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.
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W.P.(C)Nos. 22606 & 24584 OF 2007
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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Committee of the Society has been ordered to be superseded by the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.
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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
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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
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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
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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:
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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
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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
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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
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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-
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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)