Kerala High Court
Johny Joseph vs The Joint Registrar Of Co-Operative on 14 February, 2006
Author: S. Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
MONDAY, THE 26TH DAY OF MARCH 2012/6TH CHAITHRA 1934
WP(C).No. 2033 of 2007 (P)
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PETITIONER(S):
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1. JOHNY JOSEPH, PRESIDENT, KOLLAM
DISTRICT POSTAL EMPLOYEES HOUSING CO-OPERATIVE
SOCIETY LTD., NO.Q.1446, PUNALUR P.O.,KOLLAM.
2. KOLLAM DISTRICT POSTAL EMPLOYEES
HOUSING CO-OPERATIVE SOCIETY LTD NO.Q.1446, PUNALUR,
REPRESENTED BY ITS SECRETARY.
BY ADVS.SRI.V.G.ARUN
SRI.T.R.HARIKUMAR
SRI.JAIBY PAUL
RESPONDENT(S):
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1. THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL) KOLLAM.
2. KOLLAM DISTRICT POSTAL TELECOM BSNL
EMPLOYEES HOUSING CO-OPERATIVE SOCIETY, LTD NO.830,
KOLLAM, REPRESENTED BY ITS, SECRETARY.
R1 BY GOVERNMENT PLEADER SMT.SANJEETHA
R2 BY SRI.P.RAVINDRAN (SR.)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-03-2012, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
WP(C)NO.2033/2007
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE RELEVANT PAGES OF THE BYE-LAWS
P2 COPY OF THE RESOLUTION NO.52 DATED 14/2/2006.
P3 COPY OF THE RESOLUTION NO.1 OF THE SOCIETY.
P4 COPY OF THE CERTIFICATE OF REGISTRATION DATED 21/6/2006.
P5 COPY OF THE ORDER NO.O.1446/06 DATED 27/6/2006.
P6 COPY OF THE JUDGMENT IN WP(C)NO.18234 OF 2006 DATED 20/9/2006.
P7 COPY OF THE ORDER NO.O.2921/06 DATED 25/11/2006.
RESPONDENT'S EXHIBITS:
R2(A) COPY OF THE RELEVANT PROVISIONS OF THE BYLAW OF THE 2ND
RESPONDENT SOCIETY.
/TRUE COPY/
P.A.TO.JUDGE
sts
S. SIRI JAGAN, J.
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W.P.(C)No.2033 of 2007
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Dated this the 26th day of March, 2012
J U D G M E N T
The petitioners are the Kollam District Postal Employees Housing Co-operative Society Limited and its President. They are aggrieved by Ext.P7 order of the 1st respondent Joint Registrar of Co-operative Societies (General) Kollam, whereby a registration of an amendment of the bye-laws of the Society registered under Section 12 (3) of the Kerala Co-operative Societies Act has been cancelled on the ground that the registration was mistakenly granted. The contention raised by the petitioners is that the Co- operative Societies Act does not confer any power on the 1st respondent to cancel a registration once made under Section 12 (3). If at all there is a mistake, the remedy of the party or even the Registrar is to approach the Government under Section 87 by way of revision, is the contention raised.
W.P.(C)No.2033 of 2007 -2-
2. A counter affidavit has been filed by the 2nd respondent where the stand taken is that on registration of the amendment, the 2nd respondent Co-operative Society would cease to become a Housing Co-operative Society and would become a credit society which in turn will result in overlapping of area of the operation of the 2nd respondent Society by the petitioner Society.
3. I have considered the rival contentions in detail.
4. The Amendment to the bye-laws of a Co-operative Society and its registration are governed by Section 12 of the Kerala Co-operative Societies Act, 1969. The said Section reads thus:
"12. Amendment of bye-laws of a society.- (1) No amendment to any bye-law of a society shall be valid unless such amendment has been registered under this Act.
(2) The provisions of section 7 specifying the conditions to be satisfied before registration of bye-laws of a society by the Registrar shall, mutatis mutandis, apply also to the registration of amendments to bye-laws;
Provided that the Registrar shall before registering an amendment of any bye-law consult-
(a) The State Co-operative union if the bye-laws to be amended are that of an Apex society or a Central society;
or W.P.(C)No.2033 of 2007 -3-
(b) The circle Co-operative union if the bye-laws that are to be amended are that of any other society; and
(c) The financing bank if the society is indebted to the financing bank.
(3) The Registrar shall forward to the society a copy of the registered amendment together with a certificate of registration signed and sealed by him, and such certificate shall be conclusive evidence that the amendment has been duly registered.
(4) Where the Registrar refuses to register an amendment of the bye-laws of a society, he shall communicate the order of refusal, together with the reasons thereof, within seven days of the order to the society.
(4A) An application to register an amendment of the bye-laws of a society shall be disposed of by the Registrar, within ninety days from the date of receipt of the same. (4B) Where an application to register an amendment of the bye-laws of a society is not disposed of within the time specified in sub-section (4A), the society may make a representation,-
(a) before the Registrar of Co-operative Societies, if the application to register the amendment of the bye- laws is made to a person on whom the powers of the Registrar is conferred under sub-section (2) of S.3; or
(b) before the Government if the application for registration of the amendment of the bye-laws is made before the Registrar, and the Registrar or the Government, as the case may be, shall within sixty days from the date of receipt of such representation, issue directions to the authority concerned, to dispose of the same.
(5) Notwithstanding anything contained in this Act or the rules or bye-laws, if the Registrar is satisfied that for the purpose of altering the area of operation of a registered society or for the purpose of improving the services rendered by it, an amendment of the bye-laws of a society is necessary or desirable, he may, after consulting the financing bank, if any, to which the society is affiliated and the Circle Co-operative union by order in writing, require the society to make the amendment within such time as may be specified in such order or within W.P.(C)No.2033 of 2007 -4- such further time as he may grant for the purpose. (6) If within the time specified under sub-section (5), the society fails to make the amendment, as required by the Registrar or with such further changes as he may agree to, the Registrar may, after giving the society an opportunity for making its representations, register the amendments as required or agreed to by him and issue to the society a copy of such amendments together with a certificate of registration signed and sealed by him, and thereupon such amendment shall be binding on the society and its members. (7) The provisions of sub-section (4) of S.11 shall not apply when action is taken under sub-section (5) and (6) of this section."
That Section does not confer any power on the Registrar to cancel a registration once validly made even on the ground of mistake. If there is actually a mistake, the respondents are not without any remedy as such. Section 87 of the Kerala Co-operative Societies Act, 1969, provides for an adequate remedy. The said Section reads as follows:
"87. Powers of revision of Registrar and Government.-
(1) The Registrar may of his own motion or on application call for and examine the records of any officer subordinate to him not being an officer exercising the powers of the Registrar and the Government may of their own motion or on application call for and examine the records of the Registrar including any officer exercising the powers of the Registrar, in respect of any proceeding, not being a proceeding in respect of which an appeal to the Tribunal is provided by Sec.82, to satisfy himself or themselves as to the regularity of such proceedings, or the correctness, legality or propriety of any decision passed or order made thereon and if, in any case it appears to the Registrar or the Government that any such decision or order should be modified, annulled, reversed or remitted for W.P.(C)No.2033 of 2007 -5- reconsideration, he or they may pass orders accordingly:
Provided that every application to the Registrar or the Government for the exercise of the powers under this section shall be preferred within three months from the date on which the proceeding, decision or order to which the application relates was communicated to the applicant.
(2) No order prejudicial to any person shall be passed under sub section (1) unless such person has been given an opportunity of making his representation.
(3) The Registrar or the Government, as the case may be, may suspend the execution of any decision or order pending the exercise of his or their power under sub-section (1) in respect thereof.
(4) The Registrar or the Government may award costs in proceedings under this section to be paid either out of the funds of the society or by such party to the application for revision as the Registrar or the Government may deem fit."
Therefore, the proper course open to the respondents was either for the 1st respondent to bring to the attention of the Government the alleged illegality so as to enable the Government to exercise powers of suo motu revision of the registration of the bye-laws. It is also open to the 2nd respondent to file a revision before the Government under Section 87. But the 1st respondent cannot suo motu revise the registration once granted or cancel the same. For that reason, Ext.P7 order is vitiated. Accordingly, Ext.P7 is quashed. However, I make it clear that this will W.P.(C)No.2033 of 2007 -6- not stand in the way of either the 1st respondent or the 2nd respondent approaching the Government under Section 87 for appropriate reliefs.
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S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/