Kerala High Court
Radhakrishnan vs The Joint Registrar Of Co-Operative (G) on 4 June, 2009
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31430 of 2008(N)
1. RADHAKRISHNAN, PRESIDENT (EARLIER),
... Petitioner
2. K.C. KUNJIKRISHNAN NAIR, COMMITTEE
3. P.SUDHAKARAN, COMMITTEE MEMEBER
4. DEEPA ORALAKANDI, COMMITTEE MEMEBER
5. DEVI C.T. COMMITTEE MEMEBER,
6. A.K.ANSAN, COMMITTEE MEMEBER,
7. RAMESH BABU, COMMITTEE MEMEBER,
8. T.U.IBRAHIM, COMMITTEE MEMEBER
9. K.P. MAMMED COMMITTEE MEMEBER,
Vs
1. THE JOINT REGISTRAR OF CO-OPERATIVE (G),
... Respondent
2. THE UNIT INSPECTOR, QUILANDI UNIT,
3. THE DISTRICT CO-OPERATIVE BANK,
4. THE CIRCLE CO-OPERATIVE UNION, QUILANDI
For Petitioner :SRI.P.P.JACOB
For Respondent :SRI.P.V.KUNHIKRISHNAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :04/06/2009
O R D E R
ANTONY DOMINIC,J.
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W.P.(C).No.31430 OF 2008
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Dated this the 4th day of June, 2009.
JUDGMENT
Challenge in this writ petition is against Exts.P19 and P20. Ext.P19 is an order purported to be passed under Section 32 of the Co-operative Societies Act and Ext.P20 is an order passed under Section 33 of the Act, appointing an Administrator of the Naduvannur Regional Co-operative Bank Ltd.
2. Petitioners state that pursuant to an election that was held on 12.8.2009, they assumed office of the Committee of the Society immediately thereafter. It is stated that prior to their assumption of office pursuant to an order passed by the Joint Registrar, an enquiry under Section 65 of the Act was conducted and Ext.P4 report dated 29.62007 was submitted. It is the admitted position that six of the petitioners were members of the previous WP(c).No.31430/08 2 committee. Subsequently they were issued Ext.P5 notice under Section 32 of the Act calling upon them to show cause against supersession of the committee. It is stated that a reply was given by them and thereafter they filed a writ petition before this court as WP(c).No.22662/08. In that case, Ext.P17 interim order was passed by this court directing that their objections shall be considered while passing orders pursuant to Ext.P5. Later, Ext.P18 supplementary reply was also filed. They were heard and finally Ext.P19 order was passed superseding the Committee. It is to be noticed that by this order, Administrator was not appointed to the society. Subsequently, Administrator was appointed, by Ext.P20 referring to Section 33 of the Societies Act. It is in these circumstances the writ petition has been filed challenging the aforesaid orders.
3. The first contention raised by the counsel for the petitioner is that the findings in Ext.P19 order issued under Section 32 are, pertaining to acts/omissions committed during the period when the previous Committee were in office. It is stated that Section 32 does not contemplate supersession of the present Committee for acts or omissions of previous WP(c).No.31430/08 3 committees. This contention of the learned counsel for the petitioner was contradicted by the learned Government Pleader referring to Section 32 itself and contending that section only makes reference to committees and therefore it is possible to take action against the committee in office. She place reliance on the judgment of this court in Mohanan V. State of Kerala (2004(2) KLT 873). However, the learned counsel for the petitioner has invited my attention to the Division Bench judgment in W.A. No.1363/04, where the judgment relied on by the learned Government Pleader has been set aside. The Division Bench judgment, in so far as it is relevant, reads as under.
"From a perusal of Ext.P1 notice and Ext.P3 order and the averments in the writ petition and the counter affidavit it is abundantlydefaultsthatwere clear the alleged committedirregularities by the Board ofand Directors which was in office from 27.6.1998 to 17.52003. The present Board of Directors took charge only on 18.5.2003. Therefore, the only question to be considered is whether the preset Board of Directors can be removed under Section 32 of the Kerala Co-operative Societies Act for the irregularities and defaults alleged to have been committed by the previous Board of Directors. Section 32 of the Kerala C0-operative Societies Act canhas invoked onlythe be against a committee which defaults. Removal of a committeeirregularities committed or for the defaults and irregularities of a previous committee is not WP(c).No.31430/08 4 contemplated by Section 32. It may be pointed out that under Rule 44(1)(k) of the Kerala Co- operative societies Rules, no member of the society shall be eligible for being elected or appointed as a member of the committee of the society under Section 28 if he was a member of the committee which has been superseded and a period of one year has not elapsed from the date of super session,. Thus removal of the committee under Section 32 caststhestigma and imposesthe a a disqualification on members of committee and the removal visits such members with serious consequences. Therefore we are of the view that the committee of a co-operative society cannot be superseded under Section 32 of the Kerala Co-operative Societies Act for the defaults and irregularities alleged to have been committed by a previous committee. In this view of the matter Exts.P1 and P3 are liable to be quashed.
4. It is also informed that a similar view has been taken by another learned single Judge of this court in WP(c). No.6245/04. From the judgment of the Division Bench and also the judgment of the learned single Judge in WP(c). 6245/04, it is obvious that the Committee in office cannot be proceeded against under Section 32 of the Act, for the acts/omissions of the previous Committees.
5. True the learned Government Pleader sought to distinguish the judgments relied on by the petitioners contending that six of the petitioners were members of the WP(c).No.31430/08 5 previous Committees. Though this factual position is not in dispute, that contention also has been dealt with by the Division Bench in the judgment referred to above. As in the case dealt with by the Division Bench, apart from a vague statement that the committee in office did not cure the defects, that is not relied on as a ground for supercession. Therefore that by itself does not alter the situation to the advantage of the respondents. It was contended that Ext.P19 order is incomplete in as much as the Administrator was not appointed. A reading of Section 32 shows that once the Committee is ordered to be removed, it is incumbent on the part of the Registrar either to appoint a new committee or appoint not more than 3 Administrators, to manage the affairs of the Society for a period not exceeding 6 months as specified in the order, so that there is no vacuum in the administration of the society. To make appointment of a Committee or Administrator is part of the power to remove the Committee and in this case by Ext.P9 though Committee is ordered to be removed, no appointment of Arbitrator is ordered. Therefore in that sense, Ext.P19 order is incomplete WP(c).No.31430/08 6 and illegal. Coming to Ext.P20, counsel for the petitioner contends that subsequent appointment of administrator has been made exercising the powers under Section 33 of the Act. Section 33 as is obvious from the very wording of the section itself, comes into operation only in the circumstances mentioned in the section. A reading of the order Exts.P19 and P20 and the facts of this case will show that none of the circumstances justifying invocation of the power under Section 33 are available in this case. For these reasons Exts.P19 and P20 deserves to be set aside and I do so.
It is directed that the management of the society shall be entrusted to the Committee consisting of the petitioners on the production of a copy of the judgment.
Writ petition is disposed of as above.
(ANTONY DOMINIC) JUDGE vi/ WP(c).No.31430/08 7