proviso to S.33 of the Act, which provides that "before making the order, the Registrar shall publish a notice on the notice board of the head office of the society inviting objections to the making of the order within a period specified in the notice and consider such objections. But the second proviso provides that "it shall not be necessary to publish such notice in cases where the Registrar is satisfied that it is not reasonably practicable to do so." In Ext.P1 the appellant had stated:

"In exercise of powers conferred under S33 of KCS Act, Joint Registrar of Co-operative Societies, Kannur, is hereby appointed as part time administrator of Regional Agro-Industrial Development Co-op. Ltd., C-361, Kannur, for a period of 6 months or till an elected board take charge whichever is earlier. The part time administrator will take charge immediately and take further urgent steps to constitute a new elected committee at the earliest, as administrator cannot be a long time substitute for a democratically constituted committee in a co-operative institution."

We are not satisfied that he acted mindlessly and in disregard or in violation of the requirement regarding the publication of notice. In view, reliance was rightly placed upon the decision reported in Balakrishnan Nair v. State of Kerala (ILR 1973 (II) Ker. 511) where it was observed.

"There is no force in the contention that S.32(3) of the act is violative of Art.14 of the Constitution since it confers an arbitrary and uncanalised power on the Registrar to supersede a committee of a society even without giving an opportunity to the committee to state its objections. The legislature while conferring the power on the Registrar under S.32(3) has taken due care to provide necessary guidelines by laying it down that the said power shall be exercised only in cases where the Registrar is of the opinion that the circumstances of the case are such that it is not reasonably practicable to give it an opportunity to the committee to state its objections. It cannot, therefore, be said that an arbitrary or uncanalised power has been conferred by the section. No doubt, the decision as to whether the power is to be exercised or not has been left to the subjective opinion of the Registrar but it has to be remembered that the power under the Section is intended to be used in cases of extreme urgency and necessarily some officer has to be invested with authority to take a decision as to whether there are circumstances warranting the exercise of the power. The legislature having chosen to confer the said power on a responsible officer, namely the Registrar, it cannot be said that S.32(3) suffers from the vice of arbitrariness. It is now well established that it is open to the legislature to lay down the particular procedure to be followed in the matter of the exercise of a power conferred by the statute and the rules of natural justice will have application only subject to such special provision made by the legislature, The provision in a statute which empowers an emergent action to be taken in public interest without giving a notice or hearing to a private party who may be affected thereby is not liable to be struck down by the court on the ground that the principles of natural justice are violated".

We are in respectful agreement with the above observations even though they were made in relation to an order passed under S.32 of the Act. The contention as regards the non-observance of the procedural requirements prima facie, does riot seem to be sound.

13. As stated already, Ext.P1 was passed on the basis of the letter the appellant had from the 3rd respondent in the O.P. who had forwarded to him the letters he had received from his counter parts at Trichur. Palakkad and Kozhikode. Reportedly, the 3rd respondent was in Trivandrum on official work on the 23rd and on he received a copy of Ext.P1 from the appellant and immediately he rushed back to Cannanore. On 25-7-1992 at about 10-30 a.m. he went to the office of the RAIDCO, met the General Manager (4th respondent in the O.P.), gave him a copy of EXt.P1 and took charge as Administrator. Reportedly, the General Manager refused to hand over the minutes book of the society and therefore, he had to open a new minutes book where he had recorded the fact of his having taken charge on the forenoon of 25-7-1992 which fact was also got published on the notice board. Information was also conveyed to the appellant as also the General Managers of the District Co-operative Banks at Kannur, Kozhikode, Palakkad, Thiruvananthapuram, Kasaragod and Thrissur. Leading newspapers also published the news item. 26th was Sunday and on 27th, he went to the office again when he found some employees to have organiseddharna protesting against his appointment and taking charge. Nevertheless, he attended to his work till evening. On that day, General Manager was not present in the office. On 28-7-1992 morning he reportedly, got a threatening call from an Ex -M.L. A. and therefore he filed a complaint before the Superintendent of Police, Cannanore seeking police protection. He attended duty even on the midst of protest and threats from those who did not want him to function as administrator.

14. No doubt, his contentions have been denied and it was submitted that on the date the O.P. was filed, he had not taken charge as administrator pursuant to Ext.P1. Neither the Chairman a or the committee had handed over charge of the society whose administration continued with the Board as it existed. It is clear that his specific case is that he had assumed charge as administrator. There is no provision in the Act that when an administrator is appointed, he could start to function only after charge of office has been handed over to him and act otherwise. As far as we could see, the only provision where mention is made about taking charge is in R.38 which deals with cases coming under S.28 of the Act. That provision indeed, is inapplicable to the facts of this case. The administrator is entitled to assume charge even without a formal handing over of the same either by the Chairman or the managing committee. dnder R.47 of the Rules, the custodian of the records and the properties of the society is its chief executive and not either the Chairman or the Committee. There is no procedure prescribed for handing over of records and properties to the administrator by the committee or the Chairman, He could assume charge on the strength of the order of his appointment by the Registrar, the appellant, who is the competent authority.

15. In our view, counsel for the appellant is right to submit that the learned judge was wrong to have tested the case of the parties on the anvil of S.34 of the act, which has no application to the facts of this case. There is a distinction between taking charge of the management of the society and taking over its records and properties. Assumption of charge of the records and properties and where a situation as contemplated in S.34 arises, resort could be had to get the records and properties by a warrant obtained from a Magistrate, on an application to be filed under sub-section (1) of the said section. In our view, the learned judge was not right to hold "assumption means taking charge of the office inclusive of the records. That can be done only after following the procedure contemplated in S.34 of the Act.". The case of the 3rd respondent that he assumed charge pursuant to Ext.P 1 on 25-7-1992 could not prima facie be disbelieved, merely because the General Manager did not hand over the minutes book or the records of the society or that the managing committee did not formally handed over charge to him. In our view, S.34 of the Act had been misapplied.

16. It appears, there was justification to pass Ext.P1 to save R AIDCO from a serious administration impasse. The order is not prima facie arbitrary at illegal. Its operation ought not to have been stayed. The order challenged in this appeal in our view, is unsustainable and it is accordingly set aside. The Writ Appeal is thus allowed.