IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 417 of 2009(D)
1. G. JESUDASAN, PRESIDENT, BOARD OF
... Petitioner
Vs
1. JOINT REGISTRAR OF CO-OPERATIVE
... Respondent
2. THE SASTHAMCOTTA CO-OPERATIVE
3. THE PART TIME ADMINISTRATOR, THE
4. N. SREEDHARAN, MEMBER NO. A.0018642,
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :26/05/2009
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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R.P.417/2009 in W.P.(C).31536/2008-D
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Dated this the 26th day of May, 2009.
O R D E R
“CR”
1.Review petitioner filed WP(C).31536/2008
challenging an order of supersession under
Section 32 of the Kerala Co-operative Societies
Act, 1969, hereinafter, the “Act”, for short.
That writ petition was allowed by judgment dated
12.3.2009, 2009(2) ILR Kerala 323, on the sole
ground that the decision impugned therein was
rendered by an officer other than the one who
heard the committee which was superseded thereby.
It was clarified even in that judgment that no
other grounds are dealt with and that this Court
has not gone into the merits or demerits of the
allegations or the objections stated by the
committee to the allegations made against it.
RP417/09 -: 2 :-
2.This review petition is filed by the writ
petitioner on two grounds.
3.Firstly, it is contended that though this Court
noticed the writ petitioner’s contention that the
first respondent was duty bound to proceed under
Rule 66(5) of the Kerala Co-operative Societies
Rules, 1969 rather than take action under Section
32 even in the light of Section 65(6) of the Act,
that plea has not been considered.
4.The aforesaid plea is one that could be raised in
opposition to a notice under Section 32. Having
left open all issues relatable to the merits of
the matter, there was no need for this Court to
consider the issue relatable to that plea of the
petitioner. Such plea in defence to the
supersession proceedings also stands left open by
the judgment sought to be reviewed. There is,
therefore, no error apparent on the face of the
record, in that regard.
RP417/09 -: 3 :-
5.The second ground raised seeking review is
that, it having been held that proceedings under
Section 32 is quasi judicial and the person who
heard the parties ought to pass the order, it
ought to have been further held that the
proceedings are vitiated from its very inception;
that is, from the very drawing up and issuance of
the pre-decisional notice. It is argued on behalf
of the petitioner that the Registrar is “a
person” in terms of Section 3(1) of the Act. The
plea is that the word “person” means a particular
individual and cannot, therefore, take the
concept of an institution and the formulation
of opinion to act under Section 32 ought to be by
one person and the same individual has to
decide on the objections raised.
6.Sub-section 2 of Section 3 provides that the
Government may by general or special order confer
on any person all or any of the powers of the
Registrar under the Act. Therefore, once the
power of the Registrar is conferred by general or
RP417/09 -: 4 :-
special order, all such persons on whom such
power is conferred, exercise the powers of the
Registrar, which includes the power to initiate
action in terms of Section 32 of the Act. The
question, therefore, would be only as to whether
the formulation of an opinion for the purpose of
issuing a pre-decisional notice on specified
grounds relatable to Section 32(1) could be done
by one person and the rendition of the decision
following such consideration could be done by yet
another. Pertinently, it needs to be noted that
the judgment sought to be reviewed is rendered on
the fundamental principle that in instances of
hearings which involve live questions of sifting,
weighing and appreciation of evidence tendered,
the lis has to be decided by the person who heard
the arguments. This is all the more so because,
such a decision-making process, as noticed in
paragraph 18 of the judgment sought to be
reviewed following Marico Industries Ltd., 2003
(1) KLT 956, is not a decision exclusively of the
head or heart and it has to be one of both. The
RP417/09 -: 5 :-
process of arriving at the satisfaction that the
committee has conducted itself in any among the
manners enumerated in clauses (a) to (d) of sub-
section 1 of Section 32 need not necessarily lead
to the conclusion that it, without fail, has to
be superseded. This is why, while the Registrar
is conferred with the authority to supersede
without pre-decisional hearing, the committee
could be given the opportunity to state
objections against the proposed supersession. In
cases where the Registrar proceeds to give an
opportunity of pre-decisional hearing to the
committee to state its objections, he cannot then
start the hearing with any pre-conceived notion
as to the guilt of the committee as regards the
allegations made against it. It is an essential
feature of fair play, inbuilt among the
fundamentals of natural justice, that bias in any
form, including subject matter bias or any pre-
conceived determination or opinion, ought not to
weigh with the authority who hears. If it does,
that will result in forking the process of
RP417/09 -: 6 :-
assimilation of the defence tendered. This would,
undoubtedly, taint the judicious mind of the
adjudicator. In matters relating to Section 32,
when a committee states its objections and is
given an opportunity of hearing, law would not
presume that the Registrar hears the objections
after having concluded for himself, to supersede.
This, therefore, shows that in cases where a
notice is given affording opportunity to state
objections, the formulation of the “satisfaction”
by the Registrar comes to a standstill and the
application of mind by the person who hears the
committee on its objections, namely, the
Registrar, would start, untrammelled by whatever
conclusion or satisfaction was arrived at before
issuing the notice. Therefore, the person who
hears and considers the objections of the
committee does not get tied down to the
conclusions or satisfaction arrived at before
issuing the notice giving opportunity to the
committee to state its objections. Hence, in
cases where opportunity to state objections is
RP417/09 -: 7 :-
given, it is unnecessary that the same person who
was satisfied that any among the grounds in
clauses (a) to (d) of sub-section 1 of Section 32
exists and had issued the notice giving
opportunity to the committee to state its
objections, should himself hear the committee on
its objections; or as a necessary corollary, the
entire proceedings call for being rendered void
necessitating a person exercising the powers of
the Registrar to start the exercise de novo from
the stage of consideration of the files even
before issuing any notice giving opportunity to
the committee to state objections. It was hence
that it was stated in the last paragraph of the
judgment sought to be reviewed that the first
respondent could proceed with hearing de novo
following a notice that may be issued to those
entitled to be heard and the proceedings shall
commence from the state at which the parties
stood on the date of issuance of notice that led
to the hearing of the petitioner by
Sri.Omanakuttan (the officer who passed the order
RP417/09 -: 8 :-
that was impugned in the writ petition).
For the aforesaid reasons, I do not find any
error apparent on the face of the record or any
other ground warranting review of judgment under
Article 226 of the Constitution of India. The
review petition fails. The same is accordingly
dismissed.
THOTTATHIL B. RADHAKRISHNAN,
JUDGE.
Sha/250509