Kerala High Court
K.Satheesh vs The State Of Kerala on 6 June, 2022
Author: Alexander Thomas
Bench: Alexander Thomas
WA NO. 303 OF 2022 & WA NO. 305 OF 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 6TH DAY OF JUNE 2022 / 16TH JYAISHTA, 1944
WA NO. 303 OF 2022
AGAINST THE JUDGMENT DATED 23.02.2022 IN WP(C) 2969/2022 OF HIGH
COURT OF KERALA
APPELLANTS:
1 N.PREMAKUMARAN
AGED 70 YEARS
S/O. T.O. KRISHNAN, PRESIDENT, AKATHETHARA SERVICE CO-
OPERATIVE BANK LTD, NO.F 1514, AKATHETHARA - 678008,
PALAKKAD DISTRICT.
2 E. SUSHEELKUMAR
AGED 64 YEARS
S/O. SWAMINATHAN, DIRECTOR, AKATHETHARA SERVICE CO-
OPERATIVE BANK LTD, NO.F 1514, AKATHETHARA - 678008,
PALAKKAD DISTRICT.
BY ADVS.
K.T.THOMAS
MATHEW BOB KURIAN
NIKHIL BERNY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, CO-OPERATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL), CIVIL STATION, PALAKKAD - 678001.
3 THE UNIT INSPECTOR (MALAMPUZHA )
OFFICE OF ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE
SOCIETIES, CIVIL STATION, PALAKKAD - 678001.
4 AKATHETHARA SERVICE CO-OPERATIVE BANK LTD,
WA NO. 303 OF 2022 & WA NO. 305 OF 2022
NO. F. 1514, AKATHETHARA - 678008, PALAKKAD DISTRICT,
REPRESENTED BY ITS SECRETARY.
SRI T.K.VIPINDAS-SR.GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.06.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA NO. 303 OF 2022 & WA NO. 305 OF 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
MONDAY, THE 6TH DAY OF JUNE 2022 / 16TH JYAISHTA, 1944
WA NO. 305 OF 2022
AGAINST THE JUDGMENT DATED 23.02.2022 IN WP(C) 3136/2022 OF HIGH
COURT OF KERALA
APPELLANT:
1 K.SATHEESH,
AGED 47 YEARS
AGED 47 YEARS,S/O.K.K.UNNI
(LATE),KIZHAKKEVEEDU,KORATHODI,KADUKKAM KUNNAM
P.O.,PALAKKAD-678 651.
2 PRASEETHA T.M.,
D/O.RADHAKRISHNAN T.,T.M.EDOM,AKATHETHARA
P.O.,PALAKKAD-678 008.
BY ADVS.
LIJI.J.VADAKEDOM
REXY ELIZABETH THOMAS
TOM E. JACOB
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,CO-OPERATION
DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM-695 001.
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL),
OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL),CIVIL STATION,
PALAKKAD-678 001.
3 THE UNIT INSPECTOR (MALAMPUZHA),
OFFICE OF ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE
SOCIETIES,
CIVIL STATION,PALAKKAD-678 001.
WA NO. 303 OF 2022 & WA NO. 305 OF 2022
4 AKATHETHARA SERVICE CO-OPERATIVE BANK LTD. NO.F/1514,
REPRESENTED BY ITS SECRETARY,AKATHETHARA-
678008,PALAKKAD DISTRICT.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.06.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA NO. 303 OF 2022 & WA No.305 of 2022
1
ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
===================================
Writ Appeal No.303 of 2022
(arising out of the judgment dated 23.02.2022 in WP(C) No.2969/2022)
Writ Appeal No.305 of 2022
(arising out of the judgment dated 23.02.2022 in WP(C) No.3136/2022)
=========================================
Dated this the 6th of June, 2022
JUDGMENT
Alexander Thomas, J.
These appeals arising out of impugned judgment rendered by the learned Single Judge on in common judgment dated 23.02.2022 in WP(C) Nos.2969/2022 and 3136/2022.
2. Heard Sri.K.T.Thomas, learned Counsel appearing for the appellants in Writ Appeal No.303/2022 arising out of WP(C) No.2969/2022 and Sri.Liji.J Vadakedom, learned Counsel appearing for the appellants in WA No.305/2022 arising out of WP(C) No.3136/2022 and Sri.T.K.Vipindas, learned Senior Government Pleader appearing for the official respondents in these appeals. Since respondent Co-operative Society had not entered appearance at the WP(C) stage, notice to that party will stand dispensed with. The essential challenge made in these writ proceedings is against the notice dated 17.01.2022 (produced as Ext.P12 in WP(C) No.2969/2022 and as Ext.P10 in WP(C) No.3136/2022) issued by the 2nd Respondent Joint Registrar of WA NO. 303 OF 2022 & WA No.305 of 2022 2 Co-operative Societies, whereby it has been proposed to take action in terms of Section 32 of the Kerala Co-operative Societies Act for the supersession of the Managing Committee of the Co-operative Society concerned. Incidentally, a challenge is also made as against the Enquiry Report dated 29.11.2021, issued by the respondent Unit Inspector concerned, under Section 66 read with Rule 66 in WP(C) No. 2969/2022, wherein copy of the said Enquiry report has been produced as Ext.P10.
3. The learned Single Judge after hearing both sides has rendered the impugned judgment on 23.01.2022, disposing of both the WP(C)s ordering that since the order under challenge is only a showcause notice under Section 32, it is for the respondent Joint Registrar to proceed further in the matter in accordance with law and all contentions available to the writ petitioners are kept open to be raised before the respondent Joint Registrar in the said proceedings. We are now told that in view of the subsequent conduct of elections by the Managing Committee, the term of Managing Committee which was in power at the time of issuance of the showcause notice and the initiation of writ proceedings, is over and the newly elected Managing Committee has taken charge on 05.06.2022. The Full Bench of this Court in the decision in WA NO. 303 OF 2022 & WA No.305 of 2022 3 Anil M.S Vs. Joint Registrar (General) of Co-operative Societies, Thiruvananthapuram, [2021 (4) KHC 119] (FB) has held in sub paragraph 2 of paragraph 25 thereof that Matsyafed's case, (The Administrator, Kerala State Co-operative Federation for Fisheries Development Ltd (Matsyafed Vs. Board of Directors) in WA No.1936/2011), is no more good law to be followed as a precedent. Further that when the Managing Committee of the Society is not actually existing, the fact that the proceedings initiated against it under Section 32 of the KCS Act for supersession, but could not be completed due to expiry of the prescribed term of the Committee, is no ground to permit continuation of such proceedings for supersession against a non- existent Committee even for the limited purpose of conducting it notionally and subject to its outcome to impose constitutional disqualifications under Section 32(1)(e) of the KCS Act. It was held by the Full Bench therein that even in a case where, on initiation proceedings for supersession, an order of supersession was passed and an Administrator for Administrative Committee was appointed, once the order of supersession is successfully challenged and in the meanwhile, the prescribed term of the Managing Committee got elapsed, the proceedings for supersession under Section 13(2) to WA NO. 303 OF 2022 & WA No.305 of 2022 4 remove the Committee would not survive thereafter and that in other words, it would get abated. It will be profitable to refer to paragraph No.25 of the decision of the Full Bench of this Court in M.S.Anil's case (supra) [2021 (4) KHC 119] (FB) p.142-143, which reads as follows:
"25. When applying the aforesaid principles a decision in futile exercise of jurisdiction by Tribunals warrants interference, we have no hesitation to hold that this Court also will not and therefore, shall not exercise jurisdiction in futility and make anyone to do vain and fruitless things and should not do or enact which would be in vain. We, therefore, hold that when a democratically elected Managing Committee of a society is not in existence and thereby not available to be replaced and in its place an administrator or administrative committee is appointed, continuance of proceedings under Section 32 of the KCS Act to supersede the said non-existing committee for the purpose of considering whether the consequence of being a member of a superseded committee could be fastened on every member of the said committee, is nothing but a futile exercise. In the light of the discussions, conclusions and the aforesaid principles we answer the reference as hereunder:-
Matsyafed's case is no more good law to be followed as a precedent. When the Managing Committee of a society is not actually existing the fact that proceedings initiated against it under Section 32 of the KCS Act for supersession, but could not be completed due to the expiry of the prescribed term of the Committee, is no ground to permit continuation of such proceedings for supersession against a non-existent committee even for the limited purpose of conducting it notionally and subject to its outcome, to impose consequential disqualifications under Section 32(1) (e) of the KCS Act. Even in a case where on initiation proceedings for supersession an order of supersession was passed and an administrator or administrative committee was appointed, once the order of supersession is successfully challenged and in the meanwhile the prescribed term of the Managing Committee got elapsed, the proceedings for supersession under Section 32 of the KCS Act to remove the Committee would not survive thereafter and in other words it would get abated. In such circumstances, it will not be permissible to exercise the jurisdiction in futility to direct for continuation of such proceedings. If actions or omissions on the part of an existing committee call for its supersession it should be initiated in accordance with law and an inability to initiate or failure to initiate it, within the tenure of the committee in the prescribed manner is no ground to seek for exercise of jurisdiction in futility. Even if WA NO. 303 OF 2022 & WA No.305 of 2022 5 proceedings were initiated and an order of supersession of the existing committee under section 32 of the KCS Act was passed upon interference with the order of supersession by the Court on any of the legally permissible ground, the fact that such interference was on technical ground is no ground or reason for granting liberty to proceed with such proceedings for supersession if the term of office of that committee had expired in the meanwhile. However, we make it clear that if the report on an inquiry under Section 65 or an inspection under Section 66 was the basis for initiation of proceedings under section 32, interference with the order of supersession by itself would not invalidate such a report. If it is capable of satisfying the ingredients for an action under Section 68 of the KCS Act it could be initiated and, needless to say that, in such eventuality it will have necessary consequences, subject to its outcome."
4. So it can be seen that by the efflux of time, the Managing Committee who faced the showcause notice for Section 32 proceedings is no longer in office since 05.06.2022 and hence there is no necessity for us to adjudicate the case on merits any further. We are further told that the allegations raised in the showcause notice are in the realm of alleged financial irregularities etc and therefore it will be open to the competent authorities concerned to proceed in accordance with Section 68 of the KCS Act relating to surcharge. The said liberty is not in any manner fettered by the closing of these appeals as infructuous. The said liberty to proceed with Section 68 for surcharge proceedings about which, reference is also made in the second paragraph of paragraph 25 is also made by the Full Bench of this Court in M.S.Anil's case (supra) would be available and the same would not be in any manner fettered by the disposal WA NO. 303 OF 2022 & WA No.305 of 2022 6 of this appeal. Consequently, it could also be observed that all contentions available to the appellants in such Section 68 surcharge proceedings are also kept open to be raised by them at the appropriate proceedings in the manner known to law and those aspects should also be duly taken note of, by the competent authority by taking action in terms of Section 68.
Hence, no other directions and orders are required in this case and the writ appeal will stand accordingly disposed of.
sd/-
ALEXANDER THOMAS JUDGE sd/-
SHOBA ANNAMMA EAPEN JUDGE Nsd