High Court Kerala High Court

A.K.Mani vs The Joint Registrar Of … on 15 March, 2007

Kerala High Court
A.K.Mani vs The Joint Registrar Of … on 15 March, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 25731 of 2006(L)


1. A.K.MANI, PRESIDENT,
                      ...  Petitioner

                        Vs



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

2. THE ASSISTANT REGISTRAR OF CO-OPERATIVE

                For Petitioner  :SRI.P.RAMAKRISHNAN

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :15/03/2007

 O R D E R
                                S. SIRI JAGAN, J.

                         -------------------------------

                         W.P.(C)NO.25731 OF 2006

                        ---------------------------------

        DATED THIS THE 15th   DAY OF FEBRUARY, 2007


                                     JUDGMENT

Over the past two decades, the Co-operative sector in Kerala has

been afflicted with the malady of over – politicisation to such an extent

that, a tendency is widely experienced whereby the political party

which is in power in the State is constantly attempting to wrest control

of societies which are administered by rival political parties. It is seen

that as soon as a particular political party comes into power in the

State polity notices are being issued under the Co-operative Societies

Act and Rules for supersession of the Board of management of the

Society, so that the ruling party can take control of the administration

of the society through an administrator or administrative committee

appointed by them. This infact is a malady which tends to affect the

progress of the Co-operative movement in this State and also the very

democratic fabric of a Co-operative Society. The public are the really

aggrieved persons when the political parties fight with each other to

wrest power and control of a Society for their political or other gains.

This particular case is an example of such a tendency in this State.

2. The petitioner is the President of the Devikulam Taluk

W.P.(c)No.25731/06 2

Plantation Workers Co-operative Credit Society registered under the

Kerala Co-operative Societies Act. He is challenging Ext.P1 notice

issued to him under Section 32(1) of the Kerala Co-operative

Societies Act directing the President of the Society to file his

explanations as to why proceedings under section 32 should not be

taken against the managing committee of the Society for the

irregularities enumerated in the notice. Although the petitioner had

drafted Ext.P2 reply for filing, apprehending that the same would be

a meaningless exercise in so far as Ext.P1 itself would amply prove

that the 1st respondent has already taken a decision to supersede

the managing committee, he has filed this writ petition challenging

Ext.P1 notice, without filing the same, the petitioner contends.

3. Accepting the fact that Ext.P1 is only a notice to show

cause, the learned counsel for the petitioner would submit that in

so far as from the facts disclosed, it is very evident that the

intention of the 1st respondent is to pass orders of supersession,

whatever be the reply submitted by the petitioner, he is perfectly

justified in invoking the jurisdiction of this Court under Article 226 of

the Constitution of India, challenging Ext.P1 notice. He would

submit that in Ext.P1 itself, the 1st respondent has stated that he

has initiated these proceedings only on the basis of a report

obtained by him under Rule 66 of the Kerala Co-operative Societies

Rules. The petitioner’s contention is that for obtaining a report

W.P.(c)No.25731/06 3

under Section 66 of the Co-operative Societies Act, the Rule 66 of

the Kerala Co-operative Societies Rules prescribes certain procedure

which are mandatory in nature and if that report is obtained without

complying with the mandatory provisions contained in Rule 66., that

report cannot be the basis of any proceedings under Section 32.

Reading out the irregularities narrated in Ext.P1, he would submit

that the same itself would prove the malafide nature of the

proceedings initiated by Ext.P1. He took each one of the

irregularities mentioned therein and tried to convince me that the

same have no factual basis. He would further say that the present

managing committee which took charge on 29.8.04 is entitled to

continue in office till 18.8.09. According to him the Society has no

dues to any organisation or the Government. The tentative profit of

the Society for the present year is Rs.34,00,000/-. He points out

that the alleged irregularities in Ext.P1 themselves would show that

they are not irregularities at all, but action taken by a managing

committee, which is interested in the welfare of the committee, for

the betterment of the Society itself. He particularly points out

irregularities 4 and 5 and those mentioned in Ext.P1 which

according to him is so flimsy and vague and in fact does not spell

out any irregularity on any factual basis.

4. The learned counsel for the petitioner also refers to the

decision of this Court in Dr. Vijayalakshmi Kunjamma Vs. State

W.P.(c)No.25731/06 4

of Kerala and others (1978 KLT 62), in support of his

contention that even against a notice, aggrieved person has invoked

the jurisdiction of this Court under Article 226 in proper case and

according to him this is an eminently fit case for such interference.

5. He particularly refers to the insufficiency of the

satisfaction of the 1st respondent against any irregularities

committed by the managing committee warranting issuance of

Ext.P1 notice. According to him when Ext.P1 itself categorically

stated that the satisfaction of the Joint Registrar has been arrived

at on the basis of a report under Section 66, unless that report is

obtained in accordance with the mandatory provisions prescribed

under Rule 66, the very basis of Ext.P1 falls down and therefore

Ext.P1 is liable to be interfered with. The contention is that under

Rule 66, an order authorizing enquiry under Section 66 should

contain 5 details mentioned in Sub rule 1 of Rule 66. Sub rule 2

further mandates that the order authorizing enquiry under Section

66 has to be issued to the President or the Secretary of the Society

concerned by registered post with acknowledgment due. The

petitioner categorically asserts that no such notice whatsoever has

been served on the President or the Secretary of the Society at any

time. In the above circumstances, according to the counsel for the

petitioner, the 1st respondent could not have legally come to a

satisfaction required for initiation of proceedings under Section 32

W.P.(c)No.25731/06 5

while issuing Ext.P1 notice and therefore Ext.P1 is unsustainable

and liable to be interfered with.

6. In this connection, he refers to the decision in Ellakkal

Service Co-operative Bank Vs. State of Kerala (1997(2) KLT

85) wherein a single bench of this Court had categorically held that

the provisions of Rule 66 is mandatory in nature. He also submits

that for invoking provisions of Section 32, the committee of the

Society should have been guilty of any of the four irregularities

mentioned therein and according to him Ext.P1 notice would not

reveal that any of the four irregularities has been committed by the

Committee headed by the petitioner. In this connection, the petition

also refers to the decision in Govindan Kutty Vs. Viyyur Service

Co-op.bank (1990(1)KLT 513), Rajagopalan Nair Vs. State of

Kerala (1995 (2) KLT 184), Sudarsanan Vs. State (1997(1)

KLT 957). On the above grounds, the learned counsel for the

petitioner seeks quashing of Ext.P1 as arbitrary, illegal and

unsustainable .

7. A counter affidavit has been filed on behalf of the 1st

respondent fully justifying the issuance of Ext.P1 notice. It is

submitted therein that the procedure contemplated in Rule 66 has

been substantially complied with and therefore Ext.P1 notice issued

on the basis of a report obtained under Section 66, fully complying

with provisions of Rule 66 is perfectly valid and proper. It is also

W.P.(c)No.25731/06 6

submitted that the writ petition is premature, in so far as Ext.P1 is

only a show cause notice to which the petitioner can file his reply,

which would be considered and then only orders passed. According

to the learned Government pleader there is absolutely no basis for

apprehension that the reply to be filed by the petitioner would not

be considered in the correct perspective. In this respect in support

of the contention of the learned Government pleader that no writ

petition would lie against a show cause notice, the following

decisions are also relied upon, Executive Engineer Bihar State

Housing Board Vs. Ramesh Kumar Singh and others (1996

(1) SCC 327), Chanan Singh Vs. Registrar, Co-op.Societies,

Punjab and others (1976 SCC 361), State of U.P. and another

Vs. Anil Kumar Ramesh Chandra Glass Works and another

(2005 (11) SCC 451). On these grounds, the learned

Government pleader would want me to sustain Ext.P1 and dismiss

the writ petition.

8. The learned counsel for the additional 3rd respondent

would try to argue that the irregularities mentioned in Ext.P1 have

actually been committed by the managing committee headed by the

petitioner. He would submit that in respect of the resolution adopted

by the general body to raise credit limit from 10,000/- to 15,000/-

he had filed a complaint before the Registrar which is still pending, I

do not think that in so far as the complaint of the petitioner still

W.P.(c)No.25731/06 7

remains as complaint without any orders thereon, I can take note of

such a contention to decide this case.

9. I have considered the rival contentions in detail. Since I

am particularly impressed with the contention of the petitioner that

the report relied upon by the 1st respondent for issue of Ext.P1

notice under Section 32 is not one validly obtained complying with

the provisions of Rule 66, I shall first deal with that question. Sub

rules 1 and 2 of Rule 66 read thus:

“66. Procedure for the conduct of inquiry

and inspection:- (1)(i) An order, authorising

inquiry under Section 65 or inspection under

Section 66 shall among other things, contain the

following:

(a) the name of the society whose affairs

are to be inquired into or whose books of accounts

are to be inspected:

                    (b)      the   name   of   the   person   authorised   to

         conduct the inquiry or inspection;


                    )        in specific point or points on which the

inquiry or inspection is to be made, the period

within which the inquiry or inspection is to be

completed and report submitted to the Registrar;

                 (d)       costs of inquiry or inspection;


                    (e)      any other  matter relating or pertaining

             to the inquiry or inspection.


                    (2)      A   copy   of   every   order   authorising

inquiry under Section 65 or inspection under

section 66 shall be issued to the President or the

Secretary of the Society concerned by registered

post with acknowledgment due. A copy of the

order shall also be made available to the Central

Society or societies, to which the society in respect

W.P.(c)No.25731/06 8

of which the order is issued, is affiliated.”

10. The fact that Rule 66 stipulates that an order

authorizing inspection under Section 66 shall contain the 5 details

mentioned therein would go to show that the same is not an empty

formality. This is with the purpose to enable the managing

committee of the Society to be put on notice regarding the matters

in respect of which they have to provide the authorised officer

information during the inspection. So also, the very wording, of Sub

rule 2 would make it abundantly clear that the procedure of sending

copy of the order authorizing the enquiry under Section 66 to the

President or the Secretary of the Society is mandatory in nature. It

specifically states that, that order shall be issued to the President or

the Secretary of the Society concerned by registered post with

acknowledgment due. It is settled law that when a statute

prescribes that a particular thing should be done in particular

manner, it should be done in that manner only and in no other

manner. [See Thodupuzha Taluk Co-op. Marketing Society

Vs. Joint Registrar of Co-op. Societies (2002 (1) KLT 638)]

When Sub rule 2 of Rule 66 prescribes the mode of issuing copy of

the order authorizing inspection under Section 66 by registered post

acknowledgment due, unless the order is so issued by registered

post acknowledgment due, it cannot be held that even if the order is

issued in some other manner, the same would be in due compliance

W.P.(c)No.25731/06 9

with the provisions of Rule 66. The mandatory nature of the

provisions of Rule 66 has been considered by Sri. J.B. Koshy,J in the

decision in Elakkal Service Co-operative Bank’s case. In

paragraph 8 of the said decision, the learned Judge had held as

follows:

“First question is whether the

procedure prescribed under R.66 are

mandatory or mere directory. Sub-r 91)

of R.66 says that an order authorizing

inquiry under S.65 shall among other

things contain the following. The word

used is ‘shall’. Therefore, it is contended

by the petitioners that question of

prejudice or non-prejudice cannot be

looked into because the word ‘shall’ used

indicates that there are mandatory

procedural rules. The name of the

inquiry officer should be intimated is a

mandatory requirement of the statute.

Whether any prejudice at all was caused

is entirely a different matter. Joint

Registrar who is a creature of the statute

cannot say that such a rule is

unnecessary as informing the name of

the person who is authorised to conduct

the inquiry makes no different and no

prejudice will be caused. There is clear

violation of sub-r (1) (b) of R.66. It is

specifically mentioned in R.66(1) (b) that

the name of the person authorised to

conduct the inquiry shall be informed.

According to me, this is a mandatory

provision. Whether that provision is

unnecessary or whether that provision

should have been deleted or not, is a

question before me. So long as that rule

stands, Joint Registrar should have

complied with the same. For any reason

if Joint Registrar was unable to inform the

name question of substantial compliance

could have been considered. But, in no

W.P.(c)No.25731/06 10

such circumstances, Joint Registrar can

say that such a rule is not necessary as

no purpose will be served by mentioning

the name. Admittedly, R.66(1)(d) was

not complied with. But, with regard to

the contention that the notice was not

served by registered post

acknowledgment due as provided under

R.66(2). It is true that there is non-

compliance of the above rule which is

mandatory. Notice was sent by ordinary

post only. S.104 of the Act also provides

that such notice shall be served by

registered post. I cannot understand

why notice in this case was not served by

Joint Registrar as provided under S.104

or R.66(2). However, since the petitioner

accepted notice and replied the same on

merits, on that ground alone enquiry

cannot be set aside as no prejudice is

caused by non-observance of the above

procedure.

11. I am in full agreement with the view expressed by the

learned Judge as above. I also hold that the provisions of Rule 66

particularly, Sub rule 2 is mandatory in nature.

12. The learned Government pleader appearing for the 1st

respondent would point out that in paragraph 3 of the counter

affidavit filed on behalf of the 1st respondent. It has been stated

thus:

“3. As to the averments in paragraph 3 of

the writ petition that, procedure contemplated in

Rule 66 was not complied with for conducting an

enquiry under Section 66, it is submitted that

the 2nd respondent has authorised the Adimaly

Unit Inspector to conduct an enquiry vide

proceedings No.G.496/06 dated 28.8.2006. In

compliance of Rule 66 of the K.C.S. Rules,

W.P.(c)No.25731/06 11

petitioner Society was informed about the

enquiry. The enquiry was conducted on

28.8.2006 and 29.8.2006 in the petitioner

society, and the report was filed. No procedural

irregularities occurred in this regard. The

findings were not a figment of imagination of

this respondent as raised by the petitioner. On

the basis of Sec.66 enquiry report only Ext.P1

notice is issued.”

She submits that since in compliance with Rule 66 the petitioner

Society was informed about the enquiry, there is substantial

compliance of the provisions of Sub rule 2 of Rule 66. Not only am

I not convinced about compliance of Rule 66 by the 1st respondent,

I am also far from being convinced that any intimation has been

issued at all to the President or the Secretary of the Society. The

sentence “in compliance of Rule 66 of Kerala Co-operative Service

Rules, petitioner-Society was informed about the enquiry” in

paragraph 3 of the counter affidavit is as vague as vague can be.

The 1st respondent does not say how the Society was informed

about the enquiry, he does not say when the Society was informed

about the enquiry, he does not say to whom that information was

conveyed; and does not say by what communication the Society

was informed about the enquiry. As such by the counter affidavit

itself the 1st respondent has amply proved that the provisions of

Rule 66 has been blatantly violated by the 1st respondent while

ordering an inspection under Section 66. If at all there is such an

order, I am constrained to say that in spite of filing a counter

W.P.(c)No.25731/06 12

affidavit, the 1st respondent has not found it necessary to support

the same with copies of documents in support of the contentions

therein, like the order authorizing enquiry under Section 66, the

copy of the letter issued to the President or Secretary forwarding

copy of the order authorizing enquiry under Section 66, receipt

evidencing service of the order on the Society, or any other

communication what so ever in this regard.

13. The learned Government pleader would submit that for

a valid initiation of proceedings under Section 32 it is not necessary

that there should be a Section 66 report at all and what is necessary

to invoke the jurisdiction of the Registrar under Section 32 is only

the satisfaction of the registrar after an enquiry by himself or

through his subordinates or on a report of the financing bank or the

Vigilance and Anti-Corruption Bureau of the Government or the

Vigilance Officer or otherwise that the committee of the Society has

committed any of the four irregularities mentioned in Section 32.

According to her, Ext.P1 would prima facie discloses such a

satisfaction by the Registrar and therefore evenif it is assumed that

the report under Section 66 has not been validly obtained that

would not in any way initiate Ext.P1 notice.

14. I have no doubt that for initiating proceedings under

Section 32, the decision of the registrar as contemplated under

Section 32 need not necessarily be on the basis of a report under

W.P.(c)No.25731/06 13

Section 66. Certainly a reading of Section 32 would show that other

materials mentioned in Section 32 would also can be the basis of

the satisfaction contemplated under Section 32. But since in Ext.P1

notice, the 1st respondent himself, categorically states that his

satisfaction about the irregularities mentioned in Ext.P1 is based on

a report under Section 66 itself. That being so, unless the 1st

respondent satisfies me that the report under Section 66 has been

obtained validly and in compliance with the procedure prescribed

under Rule 66, I would have no hesitation to hold that the Ext.P1

notice has not been issued validly. As I have held earlier, the

learned Government pleader was not able to satisfy me that Section

66 report has been obtained after complying with the mandatory

requirements of Rule 66.

15. In this connection it is worthwhile to extract a passage

from the decision of a Single judge of this Court in Sudarsanan’s

Case supra, paragraph 13 of which reads thus:

“13. Coming to the facts of the case, the

impugned order Ext.P8 sets out the main

irregularities and states that on the basis of the

reports submitted under S.66 of the Act, the

Registrar is convinced that action under S. 32

should be taken to remove the committee. The

Joint Registrar did not independently consider the

explanation furnished by the petitioners.

Nowherein the order, it is seen, that the Joint

Registrar has discussed the alleged irregularities in

reference to the explanation furnished by the

petitioner. On the contrary, the Joint Registrar was

proceeding on the basis that he intends to confirm

the recommendations of the Assistant Registrar.

W.P.(c)No.25731/06 14

This, in my view, is a clear abdication of the power

conferred under S.32 of the Act. Besides the Joint

Registrar has failed to come to his independent

satisfaction on the alleged irregularities. The Joint

Registrar had failed to see that he was not sitting in

appeal or for considering whether the decision

taken by the Assistant Registrar in superseding the

society is to be confirmed or not. The Joint

Registrar should have independently considered the

charges levelled in the show cause notice and the

reply furnished by the petitioners. In Jose

Kuttiyani Vs. Registrar of Co-operative

Societies (AIR 1982 Ker. 12) a Division Bench of

this Court held that Registrar does not appear to

have weighed the facts independently. The

Division Bench further held that the Registrar must

be satisfied that the conditions precedent for the

exercise of the power of supersession are in

existence or not. No doubt the satisfaction may be

subjective, but it shall not be arbitrary. If the

contention is that the Registrar never applied his

mind and therefore, he could not have been

satisfied, the court can enter into that question, the

ingredient of satisfaction being the condition

precedent to the exercise of power. In the decision

of the Supreme Court in Joint Registrar of Co-

operative Societies, Madras and Ors. Vs. P.S.

Rajagopal Naidu and Ors. (AIR 1970 SC 992)

referred above, the Supreme Court held that even

though the opinion of the Registrar is purely a

subjective process, there must be cogent material

on which the Registrar has to form his opinion that

the society was not functioning properly in order to

sustain the subsequent supersession of the

committee after considering its representation on

that ground. The requisite opinion has indisputably

to be formed honestly and after applying his mind

by the Registrar to the relevant materials before

him the only condition precedent for taking action

is that the Registrar must consult the financing

bank.”.

It must be noted here that this decision itself is based on an earlier

Division Bench decision. In this case except quoting the Assistant

W.P.(c)No.25731/06 15

Registrar’s report under Section 66, which itself has not been

obtained validly there is nothing to show that before issuing Ext.P1,

the Joint Registrar has not even applied his mind to the same, which

is obvious from Ext.P1.

16. Coming to the contention of the learned Government

pleader, regarding the maintainability of the writ petition, on the

ground that a show cause notice cannot be the subject matter of a

challenge in a writ petition under Article 226 of the Constitution of

India, I am inclined to hold that the petitioner has made out

sufficient grounds for interference at the stage of notice itself

because of the conduct of the 1st respondent himself. When it has

been pointed out to me and I have been convinced about the fact

that the issuance of Ext.P1 itself is without the required satisfaction

of the 1st respondent as provided under Section 32, I am inclined to

hold that the very initiation of the proceedings itself is bad and

violation of the Kerala Co-operative societies Act and Rules

thereunder. This is all the more so since the power of supersession

should be invoked only in exceptional and rare cases. The rule that

a show cause notice cannot be subject to a challenge under Article

226 of the Constitution of India is not an absolute rule without any

exceptions. This Court can certainly exercise its discretionary

jurisdiction in appropriate cases where this Court is satisfied that

while issuing a show cause notice a violation of law has been

W.P.(c)No.25731/06 16

perpetrated by statutory authority in violation of the mandatory

provisions of the rules. The hands of this Court cannot be held to be

tied down on the ground that what is challenged is only a show

cause notice in such cases.

17. The petitioner also contends that the four irregularities

mentioned in Section 32(1) is not present in the case of the Society.

Going by the irregularities mentioned in Ext.P1 notice, although I

am prima facie impressed with the contention of the petitioner in

this regard, I am not going in detail into that question since I am

satisfied that Ext.P1 is liable to be quashed on the other ground

itself. The result of the above discussion is that Ext.P1 notice issued

to the managing committee of the Society headed by the petitioner

is patently illegal and unsustainable and is liable to be quashed. I

do so.

The writ petition is allowed as above.

S. SIRI JAGAN, JUDGE

Acd

W.P.(c)No.25731/06 17