High Court Kerala High Court

O.Devassy vs Joint Registrar Of Co-Operative on 22 August, 2008

Kerala High Court
O.Devassy vs Joint Registrar Of Co-Operative on 22 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 22606 of 2007(N)


1. O.DEVASSY,S/O.OUSEPH,AGED 70 YEARS,
                      ...  Petitioner
2. V.M.HAMZA,S/O.MUHAMMED,
3. DEVASSY JOSEPH,S/O.JOSE,
4. N.A.IBRAHIMKUTTY,S/O.AHMED,AGED 70,
5. MOLLY VARHGESE,W/O.VARGHESE,AGED 48,

                        Vs



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

2. THE RETURNING OFFICER,

3. THE KERALA STATE CO-OPERATIVE HOUSING

                For Petitioner  :SRI.JOHN JOSEPH VETTIKAD

                For Respondent  :SRI.A.K.CHINNAN

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :22/08/2008

 O R D E R
                        PIUS C. KURIAKOSE, J.
               -----------------------------------------------
                 W.P.(C)Nos. 22606 & 24584 OF 2007
               -----------------------------------------------
                 Dated this the        day of July, 2008

                            J U D G M E N T

The petitioners in WP(C). No. 22606 of 2007 are five members of

the Managing Committee of Kunnathunadu Taluk Housing Co-operative

Society Ltd. No. 307 (hereafter referred as the Society). First

respondent in that writ petition is Joint Registrar of Co-operative

Societies (General), second respondent is the Returning Officer and

the third respondent is the Kerala State Co-operative Housing

Federation Ltd. The petitioner in WP(C).24584 of 2004 is also an

elected member of the Managing Committee of the same Society and

the respondents therein are the Joint Registrar (R1), the Society (R2)

and the Administrator appointed for the Society (R3). The Managing

Committee of the Society has been ordered to be superseded by the

first respondent and the order of the supersession is produced as

Ext.P8 in WP(C). No. 22606 of 2007 and as Ext.P3 in WP(C). No.

24584 of 2007.

2. I shall refer to the facts as they are stated in WP(C). No.

22606 of 2007. The Society is a primary society affiliated to the

Kerala State Housing Federation Ltd. The Society was registered in

the year 11-1-1973 and at present the Society has 2835 members.

WP(C)N0s. 22606 & 24584/07
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The share capital of the Society is Rs.49,99,620/- and its working

capital is Rs.4,73,07,053.75. The society was adjudged as the best

primary society in Ernakulam District by the Apex Society. Exts.P1

and P1(a) certificates of merit issued by the Apex Society on 12-7-

2003 and 28-7-2004 are relied on in this context. Durind the last 10

years the Society has advanced a sum of Rs.14,03,49,250/- in 2317

loans. The present Managing Committee was elected on 12-8-2002.

Since he terms of the Committee was due to expire a resolution was

adopted on 28-4-07 to conduct election to the Managing Committee on

29-7-2007. Request was made to the Election Commission to take

necessary steps for conduct of election. The Election Commission has

published time schedule Ext.P2 dated 19-6-2007. The election is to

be held for electing members to the Managing Committee. Pursuant

to Ext.P2 19 candidates submitted nomination papers and after

withdrawal only 9 candidates remained in the list. Ext.P3 notice dated

13-7-2007 has been published by the Returning Officer. Referring to

Rule 35(h) of the KCS Rules the petitioners claimed that all the 9

candidates in Ext.P3 are entitled to be declared as elected before 29-7-

2007. Ext.P4 copy of letter dated 9-2-2007 was issued by the first

respondent Joint Registrar on the basis of an urgent inspection

conducted in the Society by the Unit Inspector. Under Ext.P4 the

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Society is directed to cure certain defects pointed out in the report of

the Inspector. To Ext.P4 the President of the Society submitted Ext.P5

detailed reply explaining the steps which had been taken for curing the

defects pointed out and also stating that certain defects have already

been cured. The petitioners submit that for the past many years the

Board of Directors of the Society consists entirely of persons owing

allegiance to political parties opposed to the present ruling front. In

the present election also the 9 candidates who are entitled to be

declared elected owe allegiance to political parties opposed to the

present ruling front. The petitioners point out that the President of

the Society is also a member of the Board of Directors of the Apex

Society, the Kerala State Co-operative Housing Federation in his

capacity as a representative of the primary society. It is alleged that it

was with the intention of somehow wresting power from the petitioners

by superseding the elected Managing Committed consisting mainly of

the petitioner and to appoint an administrator and thereby stall the

election process which are already started that the inspection was

conducted unauthorisedly by the Deputy Registrar of Co-operative

Societies (Vigilance, Ernakulam) which was challenged in this court by

filing WP(C). No. 18570 of 2007. It is submitted that the enquiry

conducted was in clear violation of sections 65 and 66 of the KCS Act

WP(C)N0s. 22606 & 24584/07
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and Rule 66 of the KCS Rules. Another intention was to capture power

in the Apex Court by destroying the quorum in the Apex Society which

can be done by removing the President of the Society, an object which

can be achieved only superseding the Society. On receiving show

cause notice under section 32(1) requiring them and other Managing

Committee members as to why the Managing Committee members

should not be superseded the petitioners approached this Court by

filing WP(C). No.19153 of 2007. This Court disposed of that writ

petition directing the Registrar to consider the objections filed by the

petitioners and to pass final orders only after giving the petitioners an

opportunity of being heard. Ext.P6 is true copy of the show cause

notice and Ext.P7 is true copy of the reply submitted by the petitioners

to Ext.P6. As apprehended the petitioners committee is now

superseded and Ext.P8 is the supersession order. According to the

petitioners the point of time at which Ext.P8 has been issued, the

undue haste and the manner in which the same has been issued will

demonstrate the mala fides, the ulterior motives and also the

arbitrariness which taint Ext.P8. The petitioners submit that Ext.P8 is

based on a report allegedly submitted by the Deputy Registrar of Co-

operative Society (Vigilance) and that the said report is clearly

violative of sections 65 and 66 of the KCS Act and Rule 66 of KCS

WP(C)N0s. 22606 & 24584/07
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Rules. Copy of the report have never been served on the petitioners

nor was the contents of the reveal to the petitioners. The report has

been made in violation of the statutory rules and behind the back of

the petitioners. Ext.P8 order passed on the basis of such a report is

illegal and is liable to be quashed. The following were the prayers in

WP(C). No. 22606 of 2007 as filed it originally.

i. Issue a writ of certiorari or direction in the nature thereof
calling for the records relating to Ext.P8 and quash the
same.

ii. Direct the respondents to forbear from interfering n the
election process for the conduct of the election to the
members of the managing committee of Kunnathunadu
Taluk Housing Co-operative Society Ltd. No.307.

On considering WP(C). No. 22606 of 2007 for admission this court

passed on 24-7-2007 the following interim order.

“Admit.

2. Learned Special Government Pleader for Co-operation
accepts notice for respondents 1 and 2. Issue notice to
respondent No.3 by speed post with acknowledgment due
returnable within ten days.

3. Heard learned counsel for the petitioners and learned
Special Government Pleader.

4. Ext.P8 order passed under Section 32(1) of Kerala Co-
operative Societies Act is impugned in this writ petition by the
Board of embers of the Kunnathunadu Taluk Housing Co-

operative Society. It is contended by the petitioners that Ext.P8
order has been passed hastily with ulterior motives. Ext.P2
notification issued by the State Co-operative Election

WP(C)N0s. 22606 & 24584/07
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Commission on June 19 2007 will show that the election process
to the society had already commenced. Preliminary voters’ list
was published on July 2, 2007. As per the schedule all other
proceedings except polling is over. Voting is scheduled to be
held on July 29, 2007, if it becomes necessary. It is brought to
my notice that polling may not be necessary at all, since only
nine candidates remain in the fray for the nine seats in the
Board. The specific contention of the petitioners is that the
entire exercise by the department is aimed at nullifying the
nomination of the delegate of the society to the Kerala State
Co-operative Housing Federation, respondent No.3 herein.

5. Learned Special Government Pleader submits that the
Administrator had already assumed charge on the next day of
the order viz. July 17, 2007. It is also submitted by the learned
Special Government Pleader that she has been informed today
that the Administrator has already initiated action to revoke the
decision of the Board nominating its delegate to the Federation.
Learned counsel for the petitioners asserts that no such order
has so far been served on the Society or its President till now.

Having carefully perused the impugned order and having
heard learned counsel for the parties, I am of the view that the
Administrator who has reportedly assumed charge (which has
not been disputed by the petitioners) shall ensure that the
election process which has already commenced, is not disrupted
in any manner. The Administrator and respondent No.2 shall
ensure that the process of election in the society is completed
and results are declared as per the schedule notified by the
Election Commission in Ext.P2. Administrator shall only attend
to the day today affairs of the Society. He shall not take any
action to revoke the decision of the Society nominating its
delegate to the Kerala State Co-operative Housing Federation,
Kochi without obtaining orders from this Court.

The petitioners produced Exts.P10 toP13 and got the writ petition

amended by incorporating additional paragraphs 19 to 22, additional

grounds 18 to 22 and additional prayer 1(b) as follows:

WP(C)N0s. 22606 & 24584/07
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“1(b).Issue a writ of certiorary order or direction in the nature
thereof and calling for the records relating to Ext. P10 and
quashed the same.

Amendment was sought for on the reason that though the first

petitioner was permitted pursuant to the interim order dated 24-7-07

to participate in the executive committee meeting of the third

respondent Federation held on 27-7-07 and 30-7-07 after the

completion of the meeting on 30-7-2007 the Managing Director in

charge of the third respondent Federation handed over a copy of the

communication dated 26-7-2007 informing the petitioner that

membership of the first petitioner ceased to exist from the date when

the administrator took charge in the Society. Ext.P10 is copy of the

said letter dated 26-7-2007 issued by the third respondent. Ext.P11 is

true copy of the notice dated 26-7-2007 issued by the third

respondent regarding meeting of the executive committee to be held

on 8-8-2007 at Thiruvananthapuram. In Ext.P11 item No.22 in the

agenda was regarding implementation of this court’s interim order

dated 24-7-2007. It was stated in the amendment application that

pursuant to the interim order of this court result of the election was

declared on 29-7-007 and the administrator entrusted the charge of

the Society to the newly elected committee on 31-7-2007 and on the

same day the newly elected committee was convened and the

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committee elected the first petitioner himself as the delegate of the

Society to the Federation. Ext.P12 is true copy of the covering letter

sent to the Federation along with copy of the resolution of the society

dated 31-7-2007. It is stated further that the committee of the Co-

operative Housing Federation resolved that the decision of the society

is without consulting the federation is wrong and that in view of the

interim order of this Court there is nothing wrong in conducting

election. Ext.P13 is relevant portion of the minutes of the meeting of

the Board of Directors of the Co-operative Housing Federation. The

following are the prayers sought for in WP(C). No. 24584/07:

i. Issue a writ of certiorari to quash Ext.P3.

ii. Issue a writ declaring that Ext.P3 order has been passed in
total violation of the requirements of law including the
requirement of consultation and hence the order is bad.

Iii. Issue a writ declaring that Ext.P3 has been passed for other
oblique reasons which is no justification for invoking the
power under section 32 of the KCS Act.

The first respondent Joint Registrar has filed counter affidavits in both

the cases. In WP(C). No. 22606 of 2007 while it is not disputed that

the committee of the Society took steps for conduct of elections and

that a Returning Officer was appointed by the Election Commission in

that regard and also that the said Returning Officer initiated action it is

submitted that when inspection conducted in the Society by the Deputy

WP(C)N0s. 22606 & 24584/07
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Registrar of Co-operative Societies (Vigilance) as a part of her duty on

the 24th, 25th, 26th, 28th and 29th of May, 2007 it was found that the

committee of the Society had committed serious irregularities in the

working of the Society and submitted a report in that regard. It is

pointed out that the first petitioner who is the President of the Society

has given to himself three house construction loans of Rs.1 lakh, Rs.3

lakhs and Rs.3,50,000/- respectively on 28-12-1996, 30-10-2000 and

22-10-2005. The first loan was given to him for the construction of a

residential house on his house plot in Vengoor Village and was to have

been repaid within a period of 15 years. The first petitioner did

construct house on the property by utilising the loan amount. But he

repaid the loan after a period of 4 years of the drawal of the loan and

within even closed the loan account. The second loan application was

sanctioned to him by a circulated resolution and the entire loan amount

was released to him in one instalment (contrary to the practice of

releasing housing loan amounts in instalments according to the

progress of the construction). This loan was repaid by the first

petitioner in full on the 5th year though the period of the loan was 15

years. The third loan application was submitted by the first petitioner

at a time when himself was the President of the Committee and was

sanctioned to him by a circulated resolution. It is pointed out that

WP(C)N0s. 22606 & 24584/07
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along with the subsequent loan application the first petitioner had not

submitted documents which are otherwise required for sanctioning of

housing loans. It is pointed out that as per the rules of the Apex

Society, plan, estimate, location sketch, encumbrance certificate,

possession certificate, income certificate, title documents of the plot

are all to be submitted. Such documents were submitted by the first

petitioner only in connection with the first loan. It is pointed out that

the second and third loans were regarding construction on the very

plot and in which he constructed house utilising the first loan and since

he has not constructed any house as per the loan amount drawn by

him as per the second and third applications, it is clear that the entire

loan amount drawn under the second and third loans was misutilised

by him. It is pointed out that as per byelaw17 adoption of resolution

by circulation is to be resorted to only in emergencies. The non-

verification by the Committee as to whether houses were constructed

by the first petitioner utilising the loan amount is a major lapse. It is

then contended that the second petitioner who was also a member of

the Committee was sanctioned a house repair loan of Rs.62,500/- on

27-11-2007 which had been kept in arrears by him till 18-12-2006, but

on 19-12-2006 he closed that loan and immediately thereupon applied

for another loan of Rs.1,10,000/- for construction of a house. Though

WP(C)N0s. 22606 & 24584/07
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the purpose of the loan has not been specified in the loan application

the Committee sanctioned the loan and released the amount in one

instalment. Second petitioner did not construct any house utilising this

amount. In this case also he had not submitted the necessary

documents and thus it can be seen that the committee was negligent in

the performance of their duties in the sanctioning and utilising of the

loan.

It is then pointed out in the counter that while as per byelaw 26

of the Society the maximum cash balance which can be retained in the

Society by the Secretary is only Rs.50,000/- the amount far in excess

of Rs.50,000/- was retained in the Society by the Secretary. But the

Committee never took any action against the Secretary for recovery of

penal interest on amount kept in excess of the limit. It is pointed out

that an evening branch of the Ernakulam District Co-operative Bank is

functioning adjacent to the Society and hence there is absolutely no

justification for keeping cash in excess of the limits in the bank itself.

It is then alleged that though as on 30-9-2006 a total amount of

Rs.3,38,00,000/- was realisable from 513 loanees which includes a

sum of Rs.1,20,00,000/- kept in arrears by them the Committee did

not take effective action for realising the heavy overdue of loans from

its members. It is pointed out that amounts are due to the State Co-

WP(C)N0s. 22606 & 24584/07
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operative Housing Federation which did not approve the action of the

Society re-scheduling the repayment of 51 loans for the purpose of

reducing the overdue position.

It is then alleged that the committee of the Society was indulging

in the practice of admitting members at the time of election and

removing members so admitted immediately after the election. This

practice has been resorted to in 2002 for the purpose of enabling the

Committee Members to secure majority in the election. It is submitted

that on 16-1-2007, 116 new members were admitted and that these

members never require any loan from the Society. Section 24 of the

KCS Act is referred to and it is stated that share capital of admitted

members is to be refunded only after a period of three years of

admission. It is alleged that this section has been violated in the case

of 38 members admitted on 19-2-2002 and 20-2-2002. Referring to

rule 63 of the KCS Rules it is contended that the Committee has

violated that rule which insists that 20% of the fixed deposit collected

by the Society shall be kept as fluid resources so that demands for

withdrawal can be honoured immediately has been violated. The total

loss of the Society for the year 2002-2003 is Rs.62.88 lakhs and it is

alleged that the Committee did not take any steps for reducing the

loss. Referring to rule 47(d) of the KCS Rules it is submitted that it is

WP(C)N0s. 22606 & 24584/07
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the Committee of the Society which primarily responsible for the

proper functioning of the Society and it is alleged that the members of

the Committee are working in the manner detrimental to the Society

and against the provisions of the KCS Rules, byelaws and sub-rules of

the Apex Society. When these irregularities were brought to the notice

of the first respondent the first respondent bona fide felt that allowing

the Committee to continue in the office will be detrimental to the

Society and hence they should be removed at the earliest. This was

why show cause notice under section 32 (1) of the Act was given to the

members of the Committee. Explanations in writing submitted by the

petitioners in response to that notice was considered, the petitioners

were personally heard and thereafter only the order of supersession

was passed. It is claimed that the Circle Co-operative Union,

Kunnathunadu and the Kerala State Co-operative Housing Federation

have been consulted in the matter. The counter affidavit goes on to

repudiate the various grounds raised in the writ petition. It is claimed

that the election process was not in any way stalled by the

administrator of the Society. The allegation that the very object in

issuing Ext.P8 supersession order is to keep power in the apex

federation by destroying the quorum in the federation is stoutly denied.

It was within the powers of the Deputy Registrar (Vigilance) to inspect

WP(C)N0s. 22606 & 24584/07
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the Society and detected irregularities and to report the matter to the

first respondent Joint Registrar. What has been did in this case has

been in accordance with the rules. Principles of natural justice also

have been complied with in the matter. Since it was found that the

President and Committee members were misusing the Society’s funds

and were violating the rules and the byelaws the first respondent had

no option other than to remove them, so that the interest of the

Society could be safeguarded. Second respondent in WP(C)

No.22606/07 (Returning Officer) is Inspector of Co-operative Societies,

Mazhuvannur Unit. He was appointed for conduct of elections. The

Deputy Registrar (Vigilance) conducted inspection in the Society in

discharge of her duty which is to detect irregularities by conducting

visits. Answering the allegation that principles of natural justice have

been violated and that the Circle Co-operative Union and Kerala State

Housing Federation have not been consulted it is claimed that the

details of the irregularities reported by the Deputy Registrar

(Vigilance) had been enumerated in the show cause notice and that the

Circle Co-operative Union as well as the financing institution have been

meaningfully consulted by forwarding copies of all relevant papers to

them including the tentative opinion formed by the first respondent

and that despite giving sufficient time for offering remarks they did not

WP(C)N0s. 22606 & 24584/07
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give any remarks on the basis of which it was presumed that they have

no objection in the proposal to supersede the Society. It is stated that

though the Administrator took charge of the Society on 17-7-2007 he

became obliged to conduct the election and he has handed over the

charge of the Society to the newly elected Committee on 31-7-2007,

but since some of the members of the earlier Committee which has

been superseded are members of the new Committee the first

respondent has become duty bound to proceed in accordance with law

for disqualifying those members from membership. Referring to the

interim orders passed by this court on 24-7-07 and 22-8-07

respectively that the Administrator shall not take any action to cancel

the delegation of the first petitioner to the Committee of the Apex

Society and to the Apex Society to allow that petitioner to continue in

the Committee of the Apex Society. The counter affidavit refers to rule

46(b) of the KCS Rules. It is submitted on the basis of that rule that a

delegate of one Society sitting on the Committee of another Society

shall cease to be a member of such Committee in case he is elected as

a delegate by the Society on the supersession of such Society under

section 32. Thus there is automatic cessation of membership of the

first petitioner in the Committee of the third respondent federation.

Therefore it is not proper to permit the first petitioner to continue in

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the committee. The natural consequence of the supersession order is

that the newly elected committee of the Society will have to elect a

new delegate to the third respondent federation. The petitioners have

filed a reply affidavit to the above counter affidavit reiterating their

averments and grounds. It is submitted therein that as per the election

schedule Ext.P2 published by the Kerala State Co-operative Election

Commission the election process started as early as on 19-6-2007 and

the date of submission of nomination paper was on 11-7-2007. As on

that date all the petitioners were fully qualified to contest the election.

Disability of candidate is to be determined as on the date of submission

of nomination paper. Ext.P8 was issued on 16-7-07 with the oblique

motive of disqualifying the petitioners. Ext.P8 cannot have adverse

effect on the eligibility and qualification of the petitioners to contest the

election. Meeting the claim in the counter affidavit that Ext.P8 order

has been passed after considering Ext.P7 reply submitted by the

petitioners it is contended that in Ext.P8 there is not even a casual

reference to the various contentions raised in Ext.P7. It is only

vaguely stated that the reply is not acceptable. Registrar is legally

bound to deal with every explanation and objection and to discuss the

merits of the explanations and objections and to record his reason for

rejecting the explanations and objections. The reply reiterates that the

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mandatory consultation with the Circle Co-operative Union and the

financing bank has not been done in this case. Ext.P14 letter dated 16-

7-2007 of the Kunnathunadu Circle Co-operative Union is relied on in

the reply affidavit. It is alleged that no enquiry as envisaged by

section 65 has been conducted in this case and that the Deputy

Registrar (Vigilance) conducted the alleged inspection and enquiry on

his own with the intention of discovering some reason for superseding

the Committee. Undue haste has been shown in passing Ext.P8.

Sufficient time was never given to the consultees for expressing their

views.

One K.Janardhanan Nair, Member of the Managing Committee of

Vellanad Rural Housing Society Ltd. and its President filed application

for impleadment as the additional 4th respondent in the writ petition.

He is the delegate of Vellanad Rural Housing Co-operative Society to

the general body of the Kerala State Co-operative Housing Federation,

the apex society and he claims to be interested vitally in the affairs of

the apex society. According to him the order superseding the Society

was passed by the passed by the first respondent on valid grounds. He

points out that this court did not grant stay of the operation of the

supersession order noticing the situation that the Administrator had

taken charge. He also refers to the direction of this court that the

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Administrator shall not take action for revoking the decision of the

Society nominating its delegate to the apex society without obtaining

any orders from the court. He contends that the moment the

Administrator assumed office in the Society the first petitioner who had

been elected as delegate of the superseded Society ceased to be a

member and Managing Committee Member of the apex society since

the delegation itself became inoperative. He contends that despite the

order dated 22-8-2007 passed by this court in I.A.11267/08 that the

first petitioner shall continue to be a member of the Board of Directors

of the Apex Society in view of the statutory disability of the members

of the superseded committee under section 22 to contest the election

for a period of one year the very election of the first petitioner and the

other petitioners to the Board of Directors of the Society is legally

ineffective. It is also pointed out that the nomination of the petitioners

is only to the general body of the Apex Society. He alleges that the

first petitioner is in reality an usurper to the Committee of the Apex

Society and that his continuance solely on the basis of interim order

issued by this court on 22-8-2007 is to be vacated forthwith.

To the above I.A. the petitioners filed a counter affidavit

contending that the petitioner in the I.A. is not a necessary party at all

and that the very filing of the impleadment application is mischievous

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and intended to harass the petitioners. Since the Apex Society itself is

a party in the writ petition it is not at all necessary to implead the

petitioner who is at the most only a delegated member of the general

body of the Apex Society.

On behalf of the third respondent Apex Society its Managing

Director has filed a detailed counter affidavit. It is pointed out in that

counter affidavit that the third respondent is an Apex Co-operative

Society whose members are primary housing societies like the society

in question. The main object of the Apex Society and the member

societies is to raise funds by way of loans from various financing

agencies or deposits from public and to grant loans to members as

provided in the loan regulations. Copy of the codified loan regulation is

produced as Ext.R3(a). It is submitted that the first petitioner was

elected as delegate of Kunnathunadu Taluk Housing Society and the

general body of the third respondent federation elected him as director

representing Ernakulam Revenue District as provided in byelaw II of

the Federation. Later as provided in byelaw 14 the Board of Directors

of the federation elected him as member of the Executive Committee.

After this court passed stay order the first petitioner was elected as

Vice President of the third respondent federation in a vacancy which

had arisen to that post due to the resignation of the former Vice

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President. The counter affidavit refers to rule 46(1) and submits that

the delegate of one society sitting in the committee of another Society

shall cease to be a member of such committee if the Society which

sends him as delegate is in default to the Committee to which he is

delegated. The Government of Kerala exempted all primary housing

societies from the operation of rule 46(e) for a period of six months

and upon the expiry of the period of exemption three directors of the

third respondent including the first petitioner filed a writ petition before

this court and that writ petition was disposed of by Ext.R3(b)

judgment virtually extending the period of stay by three more months.

Later when the Registrar issued notice to the petitioners in R3(b) on

the basis of the report of the Joint Registrar they approached this court

again apprehending disqualification. This court disposed of that writ

petition by R3(c) judgment. The petitioners should be aware that as

per rule 44(1)C and 45(1) defaulters are not entitled to contest the

election and to get appointment as delegate and the Society therefore

reduced the arrears due to the federation for averting disqualification

of each delegate. The Registrar disqualified Sri.C.P.Michael and

Sri.K.G.Bhaskaran as per his order against which they have filed writ

petition No. 31718 of 2007 which pending before this court. Ext. R3(d)

common judgment of this Court in writ petitions challenging Ext.P6

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notice issued by the Joint Registrar is produced and it is stated that in

obedience to the order of the President the Managing Director did not

send any remarks to the Joint Registrar to the notice dated 14-6-2007

and that it is thereafter that Ext.P8 order of supersession was passed

and Administrator was appointed who took charge on 17-7-2007.

Referring to rule 46(b) of KCS Rules and by byelaw 12(d) of the

federation it is contended that a delegate of primary society shall cease

to be a member of the committee of the federation if he incurs any of

the disqualifications under rule 46. It is claimed in the counter affidavit

that upon assumption of charge of the Society by the Administrator the

Managing Director informed Sri.O.Devassy over phone that his

membership in the board/committee of the federation had come to an

end by operation of law. Sri.Devassy. Sri.Devassy informed him that

he will not be attending the meeting of the Executive Committee

scheduled for 24-7-2007. This was why revised notice of the postponed

meeting of 27-7-2007 was not issued to Sri.Devassy. Such a notice

was unnecessary in view of Rule 46(b) of KCS Rules and byelaw 12(d)

of the Federation. While so on 25-7-2007 the first petitioner himself

came to the office and handed over a closed cover to the Deputy

General Manager (Admn.) who opened the cover and handed over the

cover with its content to the Managing Director. The cover contained

WP(C)N0s. 22606 & 24584/07
-22-

copy of this court’s order dated 24-7-2007 restraining the

Administrator from taking any action to revoke the decision of the

Society nominating its delegate to the Kerala State Co-operative

Housing Federation, Kochi without obtaining orders from this court.

The petitioner never handed over copy of the writ petition to the

Managing Director. Certified copy of the interim order dated 24-7-

2007 issued by this court or of the writ petition was not served on the

federation or its counsel. Subsequently on 7-8-2007 notice of the writ

petition alone was received from the court. Even then the order dated

24-7-2007 was never sent to the Managing Director or the federation

by the court. Out of respect and regard to this court the Managing

Director decided to seek legal opinion of the counsel for the federation

in the matter in view of Executive Committee meeting scheduled on

27-7-2007 for which he did not invite or intimate Sri.O.Devassy on the

belief that his membership had come to an end on 17-7-2007. Ext.R3

(e) is the written legal opinion furnished by the federation’s counsel in

this court on 25-7-2007 and as stated in the counter affidavit it

concludes by saying that by operation of rule 46(b) Sri.O.Devassy has

ceased to be a member of the committee of the federation. It is

submitted that relying on Ext.R3(e) Ext.P10 letter was prepared by the

Managing Director and the same was handed over along with a copy of

WP(C)N0s. 22606 & 24584/07
-23-

Ext.R3(e) to the Deputy General Manager to be handed over to the

first petitioner. Instruction was given to the Deputy General manager

to send over Ext.P10 by post also to the first petitioner. Since the

Managing Director fell ill the two Deputy General Managers who were

assisted the President and on arrival of Sri.Devassy, Ext.P10 letter was

handed over to Sri.Devassy by them and Sri.Devassy accepted it. But

the President who had instructed the Managing Director not to send

remarks to the Joint Registrar allowed the petitioner to attend the

meeting of the Committee ignoring Ext.P10 letter and also to

participate and sign in the minutes. Ext.R3(f) is copy of a joint report

submitted by the two Deputy General Managers who were present in

the meeting. An item regarding the interim order issued by this court

was included in the agenda as per notice dated 30-7-2007 so that the

board members can note the order and examine the scope of the

order. It is alleged that the first petitioner Devassy forcefully attended

the meeting ignoring Ext.P10 letter with the permission of the

President and assistance of the other members and signed the

minutes. Payment of T.A. and D.A. to ineligible members is likely to

attract audit objection and the Managing Director may become liable to

reimburse the amount. Therefore by letter dated 31-7-2007 the

matter was reported to the Registrar who is empowered under rule

WP(C)N0s. 22606 & 24584/07
-24-

176 to rescind the resolution/decision.

The counter affidavit refers to the proceedings in C.C. No. 1142

of 2007 filed by the first petitioner before this court accusing the

Managing Director for contempt of this court’s order. It is submitted

that the Managing Director personally appeared on 8-8-2007 on the

day fixed for appearance and subsequent dates of postings in this court

and filed affidavit on 6-3-2007 denying accusation. It is stated that

Ext.P10 letter has been withdrawn by the Managing Director by a

separate letter Ext.R3(g). Ext.P10 letter had been sent to the first

petitioner out of courtesy and gentlemanliness since earlier notice

dated 10-7-2007 had already been sent to him inviting him to attend

the meeting of the Executive Committee prior to Ext.P8 order of

supersession. It is also stated in the counter affidavit that the

Managing Director did not and could not understand that this court by

its interim order intended to retain the first petitioner in the committee

or board in violation of rule 46(a).

In WP(C) No.24584 of 2007 the first respondent has filed a

counter affidavit justifying the supersession order. It is stated therein

that a notice containing the tentative opinion of the Joint Registrar

regarding the show cause notice issued to the petitioner and the

objections received from the petitioners to the same enclosing a copy

WP(C)N0s. 22606 & 24584/07
-25-

of the explanation offered by the petitioners was sent over to the Circle

Co-operative Union and the Housing Federation. Ext.R1(a) is copy of

that notice with enclosures. Though one week’s time was given in

Ext.R1(a) to both the consultees neither of them gave reply. No

communication has been received from either of the consultees in the

matter of Ext.R1(a) before 16-7-07, the date of the supersession order

or even afterwards. It is contended that neither in the statute nor in

any of the judicial pronouncements contemplate hearing of the

petitioner after consultation with the consultees. The only condition

imposed by the judicial pronouncement is that for for an effective

consultation copies of the notice, the explanations submitted by the

parties and the tentative opinion of the Registrar have to be sent to

the consultees. Such a procedure has been complied with in this case

as can be seen from Ext.R1(a). It is further submitted that even if the

consultees give any opinion what is relevant for a decision under

section 32 is the subjective satisfaction of the Registrar and not the

opinion of the consultees. The counter affidavit denies the contention

that the District Co-operative Bank is a financing bank and therefore a

a mandatory consultee in the matter. Ext.R1(b) communication

received by the Joint Registrar from the District Co-operative Bank is

produced. It is stated on the basis of R1(b) that the Society has only a

WP(C)N0s. 22606 & 24584/07
-26-

share having a value of Rs.100/- in the District Co-operative Bank and

no financial assistance has been given by the District Co-operative

Bank to the Society. Ext.R1(c) letter dated 22-1-08 issued by the

Society to the Assistant Registrar (General), Kunnathunad is also relied

on in this context. This counter affidavit reiterates all the contentions

raised by the Joint Registrar through the counter affidavit filed in WP

(C) No. 22606/07. It is stated that personal hearing was conducted on

25-6-2007 on the basis of the report of the Deputy Registrar

(Vigilance) and that written explanations were received from six

committee members who were present. It is thereafter that opinion of

the Kerala State Co-operative Housing Federation and the Circle Co-

operative Union was sought for regarding action under section 32 and

supersession order was passed only when it was noticed that no reply

was received. It is contended that there is no legal impediment in

implementing the supersession order though election procedure has

started in the society. The administrator took charge and election was

conducted on schedule and new committee was given charge on 31-7-

2007. The Joint Registrar has not interfered with the election

proceedings. The only action as contemplated in the statute has been

taken against the Society and its members and the Joint Registrar has

never acted against the provisions of the Act, Rules or judgments of

WP(C)N0s. 22606 & 24584/07
-27-

this Court.

I have heard the submissions of Sri.John Joseph Vettikkad and

Sri.George Poonthottam, learned counsel for the petitioners in the writ

petitions, Sri.C.P.Sudhakara Prasad, learned Advocate General,

Smt.A.G.Anitha, Special Govt. Pleader, Co-op., Sri.P.C.Sasidharan,

Counsel for the prospective additional respondent in WP(C). No. 22606

of 2007. It was argued by the learned counsel for the petitioners that

the ingredients provided in section 32 are completely absent in this

case. The allegations in the show cause notice and in the order of

supersession even if true are not sufficient to show persistent defaults

or willful negligence in performance of the duties of the committee. It

was argued that the power under section 32 is an extraordinary power

expected to be invoked only very sparingly. This power cannot be

used on the ground of technical violation of the rules. The oblique

motive behind the passage of Ext.P8 and P3 supersession orders is

evident from the time and the manner in which the same has been

issued. The Registrar is expected to discuss the merits of the

explanations and the objections received in response to the show

cause notice is also expected to record his reasons why rejecting such

explanations and objections. The Registrar has failed to do so in this

case and therefore there has been no fair consideration of the case by

WP(C)N0s. 22606 & 24584/07
-28-

him. It is then submitted that Ext.P8 and P3 supersession orders and

passed solely on the basis of an illegal enquiry. Deputy Registrar

(Vigilance) is not conferred with any power under the Kerala Co-

operative Societies Act or Rules to conduct enquiry suo motu. Enquiries

are capable of being conducted only as provided under sections 65 and

66. These provisions are inbuilt safeguard for preserving the

autonomy of Co-operative Societies and to prevent illegal intervension

by the executive Government into the autonomous functioning of Co-

operative Societies. It was argued that there was no effective and

meaningful consultation with the mandatory consultees Kunnathunadu

Circle Co-operative Union and the financing institution, viz., the

housing federation. The Circle Co-operative Union and the Co-

operative Housing Federation are democratically elected bodies. They

were not given sufficient time for convening their meetings for

discussing the issues and to give their opinion. There has been undue

haste in the matter of seeking consultation and such haste will speak of

volumes about the mala fides, which taint the action of the Joint

Registrar culminating in the supersession orders. Ext.P16 Malayala

Manorama News item was highlighted by the learned counsel for the

petitioners to show that the Chief Political Executive in the Co-

operative Department, the Minister was bent upon seeing that the

WP(C)N0s. 22606 & 24584/07
-29-

society is superseded. The learned counsel for the petitioners relied on

the judgment of a Division Bench of this Court in Jose Kuttiyani and

others v. The Registrar of Co-operative Societies, Kerala, AIR 1982

Ker. 12 the judgment of this Court in Rajagopalan Nair v. State of

Kerala 1985(2) KLT 184, the judgment of another Division Bench of

this Court in Sahadevan v. Padmanabhan, 2004(1) KLT 192 and the

judgment of Justice Koshy in Ellakkal Service Co-op. Bank v. State of

Kerala, 1997(2) KLT 85 in support of the various propositions

advanced by them. Learned Additional Advocate General

Mr.C.P.Sudhakara Prasad would resist all the submissions of the

counsel for the petitioners on the basis of the pleadings raised by the

Joint Registrar in both these cases. My attention was drawn by the

learned Advocate General to the various documents placed on record

by the Joint Registrar. Drawing my attention to section 32 of the Co-

operative Societies Act learned Advocate General argued that the

condition precedent for exercising power under section 32 is only that

the Registrar on materials placed before him should be satisfied that

the grounds mentioned in section 32 exist for supersession of the

committee. It is not necessary for this purpose that the Registrar or

the Assistant Registrar should exercise the powers under sections 63,

64, 65 and 66. Smt.Anitha, Special Govt. Pleader would support the

WP(C)N0s. 22606 & 24584/07
-30-

submissions of the learned Advocate General. Sri.P.C.Sasidharan,

learned counsel for the impleading petitioner in WP(C). No. 22606 of

2007 was also allowed to make submissions in support of the orders of

supersessions and also the stand of the Joint Registrar that the

supersession order amounts to automatic cessation of the first

petitioner’s delegation to the general body and committee of the Apex

Society. Mr.Sasidharan relied on the judgment of this court in Aliyar v.

Returning Officer, 1999(3) KLT 707 and the judgment of a Division

Bench of this Court in John v. Joint Registrar of Co-op. Societies 1996

(1)KLT 479. I have considered the rival submissions in the light of the

various judicial precedents cited at the Bar. I will scan the pleadings

raised by the parties as well as the various documents placed on

record.

The submission of the learned Advocate General that an enquiry

and report under sections 65 and 66 is not a condition precedent for

exercising power under section 22 of the Co-operative Societies Act

and that it is open to the Registrar to take action on the basis of

reports submitted to him by the Assistant Registrar regarding the

irregularities noticed in a routine inspection is correct and has support

of the judgment of a Division Bench of this Court in State of Kerala v.

Sudarsanan, 1997(2) KLT 522. So also, the submission of

WP(C)N0s. 22606 & 24584/07
-31-

Mr.P.C.Sasidharan and Mr.A.K.Chinnan that a delegate sent by the

primary society to the apex society will automatically cease to be a

member of the general body of the central society the moment the

delegate ceased to be a member of the managing committee of the

primary society which delegates him is founded on rules 44A and 46(f)

of the Kerala Co-operative Societies Rules and has received judicial

endorsement by judgment of a Division Bench of this Court in John v.

Joint Registrar of Co-operative Societies, 1996(1) KLT 479. So also the

argument of Mr.Sasidharan that a member entails a disqualification for

being elected as a member of the committee as envisaged under rule

44(1)(k) once order of supersession is passed and that such liability is

not affected by the non-implementation of the order of supersession on

account of said order issued by court gets apparent support from the

judgment of this court in Aliyar v. Returning Officer, 1999(3) KLT 707.

But the all important question in this case will be whether Ext.P8 order

of supersession has been validly issued for superseding the committee

of the petitioners society. Judgment of the Division Bench in Jose

Kuttiyani v. Registrar, Co-operative Societies, AIR 1982 Kerala 12 is a

leading light regarding the condition precedent for exercising power of

supersession under section 32 and also regarding the scope for judicial

interference on orders passed by the Registrar superseding a society

WP(C)N0s. 22606 & 24584/07
-32-

under section 32. It has been held by the Division Bench that the

power to supersede a committee is really an extraordinary power

which is not to be resorted to unless there is an extraordinary

situation. The jurisdiction of the Registrar depends on the satisfaction

of the Registrar that any one of the conditions enumerated in section

32, viz., (1) the committee of the society persistently makes default or

is negligent in the performance of the duties imposed on it by the Act

or the rules or bye-laws or does anything which is prejudicial to the

interests of the society or (2) wilfully disobeys or fails to comply with

any lawful order or direction issued under the Act or the rules, or (3)

makes any payment contrary to the Act or the rules or the bye-laws or

causes any loss or damage to the assets of the society by breach of

trust o wilful negligence,or (4) misappropriates or destroys or tampers

with the records or causes the destruction of records to cover up any

misconduct or malpractice. Even though the satisfaction of the

Registrar regarding the existence of the necessary conditions for

exercise of power may be subjective, the same shall not be arbitrary.

Though the court under article 226 is not expected to function as an

appellate authority and investigate into the sufficiency of the materials

on which the Registrar arrived at the satisfaction referred to in

subsection (1) of section 32 the court can certainly consider whether

WP(C)N0s. 22606 & 24584/07
-33-

the Registrar had applied his mind to the question whether there were

materials on the basis of which he could have arrived at such a

satisfaction. If there are materials or circumstances which will show

that the power under section 32 has been exercised for a purpose or

with an intention beyond the scope and contemplation of section 32

the court can certainly interfere with the action since such exercise of

power will constitute a fraud on the power or a colourable exercise of

the power. If on a scrutiny of the materials the court comes to the

conclusion that noone could have reasonably arrived on the basis of

such materials that there is warrant for exercise the extraordinary

power of supersession then also or if the materials level that the

Registrar was biased or had pre-judged the issue then also the court

can interfere. The Division Bench also rules that in order that the

mandatory consultation with the financing bank and the co-operative

union is an effective and meaningful one it is necessary that the

Registrar should consult to the consultees by sending copies of all

relevant papers to them along with his own prima facie opinion

regarding the issue.

……………………………………..

WP(C)N0s. 22606 & 24584/07
-34-

The 6th allegation in Ext.P6 is regrading enrollment of new

members on the eve of the election and removing them from

membership after the election. It is seen that in Ext.P7 this allegation

has been completely refuted and it is specifically contended that during

the past 25 years like complaints were never raised. It should be

noticed that the present committee cannot be superseded for alleged

mas enrollment of members by committees which rule the society

during the past years. Whatever that be, the defence based on clause

8(a)(i) of the bye laws appears to be a correct one. Under clause 8(a)

(i) of the bye laws if members make application for return of their

share money and if there are outstanding amounts due to the society

from them and if the members declare that they do not propose to

avail any loan from the society, the society is bound to return their

share value. The submissions of the learned counsel for the

petitioners that only applications from 38 members for return of share

values was allowed during the regime of the present committee is not

disputed. The 7th allegation in Ext.P6 is that Rule 63 of the Kerala Co-

operative Societies Rules has been violated. In that, the society has

not retained the requisite 20% of the total Fixed Deposit as fluid

WP(C)N0s. 22606 & 24584/07
-35-

resources so that in the event of the demands for withdrawal from the

depositors being received the society can honour such demands. The

8th allegation in Ext.P6 that the society’s expenditure exceeds its

income and that the society, which is running at a loss, is not

devolving new scheme for increasing its income so that the loss can

be reduced. In Ext.P7 the allegation that fluid resources are not

retained is answered by contending that substantial amounts are due

to the society from the housing federation of the apex society and that

because of the belief that these amounts will be released by the apex

society that loans were disbursed to the members. It is undertaken in

Ext.P7 that the amounts due from the apex society will be collected

immediately and that fluid resources will be kept. The allegation that

the society is running at a loss and that steps are not being taken by

the committee for reducing the loss is denied. It is contended that

the society is included in clause (i) of the schedule to the Co-operative

Societies Rules which is eligible to have the post of one Secretary, one

Accountant, one Senior Clerk, one Junior Clerk and one Attender.

Though the post of Accountant fell vacant in 2002, the society has

chosen not to fill up that post as austerity measure. The loss

highlighted in Ext.P6, it is contended, is technical and has resulted

from the reduction in the quantum of recoveries of the amounts due to

WP(C)N0s. 22606 & 24584/07
-36-

the society. In Ext.P7, it is stated that the recoveries became less

because of schemes introduced by the Government from time to time

for one term settlement, stoppage of proceedings for attachment and

sale. It is pointed out that as against a sum of Rs.1,25,0000/-

( Rupees One Crore Twenty Five Lakhs) due to the society from its

loanees the society owes 34 lakhs to the apex federation. It is also

pointed out that while the balance sheet reveals loss of 62.88 Lakhs

there is reserve of 80 Lakhs with the society. It is claimed that new

scheme like hire purchase scheme, gold loans, monthly deposits

schemes have been evolved and that the decision has been taken for

sale of building materials and that the said decision will be

implemented as soon as a building is available. I do not think that the

above explanation offered by the society has been sincerely

considered by the Joint Registrar while entering into the satisfaction

which is requisite under Section 32 before issuing the order of

supersession. As already indicated, the consultation with the

Financing Bank and Circle Co-operative Union is mandatory before

the Registrar passes order of supersession under Section 32 (1). In

this case the financing bank is the third respondent apex federation

and the Kunnathunadu Circle Co-operative Union. The learned

Advocate General would argue on the basis Ext.R1(a) that though

WP(C)N0s. 22606 & 24584/07
-37-

Ext.R1(a) was sent to the Circle Co-operative Union and the financing

bank, there was no reply from them. According to the learned

Advocate General, consultation does not mean coordination. Though

it is true that what is envisaged under Section 32(2) is only

consultation with the financing bank and the Circle or State Co-

operative Union, as the case may be, and that consultation does not

mean that the consultee should agree with the tentative opinion of

the Registrar forwarded to them, I am not prepared to accept the

argument that the Registrar as in this case complied with the

mandates of Section 32(2). It is seen from Ext.R1(a) that the said

document is dated 28.6.2007. Ext.P14 produced by the petitioners

along with the reply affidavit is a letter which the Kunnathunadu Co-

operative Union has sent to the Joint Registrar in response to Ext.R1

(a). Ext.P14 will show that Ext.R1(a), in which the Circle Co-operative

Union had been directed to submit reply to Ext.R1(a) on or before

4.7.2007, was received by the Circle Co-operative Union only on

1.7.2007 if not later. In Ext.P14, the Circle Co-operative Union

informs the Joint Registrar that they did not get time enough before

4.7.2007 to convene the meeting so that the issue referred by the

Joint Registrar could be discussed and a proper reply submitted to the

Joint Registrar. In Ext.P14 it is requested that the time be granted so

WP(C)N0s. 22606 & 24584/07
-38-

that the meeting of the Circle Co-operative Union can be convened for

discussing Ext.R1(a) as an item on the agenda and for the opinion

emerging from the discussions. The Housing Co-operative Federation

and the Circle Co-operative Union are both elected bodies. When they

are consulted by the Joint Registrar under sub section 2 of Section 32

in the contest of a proposed supersession of a primary society the

consultees are expected to consider the materials forwarded to them

by the Joint Registrar as part of the consultative process in their

meeting so that the opinion to be submitted to the Joint Registrar will

be considered as opinion of the consultees. In this case the Joint

Registrar has not contended that he has received Ext.P14. Having

received Ext.P14, in which apparently good reason is stated by the

Circle Co-operative Union for their inability to submit their opinion on

Ext.R1(a) before the stipulated date of 4.7.2007, the Joint Registrar

could have granted a reasonable time and ensured thereby that the

Circle Co-operative Union discussed Ext.R1(a) and submitted their

considered opinion which also should have been taken into account by

the Joint Registrar in the matter of entering satisfaction regarding the

existence conditions required for passing a highly consequential order

of super session. The consistent allegation of the writ petitioners is

that the very motive of the Joint Registrar in initiating super session

WP(C)N0s. 22606 & 24584/07
-39-

proceedings against the the petitioners society was to place his

political masters in the Government by removing the President of the

Society from membership of the Board of Directors of the third

respondent Federation. The events which have taken place

subsequent to the institution of these writ petitions will indicate that

the allegation of the petitioners is not totally without force. This court

on 24.7.2007 passed an interim order that the administrator appointed

pursuant to Ext.P8 and the 2nd respondent returning officer shall

ensure that the process of the election is completed and the results are

declared as per the schedule notified by the election commission.

Considering the complaint of the petitioners that the action has been

taken for revoking the decision of the society nominating its

delegates to the Kerala State Co-operative Housing Federation this

court Ordered that no action shall be taken for revoking the decision

of the society nominating its delegates to the Kerala State Co-

operative Federation without obtaining orders from this court. It

appears that on the basis of that interim order, the first petitioner was

permitted to participate in the Executive Committee meeting of the

third respondent Federation held on 27.7.2007 and in another

meeting held on 30.7.2007. After the meeting on 30.7.2007 was

completed, the Managing Director in charge of the third respondent

WP(C)N0s. 22606 & 24584/07
-40-

Federation would handover Ext.P10 order to the first petitioner issued

on the basis of the administrator’s letter dated 17.7.2007 informing

the first petitioner that his membership in the director board of the

third respondent the Housing Federation has seized with effect from

the date in which the administrator took charge in the society.

Interestingly though Section 32 of the Co-operative Societies Act and

the Rule 46 (b) are frequently referred to in Ext.P10, in Ext.P10 does

not refer at all to the interim orders passed by this court in these writ

petitions.

(PIUS.C.KURIAKOSE,JUDGE)
dpk

It is seen from Ext.P11 that the third respondent had convened a

meeting of the executive committee of the federation to be held on 8-

8-2007, the agenda being discussion regarding the order of this court

not to revoke the delegate membership of the first petitioner in the

committee of the third respondent federation. Obviously the third

respondent was aware of the pendency of the writ petition challenging

Ext.P8 order and also about the passage of the interim order

restraining revocation of the delegate membership of the first

petitioner. I am unable to see how the third respondent could have a

WP(C)N0s. 22606 & 24584/07
-41-

“discussion” over the interim order passed by this court and take any

decision (unless it is a decision to implement the order) without

seeking permission from this court.

The following circumstances and subsequent events also lend

support to the allegation of the petitioners that the design in

superseding the society after the election process was on was to

somehow or other ensure that the equations of power in the third

respondent federation are upset. Result of the election was declared

on 29-7-2007 pursuant to interim orders of this court and the

administrator entrusted the charge of the society to the newly elected

committee on 31-7-2007. On that very day the newly elected

committee was convened and the committee elected. The first

petitioner himself as the delegate of the society to the third

respondent federation. Ext.P10 letter will show that the copy of the

resolution electing the first petitioner as the delegate was given to the

third respondent alleging that the third respondent is diffident to

recognise the first petitioner as a delegate member of the board of

directors of the third respondent. I.A.11267/07 was filed before this

court on 22-8-2007 and interim order was passed to the effect that

the first petitioner shall continue as member of the board of directors

and member of the executive committee of the housing federation

WP(C)N0s. 22606 & 24584/07
-42-

until further orders. Accusing that the third respondent has prevented

the first petitioner from participating in the meeting of the board of

directors of the third respondent in disobedience of the orders of this

court C.C.C. No. 1142/07 was filed by the petitioners before this

court . The third respondent filed a detailed counter affidavit in which it

was ultimately stated that the letter which he had given to the first

petitioner raising objections to the first petitioner’s attending the

meeting of the board of the third respondent is being withdrawn. The

C.C.C. Was closed in view of the withdrawal of objections by the third

respondent as stated in his counter affidavit. It is seen that the first

respondent has served Ext.P15 notice dated 29-9-07 on petitioners 1

to 5 seeking to show cause against issuing a declaration that the

petitioners having entailed disqualification under rule 44(3) of the

Kerala Co-operative Societies Rules since they are members of a

committee which has been superseded under section 32(1). Ext.P15 is

issued on the basis of Ext.P8 supersession order. Respondents are

aware of the pendency of this writ petition in which Ext.P8 is under

challenge. They also are aware of the various interim orders passed in

this writ petition including interim order permitting the petitioners to

function as delegates in the committee of the third respondent society.

Despite all these, the first respondent has issued Ext.P15. This in my

WP(C)N0s. 22606 & 24584/07
-43-

opinion is a circumstance that due support to the allegation of the

petitioners that the real motive in initiating supersession proceedings

even after the election process was on was somehow to see that the

existing political equations in the managing committee of the third

respondent housing federation are upset.

Jose Kuttiyani’s case was one where nomination papers

submitted by members of the superseded committee were rejected

by the Registrar on the ground that by virtue of the supersession order

the candidates had become disqualified. This court by interim orders

permitted the candidates to participate in the election. Ultimately this

court found that the supersession order was bad and it was held that

the necessary conclusions is that the candidates are not disqualified in

contesting election.

The result of the above discussions is that both the writ petitions

will stand allowed. Ext.P8 in WP(C) No. 22606 of 2007 and Ext.P3 in

WP(C). No. 24584 of 2007 are quashed. It is declared that petitioners

1 to 5 in WP(C). No. 22606 of 2007 have been duly elected to the

managing committee of the Kunnathunadu Taluk Housing Co-operative

Society No. 307, Kunnathunadu in the election held pursuant to Ext.P2

election schedule produced in WP(C). No. 22606 of 2007.

WP(C)N0s. 22606 & 24584/07
-44-

(PIUS C.KURIAKOSE, JUDGE)