High Court Kerala High Court

Board Of Directors Of The Mukkom vs The Joint Registrar Of … on 30 September, 2008

Kerala High Court
Board Of Directors Of The Mukkom vs The Joint Registrar Of … on 30 September, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 23615 of 2008(J)


1. BOARD OF DIRECTORS OF THE MUKKOM
                      ...  Petitioner
2. THE MUKKOM SERVICE CO-OPERATIVE BANK

                        Vs



1. THE JOINT REGISTRAR OF CO-OPERATIVE
                       ...       Respondent

2. THE KARASSERY SERVICE CO-OPERATIVE

3. THE STATE OF KERALA, REPRESENTED BY

4. THE REGISTRAR OF CO-OPERATIVE SOCIETIES

                For Petitioner  :SRI.KRB.KAIMAL (SR.)

                For Respondent  :SRI.P.RAVINDRAN (SR.)

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

 Dated :30/09/2008

 O R D E R
         THOTTATHIL B. RADHAKRISHNAN, J.

  = = = = = = = = = = = = = = = = = = = = = = = =

            W.P.(C).No.23615 of 2008-J

  = = = = = = = = = = = = = = = = = = = = = = = =

     Dated this the 30th day of September, 2008.

                     JUDGMENT

1.The second petitioner and the second respondent

are service co-operative banks registered under

the Kerala Co-operative Societies Act, 1969,

hereinafter referred to as the “Act”. The area of

operation of the second petitioner is the Mukkam

panchayat limits and the area of operation of the

second respondent is the Karassery panchayat

limits, going by the averments in paragraph 1 of

the writ petition. The second petitioner

originally had Thiruvampady, Kodiyathur and

Karassery panchayat limits also within its area

of operation and later, Karassery panchayat was

earmarked as the area of operation of the second

respondent and Thiruvampady and Kodiyathur

panchayat limits became the area of operation of

Thiruvampady Service Co-operative Bank and

WP(C)23615/2008 -: 2 :-

Kodiyathur Service Co-operative Bank. The second

petitioner was registered in 1956 under the Act

and the second respondent, in 1995.

2.The second respondent purchased an item of

property having an extent of 18.980 cents in

Thazhekkode amsom which falls within the area of

operation of the second petitioner. The first

respondent Joint Registrar accorded sanction for

such purchase. The second petitioner’s challenge

to that was repelled by the Division Bench as per

Ext.P4 judgment holding that the area of

operation is a concept different from

establishment of an administrative office and

therefore, the second respondent cannot be

prevented from establishing its head office

within that piece of land despite the fact that

it is within the area of operation of the second

petitioner. It was accordingly held that the

establishment of the head office of the second

respondent within the area of operation of the

second petitioner would not violate Section 7(1)

WP(C)23615/2008 -: 3 :-

(c) of the Act. The Bench made it clear that by

establishing such head office, the second

respondent shall not canvass any business from

the area of the second petitioner and to that

extent, prohibition under Section 7(1)(c) would

certainly apply.

3.In the meanwhile, on 1-3-2006, the first

respondent rejected the request of the second

respondent for amending its bye-laws to include

2.15.980 acres of land also within its area of

operation which extent would also include the

18.980 cents purchased by the second respondent

to house its head office.

4.Ext.P9 evidences that the Government wrote to the

Registrar of Co-operative Societies on 20-4-2007

stating that in view of Ext.P4 judgment holding

that the establishment of the head office of the

second respondent within the area of operation of

the second petitioner would not violate Section 7

(1)(c), no exemption from the operation of that

WP(C)23615/2008 -: 4 :-

provision is required for such purchase. After

that communication dated 20-4-2007, the President

of the second respondent made Ext.P10 request to

the Government supported by the Board’s

Resolution No.XIV dated 28-4-2007 requesting that

the second respondent may be granted exemption

from the provisions of Section 7(1)(c) of the Act

in relation to 2 acres 15.980 cents lying

adjacent to 18.980 cents purchased earlier and on

which the head office stands. Acting on Ext.P10

and overruling the contentions of the second

petitioner, the Government issued Ext.P14 order

dated 4-7-2008 granting exemption from Section 7

(1)(c) of the Act, as sought for by the second

respondent. This is under challenge.

5.In its gist, the contentions in support of the

writ petition are that the second petitioner and

second respondent are primary agricultural credit

societies, having defined areas of operations and

being societies of the similar type, there can be

no overlapping of the areas of operation and that

WP(C)23615/2008 -: 5 :-

such principle has been completely ignored while

passing the impugned Ext.P14 order and that the

request for exemption stood rejected as per

Ext.P9 and in the absence of a specific provision

conferring a power of review, Ext.P14 order ought

not to have been issued acting on Ext.P10

application for review of the decision contained

in Ext.P9; and that in view of Ext.P4 judgment,

the parties are categorically held to the

situation that the permission granted to the

second respondent to house its head office in the

area of operation of the second petitioner is on

the condition that the second respondent shall

not carry on any business activities from the

area of operation of the second petitioner and to

that extent, the provision in Section 7(1)(c)

would certainly apply.

6.The second respondent, in its counter affidavit,

contends that Ext.R2(a) and R2(b), the respective

bye-laws of the second petitioner and the second

respondent, would show that D Class members of

WP(C)23615/2008 -: 6 :-

both the societies are spread over in different

parts of Kozhikode taluk and therefore, there

would virtually be no meaning in saying that the

transactions are to be confined within a

particular area and still further that the

proposal is to have an outlet for transporting

agricultural produce and the marketing complex

and the head office are to be housed in the land

in question, while there is no bus stand at

Karassery, in the area of operation of the second

respondent. It is also contended that the

principle laid down by the Division Bench in

Ext.P4 judgment governs the situation only as

regards the applicability of Section 7(1)(c) and

it does not, in any manner, impair the power of

the Government to grant exemption to the second

respondent from the provision of Section 7(1)(c)

and still further that the impugned order of

exemption is a controlled one, inhibiting the

second respondent from doing any activities in

banking in the area of operation of the second

petitioner.

WP(C)23615/2008 -: 7 :-

7.Section 7(1)(c) of the Act requires that the area

of operation of a society and the area of another

society of similar type do not overlap. There is

no controversy that the second petitioner and the

second respondent are societies of similar type.

It is also not in dispute that the land in

question falls within the area of operation of

the second petitioner.

8.Section 101 of the Act provides that the

Government may, if they are satisfied that it is

necessary to do so in public interest, by general

or special order, for reasons to be recorded,

exempt any society or any class of societies from

any of the provisions of the Act or direct that

such provisions shall apply to such society or

class of societies subject to such modification

as may be specified in the order. The power of

the Government under Section 101 to grant

exemption having been held to be constitutionally

valid in Pampady Rural Co-op. Housing Society v.

WP(C)23615/2008 -: 8 :-

Joint Registrar [1986 KLT 921], it was laid down

in Joint Registrar v. M.R.Cherian and others

[1994 (1) KLJ 603] that the modification that may

be made in exercise of power under Section 101

should be confined to alteration of such

character which keeps the policy of the Act in

tact. While the learned senior counsel appearing

for the petitioners referred to the judgment in

Q.T.L.C.& T.Co-op. Society v. State of Kerala

[1989 (1) KLT 350] laying down that public

interest cannot be the interest of a particular

society and that private interest of a particular

society cannot be considered as a public

interest, the learned senior counsel appearing

for the second respondent referred to the

judgment of the Division Bench in Feroke Service

Co-op. Bank Ltd. v. State of Kerala [1995 (2) KLT

404] holding that the power under Section 101 is,

in no way, limited or curtailed by Section 7(1)

(c) of the Act and in view of the wide power

given to the Government under Section 101, it

cannot be held that in a particular situation

WP(C)23615/2008 -: 9 :-

where public interest demands, Section 7(1)(c)

cannot be relaxed, though the power under Section

101 cannot be used by Government in a whimsical

or arbitrary manner and could be exercised only

in such cases where public interest demands the

exercise of such power.

9.The learned senior counsel appearing for the

petitioners argued that Ext.P10 is essentially an

application for review of the decision contained

in Ext.P9 and that it does not contain any reason

for granting exemption which could be taken

cognizance of, for the purpose of exercise of

power under Section 101 of the Act and that the

reasons stated in Ext.P12; in particular, the

nature and lie of the property and the matters

relating to the availability of road and river

frontage etc., are not matters reflected in

Ext.P10, wherein all that is stated is that the

exemption is required for providing legal

protection for the building that is proposed to

be put up. It is also, pithily, pointed out that

WP(C)23615/2008 -: 10 :-

no public interest is ever demonstrated by the

facts of the case in hand which, at the best,

shows only a commercial interest of the second

respondent, which is only its private interest

and that the Government have acted in excess of

authority under Section 101 of the Act.

10.The learned senior counsel appearing for the

second respondent argued that the availability of

power under Section 101 is beyond dispute and it

has been fairly established that public interest

is a concept that takes into consideration

different aspects and that the requirement of

movement of agricultural produce and other

materials are matters of public interest,

particularly when the entire area of operation

of the second respondent is without any bus stand

and access for appropriate movement of goods. He

accordingly pointed out that the Government have

rightly exercised the authority. It was further

argued that the pleadings in the writ petition do

not disclose that the impugned decision has, on

WP(C)23615/2008 -: 11 :-

facts, in any manner, impaired the existing

activities of the petitioners and no case of

injustice is, thus, demonstrated, warranting

interference in exercise of jurisdiction under

Article 226 of the Constitution of India.

11.The power under Section 101 of the Act, as

enunciated in Feroke Service Co-op. Bank Ltd.

(supra), was rendered taking note of the decision

of the Apex Court in Registrar, Co-operative

Societies v. K.Kunjambu {AIR 1980 SC 350) laying

down that provision for such relaxation is made

to enable the Government to relax the occasional

rigour of the provisions of the Act and to

advance the object of the Act. The Division Bench

laid down as follows:

“As the power given to the Government
under S.101 of the Kerala Co-operative
Societies Act can very well be exercised
by the Government to advance the policy
and objects of the Act and to safeguard
public interest, it is not possible for us

WP(C)23615/2008 -: 12 :-

to hold that the power under S.101 is in
any way limited or curtailed by S.7(1)(c)
of the Act. As wide power is given to the
Government under this Section taking into
consideration the overall public interest
it cannot be held that in a particular
situation where public interest demands
S.7(1)(c) cannot be relaxed. However, we
make it clear the power under S.101 cannot
be used by the Government in a whimsical
or arbitrary manner. Only in such cases
where public interest demands that the
said power can be exercised.”

12.Considering the scope of Section 101 of the Act,

it was laid down in Q.T.L.C.& T.Co-op. Society

(supra) as follows:

“As per that Section the Government
are given power inter alia to exempt any
society or class of societies from any of
the provisions of the Act if they are
satisfied that it is necessary so do to
in the public interest. It means that for
exercising the power u/s.101 of the act,
the Government must be satisfied that
there is necessity to invoke the

WP(C)23615/2008 -: 13 :-

provisions of that Section in the public
interest. Public interest cannot be the
interest of a particular society. The
fact that a particular society is running
at a loss is no ground to invoke the
powers u/s.101 of the Act. Nor can that
be treated as a ground for exempting it
from the provisions of the Act in public
interest.”

13.Dilating on Section 7(1) of the Act, it was

further laid down in Q.T.L.C.& T.Co-op. Society

(supra) as follows:

“S.7(1) of the Act lays down five
conditions to be satisfied for a society
to get registration. One of the conditions
is that the area of operation of the
proposed society and the area of operation
of another society of similar type should
not overlap. This condition is a condition
precedent for a co-operative society to
come into existence. A co-operative
society which has come into existence
after complying with the above conditions
cannot be allowed to violate the same. The

WP(C)23615/2008 -: 14 :-

power of the Government u/s. 101 should
not be exercised in such a manner as to
nullify the very condition, the compliance
of which is mandatory for a society to
come into existence. The power of the
Government cannot be exercised to defeat
such a salutary condition.”

14.Adverting to the various clauses in Exts.R2(a)

and R2(b) bye-laws of the second petitioner and

the second respondent respectively, it can be

seen that their objects include provisions for

collecting the produce of the members for sale,

for purchase etc. and there can be no ground to

state that the second petitioner does not have,

as its objects, the marketing of agricultural

produce. Ext.P10 does not show that the second

respondent has purchased any item of property

other than the 18.980 cents which it purchased

for housing its head office, which purpose was

recognized in Ext.P4 judgment as one not

impinching Section 7(1)(c) of the Act. Beyond

that, the request in Ext.P10 does not reflect

WP(C)23615/2008 -: 15 :-

anything other than the second respondent’s

commercial interests, which essentially are its

private interests. Though Ext.P14 states that the

agricultural marketing complex could be put up

with funds provided by NABARD, such funds cannot

be utilized beyond the area of operation of a

society. The statements in Ext.P14 regarding the

road, river, bus stand etc. relatable to the

land, are not part of the materials reflected in

Ext.P10. It is not in dispute that the area of

operation of the second petitioner, at the time

of its registration in 1956, was spread over the

area of four panchayats, Mukkam, Thiruvampady,

Kodiyathur and Karassery and later, Thiruvampady

and Kodiyathur became the area of operation of

Thiruvampady Service Co-operative Bank and

Kodiyathur Service Co-operative Bank on their

formation and Karassery became the area of

operation of the second respondent. As

discernible from the preamble of the Act, the

enactment is made with a view to provide for the

orderly development of the Co-operative sector in

WP(C)23615/2008 -: 16 :-

the State of Kerala. Competition between co-

operative societies of same type, on account of

the overlapping of their areas of operations

cannot be held conducive for the orderly

development of co-operative movement. This is the

solemn object of Section 7 of the Act as held in

Q.T.L.C.& T.Co-op. Society (supra), wherein it

has been categorically laid down that the

legislative direction contained in Section 7

cannot be nullified or defeated by the

Government. This does not necessarily mean that

Section 7(1)(c), in any manner, curtails the

power under Section 101. That is why the Division

Bench said in Feroke Service Co-op. Bank Ltd.

(supra) that the power under Section 101 is wide

and the Government can relax, in a particular

situation, even the provisions contained in

Section 7(1)(c), on taking into consideration the

overall public interest, however that such power

can be exercised only in cases where public

interest demands. With this in view, it cannot

but be held that the impugned decision has been

WP(C)23615/2008 -: 17 :-

rendered in violation of the interest of the

second petitioner and has been made not on any

ground referable to public interest but solely on

the basis of the private interest of the second

respondent. The impugned action is contrary to

the basic principles of co-operation which ought

to be the guiding beacon in exercise of power

under Section 101 of the Act because equity,

social justice and economic development as

envisaged by the directive principles of State

Policy of the Constitution of India are the

objects sought to be achieved by the enactment of

the legislation in hand; for the orderly

development of the co-operative sector in the

State, by organizing the co-operative societies

as self governing, democratic institutions, going

by the preamble to the Act.

For the aforesaid reasons, the impugned order is

contrary to law and has been issued in excess of

authority under Section 101 of the Act and is,

therefore, unconstitutional and void. It is

WP(C)23615/2008 -: 18 :-

declared so. Resultantly, this writ petition is

allowed quashing Ext.P14. No costs.





                    THOTTATHIL B. RADHAKRISHNAN,
Sha/290908                     JUDGE.