Kerala High Court
Kadukutty Service Co-Operative Bank ... vs State Of Kerala on 16 September, 2015
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938
WP(C).No. 29362 of 2015 (U)
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PETITIONER :
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KADUKUTTY SERVICE CO-OPERATIVE BANK LIMITED NO.628,
P.O.KADUKUTTY, THRISSUR,
REPRESENTED BY ITS SECRETARY.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
CO-OPERATIVE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM-695 001.
3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
(GENERAL), THRISSUR-680 001.
4. THE CHALAKKUDY TOWN CO-OPERATIVE BANK LIMITED NO.R 828,
CHALAKKUDY P.O., THRISSUR DISTRICT-680 101.
R1 TO R3 BY GOVERNMENT PLEADER SRI.G.GOPAKUMAR
R4 BY ADVS. SRI.V.G.ARUN
SRI.T.R.HARIKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-07-2016, THE COURT ON 15-07-2016 DELIVERED
THE FOLLOWING:
sts
WP(C).No. 29362 of 2015 (U)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE NOTICE ALONG WITH ITS ENGLISH
TRANSLATION.
EXHIBIT P2: PHOTOGRAPHS.
EXHIBIT P3: TRUE COPY OF THE TENTATIVE BALANCE SHEET OF THE PETITIONER
SOCIETY FOR THE YEAR 2013-2014.
EXHIBIT P4: TRUE COPY OF THE REPRESENTATION PREFERRED BY THE BANK
DATED 16.9.2015.
EXHIBIT P5: TRUE COPY OF THE AMENDED BYE-LAW APPROVED BY THE 3RD
RESPONDENT ALONG WITH THE RELEVANT PORTION OF THE
ENGLISH TRANSLATION
EXHIBIT P6: TRUE COPY OF THE ORDER DATED 7/8/2015 ALONG WITH ENGLISH
TRANSLATION
RESPONDENT(S)' EXHIBITS
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EXHIBIT R4(A): COPY OF THE REGISTRATION CERTIFICATE AND CATEGORICAL
STATEMENT ISSUED BY THE 3RD RESPONDENT TO THE 4TH
RESPONDENT ALONG WITH ACOVERING LETTER DATED 27/09/1993
EXHIBIT R4(B): COPY OF THE AMENDED BYELAW OF THE 4TH RESPONDENT
SOCIETY APPROVED BY THE 3RD RESPONDENT ON 16/07/2012
ALONG RELEVANT PORTION OF THE ENGLISH TRANSLATION
EXHIBIT R4(C): COPY OF THE BYELAW AMENDMENT CERTIFICATE DATED
16/07/2012 ISSUED BY THE 3RD RESPONDENT ALONG WITH
ENGLISH TRANSLATION
EXHIBIT R4(D): COPY OF THE ORDER NO.C.R.B.428/15/K.DIS DATED 07/08/2015
ISSUED BY THE 3RD RESPONDENT ALONG WITH ENGLISH
TRANSLATION
EXHIBIT R4(E); COPY OF THE RENT RECEIPT DATED 30/12/2015.
EXHIBIT R4(F): COPY OF THE ORDER NO.C.R.B.3772/2016/K.DIS DATED 24/05/2016
OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL), THRISSUR
EXHIBIT R4(G): COPY OF THE RELEVANT PAGES OF THE BYELAWS OF THE
PETITIONER SOCIETY.
EXHIBIT R4(H): COPY OF THE RELEVANT PAGES OF THE 4TH RESPONDENT
SOCIETY.
/TRUE COPY/
sts P.S.TO JUDGE
SHAJI P. CHALY, J.
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W.P.(C) No.29362 of 2015
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Dated this the 15th day of July, 2016
JUDGMENT
This writ petition is filed by the petitioner, Co-operative Bank, seeking direction to the respondents not to permit the 4th respondent to commence its branch at Kadukutty beyond its area of operation and in the area of operation of the petitioner Bank and further to declare that since the area of operation of the 4th respondent Society is within Chalakudy Municipality alone, any attempt to open a branch beyond its area of operation is highly unjust and illegal, and for other related reliefs. Material facts for the disposal of the writ petition are as follows:
2. Petitioner is a Primary Credit Co-operative Society registered under the provisions of the Kerala Co-operative Societies Act, 1969 [for short, 'the Act'] and Kerala Co-
operative Societies Rules, 1969 [for short, 'the Rules'] framed thereunder. Petitioner Society is established in the year 1947 and the area of operation of the society extends to the entire Kallur Vadakkumuri village which comprises the entire W.P.(C) No.29362 of 2015 2 Kadukutty Grama Panchayat. The 4th respondent is an Urban Co-operative Society as defined under Sec.2 (taa) and its area of operation is in the Chalakudy Municipality. That Sec.2 of the Act defines various types of Co-operative Societies and in terms of the same, petitioner Society falls under the category of Sec.2(od).
3. That apart, it is contended that, in terms of Rule 15 of the Rules, Societies are classified according to its type and the classifications are so made according to the principal objectives as provided in the bye-law of the society. Grievance raised in this writ petition is that the 4th respondent society is now proposing to extend its business to Kadukutty Panchayat and there is a proposal to commence a new Branch at Kadukutty town and that too, adjacent to the building where the petitioner society is housed and the 4th respondent has issued a public notice accordingly, evident from Ext.P1. That apart, 4th respondent has put up a board at Building No.3/340
(a), (b), (c) and (d) advertising the inauguration of the branch at Kadukutty, evident from Ext.P2. It is also contended that, 4th respondent has preferred an application before the 3rd respondent seeking permission to open the branch at W.P.(C) No.29362 of 2015 3 Kadukutty and it is the contention of the petitioner that, opening of such a branch is illegal, since the 4th respondent being an Urban Co-operative Society and its area of operation is Chalakkudy Municipality alone, it cannot operate its business beyond the area of operation. Further, in terms of Sec.7(c) of the Act, registration is granted to a society, if the Registrar is satisfied that the proposed society complies with the requirement of sound business and only under that circumstances the bye-law of such society can be registered. The bye-law of the 4th respondent society has so far not been amended to expand the business beyond its present area of operation and such amendment cannot be allowed since it will change the character of the 4th respondent society. That the operation of the 4th respondent society will also hamper the interest of the petitioner society. Petitioner has submitted Ext.P4 representation before the 2nd respondent with copy to the 3rd respondent, objecting to the proposal to open up a new branch by the 4th respondent. That apart, it is contended that, the area of operation is fixed for each society so as to avoid overlapping in the functioning of the societies and also to avoid unhealthy competition among societies. Petitioner apprehends W.P.(C) No.29362 of 2015 4 that the 4th respondent has sufficient political clout to secure permission to open up the branch in question.
4. Against these background facts, 4th respondent has filed a counter affidavit contending that the 4th respondent has amended its bye-laws which was approved by the Registrar of Co-operative Societies, extending its area of operation to Kadukutty Panchayat also since the area falls within the Chalakudy Assembly constituency. Thereupon, petitioner has amended the writ petition challenging Ext.P5 bye-law of the 4th respondent approved by the 3rd respondent. According to the petitioner, clause (3) of the bye-law was amended expanding its area of operation from Chalakudy Municipality to entire Chalakudy Assembly constituency excluding Kodakara Panchayat. Even though the amendment is approved by the Joint Registrar, the Registrar has not till today granted any permission, leave alone any prior permission and hence even though bye-law is approved, it has not come into force. But the 3rd respondent without taking note of the same, has issued proceedings dated 07.08.2015, sanctioning a branch at Kadukutty Panchayat, evident from Ext.P6. Therefore, it is the contention of the petitioner that, as provided under the Act W.P.(C) No.29362 of 2015 5 and the Rules, the entire action of the 3rd respondent is illegal and arbitrary and therefore petitioner seeks to quash Ext.P5 bye-laws and Ext.P6 order, apart from other related reliefs narrated above.
5. Fourth respondent has filed a counter affidavit and an additional counter affidavit consequent to the amendment of the writ petition by the petitioner. Apart from denying the statements and claims and demands made by the petitioner, it is contended that the 4th respondent society was established on 27.09.1993 with its area of operation spread over the whole of Chalakkudy Municipality, evident from Ext.R4(a) Registration Certificate and Categorical Statement issued by the 3rd respondent. It is evident from the Categorical Statement that the 4th respondent has been registered as a Type 2(c) Non- Agricultural Credit Society. On the other hand, petitioner is a Primary Agricultural Credit Society defined under Sec.2(oaa) of the Act. The principal object of which is the grant of agricultural loans. Therefore, the contention of the 4th respondent is that, as contended by the petitioner, there is no interdiction under Sec.7(1)(c) of the Act, merely because the petitioner and the 4th respondent society falls under the W.P.(C) No.29362 of 2015 6 general clause of Credit Societies and it does not make it similar type of Societies so far as the principal objective of the Societies are concerned.
6. It is also contended that, in view of the progress achieved by the 4th respondent and in order to cater to the needs of the public in a wider area, the general body of the 4th respondent society decided to amend its bye-law by expanding the area of operation of the Society over the Chalakkudy Assembly constituency, except Kodakara Panchayat. The bye- law amendment proposed by the general body was approved by the 3rd respondent and the amended bye-laws were registered on 16.07.2012, evident from Ext.R4(b) and the Certificate issued accordingly dated 16.07.2012 by the 3rd respondent is evident from Ext.R4(c). According to the 4th respondent, on issuance of Ext.R4(c) certificate, the area of operation of the 4th respondent society stood expanded over Kadukutty Panchayat also since that area falls within the Chalakkudy Assembly constituency. Therefore, the branch proposed to be opened is within the area of operation of the 4th respondent society. After expanding its area of operation over the Kadukutty Panchayat area, many persons from the area W.P.(C) No.29362 of 2015 7 have enrolled as members of the 4th respondent society and have availed the services of the society by taking loans, subscribing to MDS and making fixed deposits. As on date, there are more than 1500 members in the 4th respondent society from Kadukutty area. The branch was opened consequent to the incessant demand made by the people residing in the area to cater to the needs of the members from that area. It was under such circumstances, a request was made before the 3rd respondent seeking permission to open a branch at Kadukutty.
7. That apart, it is contended that, based on the recommendation of the Assistant Registrar, Mukundapuram and thereafter based on the joint survey conducted by the 3rd respondent along with the Joint Director of the Co-operative Audit and on being satisfied that the instructions of the Registrar of Co-operative Societies are duly complied with, 3rd respondent has issued an order granting permission to the 4th respondent to open the new branch, evident from Ext.R4(d) issued by the 3rd respondent dated 07.08.2015. In Ext.R4(d), a stipulation is incorporated that the newly sanctioned branch should commence operation within six months. Therefore, W.P.(C) No.29362 of 2015 8 immediately after obtaining the said order, 4th respondent society located an appropriate building to house the new branch and has taken on lease rooms bearing No.3/340A and 3/340B in Kadukutty town. Thereupon, an agreement was executed with the landlord dated 23.09.2015 and has paid an advance of Rs.2 lakhs to the landlord and has been paying monthly rent of Rs.22,000/- from September, 2015 onwards, evident from Ext.R4(e). Thereafter, petitioner has carried out necessary interior work including construction of locker room for the purpose of opening the new branch. It is at that stage, petitioner has approached this Court by filing the writ petition.
8. Fourth respondent has filed an additional counter affidavit reiterating the stand taken in the counter affidavit and further controverting the allegations in the writ petition based on the amendment made by the petitioner to the writ petition. It is also contended that, the petitioner has no manner of locus standi to challenge the bye-law approved by the 3rd respondent in the year 2012, and if at all the petitioner has any right to challenge the same, the remedy available to the petitioner is under Sec.83(1)(j) of the Act, which obviously has become time barred. Therefore, the attempt of the petitioner by W.P.(C) No.29362 of 2015 9 amending the writ petition is to get over the limitation prescribed under the Act to prefer an appeal against the approval of the bye-law by the statutory authority. That apart, it is also contended that, the entire action initiated by the 2nd and 3rd respondents are within their competence and the petitioner has no manner of authority to challenge the orders passed by the statutory authorities, since they are absolutely in terms of the statutory stipulations. Moreover, it is contended that, petitioner has challenged only Ext.P4 without challenging Ext.R4(c) Certificate of amendment and therefore the challenge itself is not sustainable under law. Fourth respondent has also produced relevant pages of the bye-laws, evident from Ext.R4(g) and contended that the objective of the petitioner society is entirely different. It has also produced relevant pages of bye-laws of the 4th respondent society as Ext.R4(h) and contends that the objective of the 4th respondent is entirely different from the objectives of the petitioner society. Therefore, the 4th respondent seeks dismissal of the writ petition.
9. Heard learned counsel for the petitioner, learned Government Pleader and the learned counsel appearing for the W.P.(C) No.29362 of 2015 10 4th respondent. Perused the pleadings and the documents on record.
10. The primary question to be decided in this case is whether there is any violation of statutory provision in the action of the 3rd respondent approving the bye-laws of the 4th respondent and passing the respective order to open up a branch in Kadukutty Panchayat. Learned counsel for the petitioner reiterated the contentions in the writ petition. That apart, it is contended that, petitioner society falls under Sec.2 (od) of the Act, which read thus:
"2(od). "Primary Co-operative Society" means a society having jurisdiction over a revenue district as a whole or over any specified area within such revenue district and having individual or individuals and other Co-operative Societies as its members".
That apart, it is also contended that the 4th respondent society is coming under Sec.2(taa) of the Act, which read thus:
"2(taa). "Urban Co-operative Society" means a Co-operative Society the principal object of which is to undertake non-agricultural credit activities and to raise funds to be lent to its members with its area of operation confined to a municipality or a corporation."
11. Therefore, the contention of the petitioner is that, so far as the petitioner society is concerned, it has its W.P.(C) No.29362 of 2015 11 operational jurisdiction over a Revenue District as a whole or over any specified area within such Revenue District and having individual or individuals and other Co-operative Societies as its members. Whereas, the 4th respondent society is concerned, its operation is limited to a Municipality or a Corporation. Therefore, it is the contention of the petitioner that 4th respondent is a society functioning within the Chalakkudy Municipality and therefore to expand its area of operation to Kadukutty is not permissible under Sec.2(taa) of the Act.
12. It is also contended that, on a reference to Exts.P1 and P2, it is categoric and clear that 4th respondent is intending to opening up the branch very near to the petitioner's branch, which will cause unhealthy competition and irreparable loss and injury to the petitioner apart from being illegal. That apart, it is contended that, Ext.P5 bye-law of the 4th respondent is a conditional one and there is no written permission secured to put the bye-law into force. That apart, it is also contended that, the amendment of the bye-law is bad since the nature and character of the society is changed. It is also urged that Rule 15 of the Rules classify the societies and W.P.(C) No.29362 of 2015 12 in accordance with the classification, the 4th respondent is not entitled to carry out the objectives in accordance with the amendment made to the bye-laws. Learned counsel has also taken me through Sec.12 of the Act, which deals with the parameters for amendment of bye-law and contends that the stipulations contained under the said Section are not complied with by respondents 2 and 3. That apart, Sec.7 also was brought to my notice which deals with registration of the society and invited my attention to clauses (c) and (d) of Sec.7 (1) which reads that, if the Registrar is satisfied that the area of operation of the proposed society and the area of operation of another society of similar type do not overlap and that the proposed bye-laws are not contrary to the provisions of this Act and the rules alone, registration is to be granted. That apart, it is also contended that, the Registrar should also be satisfied that the objects of the proposed society are in accordance with Sec.4, in terms of Sec.7(1)(d). According to learned counsel for the petitioner, none of the mandates contained under these provisions are seriously considered by respondents 2 and 3 before approving the amendment of the bye-laws of the 4th respondent and granting registration W.P.(C) No.29362 of 2015 13 accordingly.
13. Learned counsel also contended that the petitioner was not aware of the amendment of the bye-laws in the year 2012 and therefore the petitioner could not challenge the same invoking the provisions of Sec.83(1)(j). Petitioner came to know about the amendment of the bye-laws only when the counter affidavit is filed by the 4th respondent in this writ petition, and the only alternative remedy available to the petitioner is to challenge the same by incorporating necessary amendments to the writ petition since the period prescribed for filing appeal as per Sec.83(1)(j) is within 60 days of the approval of the amendment by the statutory authority. With the aforesaid contention, learned counsel contends that Exts.P4 and P5 are to be quashed and the 4th respondent is to be interdicted from opening up the new branch in Kadukutty Panchayat.
14. Per contra, learned counsel for the 4th respondent contended that Sec.2(aa) was introduced into the statute book only with effect from 28.04.2010. The 4th respondent society was registered on 27.09.1993, evident from Ext.R4(a) and from the Categorical Statement attached to the same, it can W.P.(C) No.29362 of 2015 14 be seen that the 4th respondent was registered as per the then existing Sec.2(c) as a Non-agricultural Credit Society having its area of operation in Chalakkudy Municipality. According to the learned counsel, in accordance with classification made under Rule 15, there is no classification as 'Non-agricultural Credit Society'. But since Rule 15 classifies the societies in accordance with its principal object, going by the definition contained under Sec.2(taa), petitioner comes under the classification of Urban Co-operative Society, the principal object of which is to undertake non-agricultural credit activities and raise funds to lent to its members with its area of operation confined to a Municipality or a Corporation. However, learned counsel has invited my attention to the proviso to the said section which reads thus:
"Provided that the restriction regarding the area of operation shall not be applicable to the existing Urban Co-operative Societies".
15. Therefore, it can be seen that the restriction provided under Sec.2(aa) is diluted by the proviso, since the proviso enables that the area of operation restricted under Sec.2(taa) shall not be applicable to the existing Urban Co- operative Societies.
W.P.(C) No.29362 of 2015 15
16. It is also contended that, the bye-law was approved as early as on 16.07.2012 and no challenge was made by any one till this time. According to the learned counsel, the 4th respondent has complied with all the statutory formalities contemplated under the Act and Rules, thus enabling it to secure Ext.P6 order in order to start a branch at Kadukutty Panchayat. So also, it is contended that, the principal objective of the petitioner Bank and the 4th respondent society is entirely different, and therefore as apprehended by the petitioner, there will not be any manner of unhealthy competition between the Bank and the 4th respondent society. Learned counsel has also invited my attention to Sec.7(1)(d) of the Act, which read that "the proposed bye-laws are not contrary to the provisions of this Act and the Rules". Therefore, it is the contention of the learned counsel that the 2nd and 3rd respondents have taken necessary action on being satisfied that the entire actions of the 4th respondent society are in accordance with the Act and the Rules. Therefore, it is the contention that, petitioner has not made out any case so as to exercise the discretionary jurisdiction of this Court conferred under Article 226 of the Constitution of India. W.P.(C) No.29362 of 2015 16 Learned counsel has also invited my attention to Rule 15 of the Rules and canvassed the proposition that overlapping contemplated under law can only be based on the principal objective of the respective societies. Therefore, since the principal objective of both the societies are entirely different, the petitioner has no manner of locus standi to challenge the order provided to the 4th respondent by the statutory authorities to open up the new branch.
17. To counter the argument advanced by the learned counsel for the 4th respondent with respect to the proviso to Sec.2(taa), it is contended that, it intends the existing area of operation and if the proviso is interpreted in any other manner, same will lead to situations where the 4th respondent will be able to open up a branch anywhere in the State. However, such a contention may not have much bearing because the area of operation of the societies and Banks are restricted in accordance with the stipulations contained under the definition clause of the Act itself.
18. Learned counsel for the 4th respondent has invited my attention to the judgment of this Court in 'Kasaragod Co- operative Land Mortgage Bank v. State of Kerala and W.P.(C) No.29362 of 2015 17 others' [1976 KLT 437], wherein a Division Bench of this Court had occasion to consider the maintainability of a writ petition by an existing society challenging the operation of a new society to be registered falling in part within the area of another society and held as follows in paragraph 2:
"2. The question arises in this case in regard to the affairs of the Kasaragod Co-operative Land Mortgage Bank, whose area of operation falls in part within the area of opration of the Hosdurg Taluk Land Mortgage Bank, which has been directed to be registered under Sec.7(1) of the Co-operative Societies Act. The contention raised by the petitioner's counsel is that the Registrar (in this case actually the action was taken by the Deputy Registrar) has not applied his mind to, or been satisfied about, the condition under Sec.7(1)(c) of the Act namely that the areas of the two Societies should not overlap before registration could be granted. For the one thing, we are not prepared to accept this on the averment of the petitioner, for another, assuming that this is so, and that he granted registration overlooking this requirement, it appears to us that a Society like the petitioner cannot have any legal grievance against the action which can be redressed under Art.226. To that effect is the recent decision of the Supreme Court in J.M. Desai v. Roshan Kumar (AIR 1976 SC 578)."
W.P.(C) No.29362 of 2015 18
19. Therefore, the contention of the learned counsel for the 4th respondent is that, petitioner has no right at all to challenge the opening of the branch at Kadukutty Panchayat. Moreover, it is also contended that, the Registration certificate issued by the authority is not under challenge. That apart, it is further contended that the petitioner is not at liberty to challenge a clause in the bye-law.
20. On an evaluation of the entire facts and circumstances, the arguments put across the Bar and the discussions made above, it is categoric and clear that the 4th respondent society has complied with all the statutory requirements under the Act and the Rules, thus enabling it to open up a new branch at Kadukutty Panchayat. In my considered opinion, the proviso to Sec.2(taa) protects the endeavour made by the 4th respondent society to open up the new branch. It is evident from Sec.2(taa) that the operation of the existing Urban Co-operative Society is circumscribed to a Municipal or Corporation area but however, the existing societies are protected from extending its operations to such areas by incorporating the proviso to the said section, which thus means, 4th respondent is entitled to open up the new W.P.(C) No.29362 of 2015 19 branch. 21. That apart, I also find that the principal objectives of the petitioner as well as the 4th respondent society are entirely different and therefore there also the 4th respondent society is protected as provided under Sec.7(1)(d) of the Act. In my considered opinion, there are no provisions under the bye-laws of the 4th respondent society violative of the provisions of the Act and the Rules. Therefore, it can be safely concluded that the amendment of the bye-laws of the 4th respondent society is in accordance with the terms of the Act and the Rules. I do not think that the petitioner has succeeded in establishing that the 4th respondent has committed any illegality to secure amendment of the bye-laws to extend its activities to Kadukutty Panchayat area. In that regard, it can also be concluded that 2nd and 3rd respondents were exercising their powers in accordance with the terms of the Act and the Rules and issued respective orders for the 4th respondent to start a new branch. Moreover, in terms of the judgment cited supra, I am of the considered opinion that the petitioner society having not affected in any manner, much less legally, petitioner is not entitled as of right to challenge the amendment of the bye-laws as well as the opening up of the W.P.(C) No.29362 of 2015 20 new branch by the 4th respondent society.
22. As a last submission, learned counsel for the petitioner made a request that, since the petitioner came to know of the amendment of the bye-laws only when the counter affidavit is filed before this Court by the 4th respondent, petitioner may be provided with an opportunity to challenge the same in appeal, as provided under Sec.83(1)(j) of the Act. However, since the amendment of the bye-law and the respective orders passed by the statutory authorities are intrinsically connected with the issues in this writ petition and the veracity and legality of the said bye-laws had to be considered by me to arrive at conclusions in the writ petition and since the question with respect to the amendment of the bye-laws had to be decided, there is no scope for providing such an opportunity to the petitioner to challenge the amendment to the bye-laws any further.
23. Therefore, reckoning the entire fact situations and the law on the subject issue, I am of the considered opinion that, petitioner has failed to establish that, it is entitled to get the reliefs sought for.
W.P.(C) No.29362 of 2015 21
Resultantly writ petition fails, and it is accordingly dismissed.
Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
14.07.2016