Kerala High Court
India Coffee Board Workers ... vs The State Of Kerala
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939
WP(C).No. 6414 of 2017 (B)
---------------------------
PETITIONER :
----------
1.INDIA COFFEE BOARD WORKERS CO-OPERATIVE
SOCIETY LTD NO.4227, THRISSUR
P.B.NO.184, PIN-680001
REPRESENTED BY ITS SECRETARY, ANILKUMAR,
S/O. SREEDHARAN NAIR,AGED 46 YEARS
* ADDL.2ND PETITINER IMPLEADED:
2.ANILKUMAR, S/O.SREEDHARAN NAIR
AGED 46 YEARS, RESIDING AT
KIZHAKKUNKARA, PUTHENVEEDU
NILAMA, OOKKODU P.O.
THIRUVANANTHAPURAM - 695 020
*ADDL.2ND PETITIONER IS IMPLEADED AS PER ORDER
DT. 22/6/2017 IN I.A.NO.8098/2017.
BY ADVS.SRI.S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.V.RAJENDRAN PERUMBAVOOR
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
RESPONDENTS :
-----------
1. THE STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY,
DEPARTMENT OF INDUSTRIES, GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM-695001
2. THE GENERAL MANAGER,
DISTRICT INDUSTRIES CENTRE, THRISSUR-680003
WP(C).No. 6414 of 2017 (B)
-2-
3. THE SENIOR CO-OPERATIVE INSPECTOR,
(HANDLOOM ORGANIZER), THRISSUR-680020
**ADDL.R4 IMPLEADED :
4. THE ADMINISTRATOR, INDIA COFFEE BOARD WORKERS,
CO-OPERATIVE SOCIETY LTD. NO.4227.PB NO.184,
THRISSUR 680001 (SENIOR CO-OPERATIVE
INSPECTOR, HANDLOOM ORGANIZATION, DISTRICT
INDUSTRIES CENTRE, AYYANTHOLE, THRISSUR
**ADDL.R4 IS IMPLEADED AS PER ORDER DT 7/3/2017
IN I.A.NO.3533/2017.
R1 & R3 BY ADV. SRI.K.K.RAVINDRANATH,
R2 ADDL. ADVOCATE GENERAL SRI.RAVINDRANATH
ADDL R4 BY ADV. SRI.P.C.SASIDHARAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22-06-2017 ALONG WITH WP(C)NO.9370/2017,THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
bp
WP(C).No. 6414 of 2017 (B)
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1: TRUE COPY OF FRONT PAGE AND RELEVANT
PAGES OF THE BYE-LAW OF THE PETITIONER
SOCIETY
EXHIBIT P2: TRUE COPY OF NOTICE ISSUED BY THE
PETITIONER TO C.K.RAJESH ON 28.3.2016
EXHIBIT P3: TRUE COPY OF NOTICE NO.B2/1344/16 DATED
19.10.2016 ISSUED BY 2ND RESPONDENT
EXHIBIT P4: TRUE COPY OF NOTICE NO.B2-6711/16 DATED
22.2.2017 ISSUED BY 2ND RESPONDENT
EXHIBIT P5: TRUE COPY OF NOTICE NO.B2-6711/16 DATED
2.2.2017 ISSUED BY 2ND RESPONDENT
EXHIBIT P6: TRUE COPY OF REPORT DATED 23.1.2017 OF
THE 3RD RESPONDENT
EXHIBIT P7: TRUE COPY RELEVANT PORTION OF THE AUDITED
REPORT OF THE SOCIETY FOR THE PERIOD
2015-16
EXHIBIT P8: TRUE COPY OF F.I.R.IN CRIME NO.668/2014
OF THRISSUR WEST POLICE STATION DATED
28.3.2014
EXHIBIT P9: TRUE COPY LETTER DT 21/2/2014 FILED BY
THE PETITIONER BEFORE THE INDUSTRIES
MINISTER.
EXHIBIT P10: TRUE COPY OF REPORT DT 26/3/2014
SUBMITTED BY THE R3.
EXHIBIT P11: TRUE COPY OF NOTE DT 31/3/2014.
EXHIBIT P12: TRUE COPY OF PETITION DT 28/3/2014
SUBMITTED BEFORE THE R2.
EXHIBIT P13: TRUE COPY PETITION DT 22/4/2014
SUBMITTED BEFORE THE R2.
WP(C).No. 6414 of 2017 (B)
--------------------------
EXHIBIT P14: TRUE COPY OF BEARING NO.EDI/4751/14 DT
2/5/2014.
EXHIBIT P15: TRUE COPY OF LETTER DT 11/12/2014.
EXHIBIT P16: TRUE COPY OF LETTER DT 26/2/2015.
EXHIBIT P17: TRUE COPY OF PAGE NO.114(ENTRY4007) IN
THE REGISTER.
EXHIBIT P17(a): TRUE COPY OF PAGE NO.228 (ENTRIES
10143 AND 10144) IN THE REGISTER.
EXHIBIT P18: TRUE COPY OF CORRESPONDENT IN PAGE NO.29
WITH SERIAL NO. 12593.
EXHIBIT P19: TRUE COPY OF PAGE NO. 33 TO 40 LIN THE
REGISTER.
EXHIBIT P20: TRUE COPY OF LETTER DT 25/2/2017 AND
SERVED ON 01/3/2017.
EXHIBIT P21: TRUE COPY OF LETTER DT 01/3/2017 TO THE
MANAGER SBT.
EXHIBIT P22: TRUE COPY OF A LIST OF BRANCHES OF THE
COFFEE HOUSE/CANTEENS RUN BY THE SOCIETY
IN GOVERNMENT INSTITUTIONS AS WELL AS
QUASI GOVERNMENT INSTITUTIONS.
EXHIBIT P23: TRUE COPY OF LIST SHOWING THE DETAILS OF
THE RENTED BUILDINGS OF THE SOCIETY
WHERE COFFEE HOUSES ARE FUNCTIONING
RESPONDENT(S)' EXHIBITS & ANNEXURES :
-----------------------------------
ANNEXURE R2(a): COPY OF THE NOTICE OF ENQUIRY DT
19/12/2016 OF THE GENERAL MANAGER,
DISTRICT INDUSTRIES CENTRE, THRISSUR.
ANNEXURE R2(b): COPY OF THE ACCOUNT FREEZING ORDER
DT 25/2/2017 OF THE ADMINISTRATOR TO
THE BRANCH MANAGER, AXIS BANK, CITY
CENTRE BRANCH, THRISSUR.
WP(C).No. 6414 of 2017 (B)
--------------------------
ANNEXURE R2(c): COPY OF THE ACCOUNT FREEZING ODER DT
25/2/2017 OF THE ADMINISTRATOR TO THE
SBT, PARAMEKKAVU BRANCH, THRISSUR.
ANNEXURE R2(d): COPY OF THE ACCOUNT FREEZING ORDER DT
25/2/2017 OF THE ADMINISTRATOR TO THE
DISTRICT CO-OPERATIVE BANK, THRISSUR.
ANNEXURE R2(e): COPY OF THE ACCOUNT FREEZING ORDER DT
25/2/2017 OF THE ADMINISTRATOR TO THE
DHANALAKSHMI BANK, MAIN RANCH,
THRISSUR.
ANNEXURE R2(f): COPY OF THE LETTER WITHDRAWING THE
FREEZING ORDER DT 1/03/2017.
EXT.R4(a): COPY OF THE PROCEEDINGS ENTERED IN
THE MINUTE BOOK OF THE SOCIETY N
ASSUMPTION OF CHARGE.
EXT.R4(b): COPY OF THE AFFIDAVIT.
//TRUE COPY//
P.A. TO JUDGE
bp
C R
DEVAN RAMACHANDRAN, J.
- - - - - - - - - - - - - - - -
W.P.(C)Nos.6414 & 9370 of 2017
- - - - - - - - - - - - - - - -
Dated this the 22nd day of June, 2017
JUDGMENT
So much as already been written and spoken by this Court in the past in the area relating to supersession of societies under the prescription of Section 32 of the Co-operative Societies Act that one would have thought that there is nothing left to be unsaid. That an issue would present itself in this area as res nova is a virtual surprise and this is one such case appearing to provide virgin issues, apparently never having engaged the attention of this Court in the past.
2. There are two writ petitions that I am considering together in this judgment. Both of them pitch the same issues, which are hypostysed on a challenge to the order issued by the General Manager, District Industries Centre, Thrissur, superseding the elected management of the Indian Coffee Board Workers' Co-operative Society No.4227, Thrissur, (hereinafter referred to as 'the Society', for the sake of brevity). The first W.P.(C)Nos.6414 & 9370 of 2017 2 among them namely, W.P.(C)No.6414/2017 has been ostensibly filed by the Society itself and the second of them namely, W.P. (C)No.9370/2017 has been filed by the members of the elected Managing Committee of the Society. Since both these writ petitions involve similar issues, have mounted challenge to the same order and since resolution of the disputes in both these would remain dependant on each other, I deem it appropriate and apposite to consider them together and dispose them of jointly. However for the sake of convenience I would treat W.P. (C)No.9370/2017 as the lead case and all references in this judgment to parties and documents would be, unless otherwise specified, as per the rank and status available in the said writ petition.
3. I have heard the learned Additional Advocate General, appearing for the State of Kerala and the officers of the District Industries Centre, who are made respondents herein; Sri. P.C. Sasidharan, appearing for the Administrator appointed for the Society; Sri.George Poonthottam, and Sri.V.Rajendran (Perumbavoor), learned counsel appearing for the petitioners in W.P.(C)Nos.6414 & 9370 of 2017 3 the two writ petitions.
4. At the time when these writ petitions were taken up for hearing, a preliminary objection was raised by Sri.P.C.Sasidharan, learned counsel for the Administrator that W.P.(C)No.6414/2017 cannot be allowed to be prosecuted further, since the Administrator of the Society, who is now in charge of its management, does not intend to do so. He, therefore, prays that this writ petition be dismissed. I will deal with this contention slightly lower in this judgment, when I consider the various other issues, which, I am in any case obligated to consider, in view of the fact that there is no such technical objection against the maintainability of W.P.(C) No.9370/2017. I say this because when I deal with W.P.(C) No.9370/2017, I will inevitably have to deal with some of the issues that have been raised in W.P.(C) No.6414/2017 since they are concatenated, in its nature, to each other.
5. First an apercus of the most essential facts:
6. The Society in question was initially registered as a Co-operative society under the provisions of the Travancore W.P.(C)Nos.6414 & 9370 of 2017 4 Cochin Literary Scientific Charitable Societies Registration Act, 1955. When the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as 'the Act') came into force, the Society became statutorily reckoned as a deemed Co-operative society under its provisions and, therefore, subject to the control of all the requirements and mandate of the said Act. The parties on either side are ad idem that the Society in question is an Industrial Co-operative society, which is under the administrative control of the Industries and Commerce Department of the Government of Kerala.
7. The issues and controversy presented in these writ petitions arose because the General Manager of the District Industries Centre, Thrissur, asserting himself to be the Registrar of Co-operative Societies in relation to the Society, issued Exts.P4, P5 and P6 orders, exercising jurisdiction vested with the Registrar under Section 32 of the Act. Ext.P4 is the report of an enquiry stated to have been caused to be done by the General Manager, District Industries Centre, holding himself to be the Registrar. Ext.P5 is a notice that he had issued to the Society W.P.(C)Nos.6414 & 9370 of 2017 5 and Ext.P6 is the order under which the management of the Society was superseded on account of the alleged irregularities and transgressions noticed and recorded by the enquiry officer in Ext.P4 enquiry report. The petitioners have challenged Ext.P6 order issued by the General Manager, District Industries Centre has been illegal, unlawful and wholly be without jurisdiction.
8. The issues in this case can broadly be divided into those which are in the realm of facts and which are in the realm of law. When I began the hearing of this case, I made it very clear to the parties on either side that this Court, while exercising jurisdiction under the Article 226 of the Constitution of India, would not be justified and is to a large extent barricaded from entering into evaluation of facts especially which are disputed in nature, taking into account the well settled and well established constraints of jurisdiction in doing so. I, therefore, reiterated that I would not be in a position, while exercising writ jurisdiction, to consider the validity or the veracity of the allegations and recriminations allegedly found proved against the elected managing committee of the society in Ext.P4 enquiry W.P.(C)Nos.6414 & 9370 of 2017 6 report. Therefore, all that this Court can do in such cases is to verify whether the mandatory procedure has been followed and whether law has been complied with by the concerned authorities while issuing the orders of supersession.
9. An enquiry into these issues ineluctably will require me to first look into the statutory provisions in law. Supersession of a society is provided under the Act in Section 32 thereof. Since the entire edifice of the petitioners' contentions revolve around and hinge on the manner in which Section 32 is worded and to be interpreted herein, it will be idoneous to read the said Section in full and for such purpose I deem it appropriate to extract it as under.
"32. Supersession of Committee.- (1) If the Registrar, after an inquiry by himself or through his subordinates or on a report of the financing bank, or the Vigilance and Anticorruption Bureau of the Government or the Vigilance Officer or otherwise, is satisfied that the committee of any society,--
(a) persistently makes default or is negligent in the performance of the duties imposed on it by this Act or the rules or bye-laws or does anything which is prejudicial to the interests of the society; or W.P.(C)Nos.6414 & 9370 of 2017 7
(b) wilfully disobeys or fails to comply with any lawful order or direction issued under this Act or the rules;
or
(c) makes any payment contrary to this Act or the rules or the bye-laws or causes any loss or damage to the assets of the society, by breach of trust of wilfull negligence; or
(d) misappropriates or destroys or tampers with the records or causes the destruction of records to cover up any misconduct or malpractice, he may, after giving the committee an opportunity to state its objections, if any, by order in writing, remove the committee and appoint in its place one administrator or an administrative committee consisting of not more than three individuals, one among them as convener, who need not be members of the society, to manage the affairs of the society for a period not exceeding six months.
[Provided that in the case of Co-operative Society, carrying on the business of banking, the provisions of the Banking Regulation Act, 1949 (Central Act 10 of 1949) shall also apply;
Provided further that in the case of a Co-operative Society, carrying on the business of Banking, appointment of Administrator/administrative committee shall not exceed one year in the aggregate:
Provided also that the Board of Co-operative Society shall not be superseded or kept under suspension where there is no Government share holding or loan or financial W.P.(C)Nos.6414 & 9370 of 2017 8 assistance or any guarantee by the Government or any Board or Institutions constituted by the Government] Explanation:- A notice and an order given as per this clause to the President, in his absence to the Vice President or any committee members who is holding charge of President or Vice President or to the Chief Executive of a society shall be treated as an order given to the committee of the society.
(e) Every member of the committee superseded under this section shall from the date of order of such supersession stand disqualified to contest in the election to or to be nominated to the committee of any Society or to be appointed as an administrator in any society for two consecutive terms] (2) The Registrar shall consult the financing bank and Circle Co-operative Union or State Co-operative Union as the case may be before passing an order under sub-sec. (1).
(3) Notwithstanding anything contained in sub-
section (1) or sub-section (2) it shall not be necessary to give an opportunity to the committee to state its objections and to consult the Unions and financing banks, in cases where the Registrar is of the opinion that it is not reasonably practicable to do so, subject however to the condition that in such cases the period of supersession shall generally be for six months and in case a new committee, cannot be constituted or enter upon office in accordance with the bye-laws of the society within the period of W.P.(C)Nos.6414 & 9370 of 2017 9 supersession the period may be extended for a further period not exceeding six months-
(a) in the case of a Co-operative society only after consulting the Circle Co-operative Union concerned; and
(b) in the case of an Apex Society or a Central Society only after consulting the State Co-
operative Union.
(4) The committee or administrator or administrators so appointed shall, subject to the control of the Registrar and to such instructions as he may from time to time give, [have power to exercise all or any of the powers and functions] of the committee or of any officer of the society and take such action as may be required in the interests of the society.
(5) The committee or administrator or administrators shall, before the expiry of its or his or their term of office, arrange for the constitution of a new committee in accordance with the bye-laws of the society.
(6) Every order made by the Registrar under sub- section (1) shall be communicated to the Circle Co-operative Union."
10. The reading of Section 32 makes it indisputable that action for supersession of a committee can be initiated and culminated only by the Registrar. Therefore, it becomes incumbent upon this Court to ascertain who the Registrar is and W.P.(C)Nos.6414 & 9370 of 2017 10 who could claim jurisdiction to issue Ext.P6. This investigation becomes relevant because it is the specific case of the petitioners that the General Manager, District Industries Centre is not the Registrar of the Society while the learned Additional Advocate General maintains and asserts that the said officer is, by a statutory notification, the Registrar of the said society.
11. The provision relating to the appointment of the Registrar of Societies is couched in Section 3 of the Act, which reads as under.
"3. Registrar:-(1) The Government may appoint a person to be the Registrar of Co-operative Societies for the State. (2) The Government may by general or special order confer on any person all or any of the powers of the Registrar under this Act."
Since the provisions, relating to the appointment of Registrar, is absolutely luculent that a person shall be so appointed only under a general or special order, to be issued by the Government from time to time, it becomes necessary to verify the notifications, if any, under which the Registrars are appointed for the purpose of industrial Co-operative Societies like the Society herein. W.P.(C)Nos.6414 & 9370 of 2017 11
12. The learned Additional Advocate General brings my attention to the notifications in this regard, which have been issued by the Government as early as in the year 1969. The order referred to by him is Notification No.255/69/AD dated 28.06.1969 through which the Government, exercising its powers under Section 3(2) of the Act and in supersession of all previous notifications in this regard, specified the authorities who will have the powers of Registrar in respect of such societies. The schedule to the said notification specifies the authority and the powers granted to the various offers under Section 3(2), so as to enable them to act as Registrar of the respective societies. The schedule is extracted as under, since it is necessary to read it in full to understand the true import of the notification:
THE SCHEDULE Column (1) Column (2) Director of Industries All powers of the Registrar in and Commerce and respect of all Industrial and other 1 additional Director of Co-operative Societies including Co-
Industries and op. Sugar Mills under the control of commerce the Industries Department.
W.P.(C)Nos.6414 & 9370 of 2017 12
Column (1) Column (2) All powers of a Registrar except those under Section 69 and Section Regional Joint 87 of the Act in respect of all 2 Directors of IndustriesIndustries and other Co-operative and Commerce Societies other than Coir Co-op.
Societies under the control of the Industries Department and falling within their respective jurisdictions All powers of a Registrar except those under Sections 14, 15, 32, 71, 72, 73, 74 and 87 of the Act in 3 District Industries respect of all Industrial and other Officers Co-operative Societies under the control of the Industries Department and falling within their respective jurisdictions All powers of a Registrar in respect 4 [Director of Coir of Coir Co-operative Societies under Development] the control of the Industries Department The Additional All the powers of the Registrar of Industries under the said Act in [5 Director and of Industries & respect of all and other Co-op.
Commerce (Technical) Societies under the control of Industries Department]
13. The notification and its schedule, as extracted above, does not give any room for doubt that the Director of Industries and Commerce and Additional Director of Industries and Commerce of the Government of Kerala have been vested with all the powers of the Registrar in respect of all industrial and other Co-operative societies under the control of the Industries W.P.(C)Nos.6414 & 9370 of 2017 13 Department. The Regional Joint Director of Industries and Commerce have also been invested with the powers of the Registrar of such societies falling within their respective jurisdictions. Similarly, the District Industries Officer, the Director of Coir Development, and the Additional Director of Industries and Commerce have also been shown to be authorities vested with such powers of the Registrar, as is specified in the schedule and the notification. Even though originally the notification, when it related to the Regional Joint Directors of the Industries and Commerce, specified that they will have all the powers of a Registrar, except under Sections 69 and 87 of the Act, this restriction was subsequently taken away in the year 1979 with the Government of Kerala issuing SRO No.857/79, which reads as under:
"SRO No.857/79.- In exercise of the powers conferred by sub-section (2) of S.3 of the Kerala Co-operative Societies Act, 1969(21 of 1969), the Government of Kerala hereby confer on the General Managers of District Industries Centers, all powers of the Registrar under the said Act in respect of all industrial and other Co-operative Societies other than Coir Co-operative Societies under the control of W.P.(C)Nos.6414 & 9370 of 2017 14 the Industries Department and falling within their respective jurisdictions."
14. The position, therefore, today is capable of no ambiguity because as far as the societies which are spread beyond the territorial jurisdiction of a Regional Joint Director or a District Industries Officer, the Director of Industries would have jurisdiction as a Registrar, he having control of all the societies in the whole of Kerala. However, in the case of a society, which is situated wholly within the territorial jurisdictional control of a particular Regional Joint Director or of a particular District Industries Officer or such other, such officer would obtain all the powers of a Registrar with respect to that society. This becomes irrefragable because the schedule extracted above show, in the case of officers shown as item 2 and 3 thereunder, that such officers will have control only over societies falling "within their respective jurisdictions". But for this one delimitation in the power of the Regional Joint Director, there is no difference in the powers between such officers and the Director of Industries. It is, therefore, to be inferred that the framers of the schedule was clear in their mind that with respect to a society, which is W.P.(C)Nos.6414 & 9370 of 2017 15 confined to the territorial jurisdiction of a particular Regional Joint Director, that authority alone would be the Registrar of such society. If the area of such society spills over to the area of other officers, in other districts, then none of such officers would continue to hold jurisdiction of the society as a Registrar and such powers will automatically have to be operated and controlled only by the Director of Industries and Commerce or by the Additional Director of Industries and Commerce. This being the view that one could gather from the notification, I am now guided to see how these provisions would apply in the case of the Society.
15. The Society was registered, as I have already stated above, under the Travancore Cochin Literary Scientific Charitable Societies Registration Act, 1955, as early as in the year 1958, the Society having been shown to be a co-operative society, with its registered address at Thrissur Town, Thrissur P.O. This is evident from the certificate of registration of the Society produced by the State along with their memo dated 21.6.2017 and marked therein as Annexure-I. As per this certificate and the initial bye- W.P.(C)Nos.6414 & 9370 of 2017 16 laws appended to it, it becomes obvious that the area of operation of the Society was only within the Thrissur district. Of course, this was prior to the regime under the Act. When the Act came into being, the Society became a deemed society under the provisions of that Act. Obviously therefore, the question as to who is a Registrar and who are the controlling authorities have to be then answered by the provisions contained in the Act.
16. The notifications that I have referred to above show that the Registrar concerned for these societies would be as per the prescriptions contained therein. It is on the basis of the notification dated 28.06.1969 (supra) that the petitioner say that the General Manager, District Industries Centre does not obtain the jurisdiction over the Society since, according to them, the Society now has an area of operation in eight districts and is not merely confined to Thrissur district. To show this, Sri.George Poonthottam, learned counsel appearing for the petitioner, points out Ext.P1 bye-law, which was approved by the competent authority in the year 1986, under which the society's area of W.P.(C)Nos.6414 & 9370 of 2017 17 operation has been permitted to be expanded into Ernakulam, Alappuzha, Kollam, Kottayam, Idukki Thiruvananthapuram and Pathanamthitta districts in addition to Thrissur. As per the notification above, Sri.Goerge Poonthottam says, the General Manager, District Industries Centre would get no jurisdiction at all because he is not the Registrar, the society not being confined in its area of operation, to his jurisdiction; but that the Director of Industries or the Additional Director of Industries and Commerce only can exercise the powers of a Registrar, the Society being spread in its operations to eight districts in the State. The learned Additional Advocate General refused these contentions by saying that the General Manager, District Industries Cente has been now equated, under the provisions of the special Rules relating to their services, to that of the Regional Joint Director of the Industries and Commerce. He asserts that once the General Manager, District Industries Centre is equivalent to the post of a Regional Joint Director, such officer would be competent to function as the Registrar with respect to the society. However, glaringly, the learned Advocate General does not seem to be W.P.(C)Nos.6414 & 9370 of 2017 18 clear on the issue as to whether, even assuming that the General Manager, District Industries Centre is the Regional Joint Director for all intents and purposes, how that officer would obtain jurisdiction when the area of operation of the Co-operative Society is not confined to the Thrissur District alone.
17. The manner in which this is answered by the learned Advocate General and by Sri.P.C.Sasidharan borders on brinkmanship. They say that the area of operation of the Society has not been extended. According to them, the area of operation still continues to be confined to Thrissur and that as per Ext.P1 amendment, all that has been permitted is to allow the Society to have outlets and service units outside Thrissur district in furtherance of their business. I am unable to countenance this submission, because if the area of operation of the society is confined to Thrissur, it is ineffable as to how they are now allowed to operate outlets outside Thrissur, since as has been admitted by the Additional Advocate General, specific or special orders have not been issued for that purpose by the Government at any time. Nothing has been placed on record, even after this W.P.(C)Nos.6414 & 9370 of 2017 19 case was twice adjourned for such purpose, to show that the Government has issued any specific orders allowing the society to open outlets outside Thrissur. In the absence of any such orders and in the absence of any material to show otherwise, one can only hold that the area of operation as per Ext.P1 has been sanctioned to be outside Thrissur also and spread over to the eight districts mentioned therein. I say this specifically also, because even in the first certificate of registration, the word used is 'dIUcJ_' relating to the area of operation. It is the same word, 'dIUcJ_', which has been used in Ext.P1 also relating to the eight districts. There is no semantic difference in these two words shown in Malayalam and as long as they mean the same, it can only be understood that what is stated in the original registration would be with the same intent with which this word is used in Ext.P1 also. I, therefore, have no doubt in my mind that as per Ext.P1, the area of operation of the Society stands extended to the eight districts.
18. When thus all the factors, as above, ineluctably lead to the irresistible conclusion that the area of operation of the W.P.(C)Nos.6414 & 9370 of 2017 20 Society has been extended beyond Thrissur, the learned Advocate General makes a further submission, which, according to me, is completely inscrutable, that Ext.P1, which is the amendment of bye-law extending its area of operation, has been signed and approved by the Deputy Registrar, District Industries Centre, Thrissur and hence incompetent in law. According to him, if the contentions of the petitioner are accepted, then the entire amendment itself will have to fail because such amendments have been approved by the Deputy Registrar, District Industries Centre, Thrissur, as if he is the Registrar of the society. The impact of the submission is that if the petitioner's contentions are accepted, then the very basis of the society's area of operation would fall. This is undoubtedly an extremely ingenuous argument, which is supported by Sri.P.C.Sasidharan also rather strongly. I, therefore, examined this submission quite in detail.
19. It is true that the amendment, as shown in Ext.P1, has been approved by the Deputy Registrar, District Industries Centre, Thrissur and not by the Director of Industries, W.P.(C)Nos.6414 & 9370 of 2017 21 Thiruvananthapuram. If, as is my view in this judgment, which I will presently state, the Director of Industries is the Registrar in relation to the Society, then the question arises under what power the Deputy Registrar, District Industries Centre had approved the amendment to the bye-laws as shown in Ext.P1. This is not an issue that I can speak with full conclusiveness in this writ petition for various reasons. For the first, I am not aware how the officer, who has signed Ext.P1, was allowed to subscribe his signature to it. I do not know whether he was authorised on that behalf specifically and I do not know whether there was any Government order empowering him to act as a Registrar in his capacity as a Deputy Registrar in approving such amendments. I say this, because the designation shown in Ext.P1 is not "General Manager of District Industries Centre", but "Deputy Registrar, District Industries Centre, Thrissur". This is not a post that is borne in the cadre of the Industries Department. It obviously belongs to the cadre of the Co- operative Department. If that be so, the person who has shown himself to be the Deputy Registrar was presumably exercising the W.P.(C)Nos.6414 & 9370 of 2017 22 powers of a Registrar in his capacity as the Deputy Registrar under the provisions of the relevant Government notification in this regard of the year 1969. The notification I am referring to is SRO No.198/1969, by which the Government of Kerala expressly conferred the powers of the Registrar therein on the Additional Joint and Deputy Registrar respectively, subject to certain limitations contained therein. I am not given to understand, even by the respondents, how Ext.P1 was approved by the authority who was signed it, but in the absence of challenge to the same I have no other option to infer, at least prima facie, that the endorsement and approval of the amendment in Ext.P1 was made by the authority under valid powers. As long as Ext.P1 is not in challenge before this Court, it would not be necessary or competent for this Court to go into it in great detail.
20. Once I am thus impelled to conclude that the area of operation of the Society now stands extended well beyond the territorial limits of the district of Thrissur, the question that would immediately arise is whether the General Manager, District Industries Centre, who, for all purposes I will accept, is the W.P.(C)Nos.6414 & 9370 of 2017 23 Regional Director of Industries, would obtain the powers of Registrar to issue Exts. P4, P5 and P6 proceedings. The notifications which are extracted above in paragraphs 12 and 13 of this judgment is specific that the Regional Joint Directors would obtain the powers of a Registrar only in respect of societies under the control of the Industries Department and falling within their respective jurisdiction. The words 'falling within their respective jurisdiction' is extremely climacteric in the resolution of these disputes because, but for those five words the powers of the Director of Industries and Regional Joint Directors are identical in nature. Perceptibly, what was intended by the notification is to confine the powers of the Regional Joint Director within the area of their jurisdiction and to provide authority to them only over such societies which are wholly situated within their respective territorial jurisdictions. Since I have already found that the Society in question has now its area of operation, on account of Ext.P1, spread out even beyond the territorial limits of the district of Thrissur, I have little doubt in my mind that the Registrar of this Society can only be reckoned to be the W.P.(C)Nos.6414 & 9370 of 2017 24 Director of Industries and not the Regional Director, as has been asserted by the learned Additional Advocate General and Mr.P.C.Sasidharan.
21. Even before I could move into the next issue, the learned Additional Advocate General raises a pointed assertion that that the General Manager, District Industries Centre, Thrissur has always been reckoned and accepted to be the Registrar of the society by everybody, including the petitioners until now. He avouches that the election to the Society was conducted by the General Manager, District Industries Centre, Thrissur as the Registrar of the society and, therefore, that the very edifice on which the petitioners are now standing on would fall, if the said officer is now declared not to be the Registrar. This is an issue which is not directly arising in these writ petitions. But I am certain that whatever be the pleadings of the parties, the position of the Registrar is not something that can be inferred on facts but has to be specifically determined in law. If the notification says that the Director of Industries is the Registrar, no amount of acquiescence or condonation of action W.P.(C)Nos.6414 & 9370 of 2017 25 previously made by an inferior officer would invest him with the powers of a Registrar and would not permit him to act as a Registrar; atleast it would not be proper for this Court to permit him to continue so, once the observations as above has been recorded.
22. Once I conclude as above, it is obvious that Ext.P6 cannot stand in the scrutiny of law. This is because the power of supersession under Section 32 is invested only with the Registrar and not with any other authority. The specific manner in which the said section is worded gives no cause for confusion at all. It is only after an enquiry by the Registrar on its own or through a subordinate authority and thereafter, on the Registrar arriving at a satisfaction that factors exist for such supersession, that he can make an order under Section 32 for such purpose. My conclusion that the Regional Joint Director/the General Manager, District Industries Centre is not the Registrar in this case would virtually seal the fate of Ext.P6 order and I would have no other option but to set aside the same.
23. Normally in such circumstances, I would not require to W.P.(C)Nos.6414 & 9370 of 2017 26 go any further. However, since specific contentions have been raised by the parties in this case relating to certain other issues, I deem it appropriate to consider them also to test the validity of Ext.P6 on the touchstone of the other statutory criterion.
24. Section 32 provides that before the Registrar passes an order, a notice shall be issued to the society. Ext.P5 is stated to be the notice that was issued to the Society. If that notice had been so issued prior to issuance of Ext.P6 order of supersession, then there would have been no procedural infraction under the mandate of Section 32. However, the problem in this case is that the petitioners specifically contend that Ext.P4 enquiry report, Ext.P5 notice and Ext.P6 order of supersession was served on them simultaneously and together. They, therefore, assert that there was no notice issued to them before Ext.P6 order of supersession was served and implemented against them. Noticing this specific submission, I had orally asked the learned Additional Advocate General to make available and to place on record documents or materials to show that Ext.P5 notice had been issued to the Society prior to the passing of Ext.P6 order of W.P.(C)Nos.6414 & 9370 of 2017 27 supersession. Even though some time was granted for this purpose, the learned Advocate General today concedes before me that there is no material in possession of the respondents to show this, even while maintaining that it was served on them prior to Ext.P6. I am afraid that I cannot, while deciding matters of such import, merely rely upon such statements made at the Bar by the learned Additional Advocate General. Lest I be mistaken, the statements of the stature of Additional Advocate General is certainly deserving of acceptance normally and I would have done so without any corroboration. However, when it relates to matters under Section 32 of the Act, it is incumbent upon me to verify and atleast convince myself that such a notice was issued to the Society before proceedings for supersession were initiated and culminated. This not having been done, I am certain that on this account also Ext.P6 would suffer infirmity.
25. Sri.George Poonthottam and Sri.V.Rajendran, learned counsel appearing for the petitioners, made an additional submission, which is analogous to the issue of notice. They say that before an enquiry could have been conducted and completed W.P.(C)Nos.6414 & 9370 of 2017 28 against the society, the Registrar was under a statutory duty to issue notice to the Society. For this purpose they refer to Section 65 of the Act, which relates to inquiry by the Registrar. There is no doubt that when an enquiry is conducted under Section 65 of the Act, the provisions of Rule 66 of the Co-operative Societies Rules will be called into play, which warrants the issuance of a notice. A fortiorari the learned Additional Advocate General points out that in Section 32, the Enquiry mentioned is not and cannot be construed to be an enquiry under Sections 63, 65 and 66 of the Act. According to him, what is required under Section 32 is only an enquiry by the Registrar either on his own or through a subordinate to find out if such criterion and factors are present against the society which would warrant, subject to his satisfaction, an order of supersession under the said section.
26. I find sufficient force in the submissions of the learned Additional Advocate General on this count. Section 32 does not say, contrary to the provisions of Section 68 of the Act, that a notice should be issued imperatively before an inquiry is caused to be done by the Registrar akin to the inquiry under Sections 63, W.P.(C)Nos.6414 & 9370 of 2017 29 65 or 66 of the Act. This position of law is completely beyond doubt now, especially in view of the judgment of this Court in State of Kerala v. Sudarsanan [1997(2)KLT 522]. In such view of the matter, the submissions of Sri. George Poonthottam and Sri. V. Rajendran on this issue cannot find sustenance in law.
27. The last of the issues, which I think is of substantial relevance in this case, while Ext.P6 is subjected to judicial scrutiny, relates to the third proviso to Section 32, which prohibits action for supersession of a society by the Registrar, when there is no Government shareholding or loan or financial assistance or any guarantee by the Government or any board of institutions constituted by the Government in the society. In order to show that the Government had granted financial assistance to the Society, an additional counter affidavit has been placed on record on behalf of State of Kerala dated 11.04.2017, asserting that the State of Kerala has been granting several types of financial assistance to the society. The General Manager, District Industries Centre, Thrissur has, in the said counter affidavit stated as under:
W.P.(C)Nos.6414 & 9370 of 2017 30
"I, K.S.Pradeep Kumar, aged 50 years, S/o.Subramanian, residing at Thrissur, having come down to Ernakulam, do hereby solemnly affirm and state as follows:
1. I am the General Manager, District Industries Centre, Thrissur and the 1st respondent in the above writ petition. I know the facts of the case as disclosed from the relevant files.
2. It is submitted that to the counter affidavit filed by the 1st respondent in the above writ petition, the petitioner has filed a reply affidavit on 30.03.2017. Some of the averments contained in the said reply affidavit, read along with certain averments in the writ petition have made it necessary for the 1st respondent to bring some crucial facts regarding the matter involved, to the notice of this Honourable Court and that has necessitated the filing of this additional counter affidavit by the 1st respondent. In the circumstance, it is prayed that this Honourable Court may be pleased to accept this additional counter affidavit, on to the file of the writ petition.
3. It is submitted that substantial concessions having the character of considerable monitory assistance has been and is also being given to the 2nd respondent, Co-
operative Society by the State Government and its institutions, as contemplated under the 3rd proviso to Section 32(1) of the Kerala Co-operative Societies Act. To mention a few.
(i) Only a nominal rate of rent (now Rs.3,500/- per month) is being charged for the building in which the W.P.(C)Nos.6414 & 9370 of 2017 31 Indian Coffee House Branch at Legislators' Hostel, Thiruvananthapuram is functioning. Similarly, all facilities such as building, electricity, water supply, furniture, freezer, kitchen amenities etc, in the Indian Coffee House branch, which has been working since 1998 in the Legislative Complex, Thiruvananthapuram are provided by the Kerala Legislative Secretariat, free of cost, considering the fact that it is a registered co-operative undertaking. True copy of the Certificate dated 04.04.2017, issued by the Secretary, Kerala Legislative Assembly, evidencing the above, is herewith produced and marked as Ext. R1(1).
Similarly, proceedings dated 24.10.2016 and
02.02.2016 issued by the Executive Engineer,
evidencing the supply of Deep Freezer worth
Rs.35,685/- and Wet Grinder worth Rs.25,450/-, respectively for the Indian Coffee House at Assembly Block in Kerala Legislative Complex, are herewith produced and marked as Ext.R1(m) and Ext.R1(n) respectively. The Indian Coffee House Branch at the Government Secretariat is also enjoying highly concessional rates, for the facilities provided.
(ii) Very substantial concessions are granted to the Indian Coffee House branches functioning in the Medical College, Thrissur and Medical College, Kottayam in respect of the building rent, water and electricity charges etc payable by them to the Government. In this connection it is pertinent to note W.P.(C)Nos.6414 & 9370 of 2017 32 that the monthly sales turn-over of the Coffee House at the Medical College Branch, Thrissur is about 60 lakhs, whereas, the monthly rent levied for the same is only Rs.35,000/-, which is far too low compared to the rate of rent prevalent in the area, where, it is understood, that the rent fetched in auction even for a small cafeteria is to the tune of 1 to 1.5 Crores of rupees. Likewise, the concessional rent fixed for the Coffee House branch at Medical College, Kottayam where the monthly sales turn-over is between Rs.20 to 25 lakhs has been a very nominal amount of Rs.4,500/-, recently increased to Rs.14,900/-, which, going by the prevalent rate of rent in the area is very meager.
(iii) It is submitted that as in the cases mentioned hereinbefore, the Coffee House branches in the General Hospital, Thiruvananthapuram and the Hospital for Women and Children, Thycaud, Thiruvananthapuram are also enjoying concessional rates in respect of rent and other amenities granted by the State. The benefit of such concessional rates are granted to the Coffee House branch, functioning in Ernakulam Collectorate etc also.
(iv) During the period 1996-98, very huge amounts were due as defaulted outstanding by the 2nd respondent-Coffee House to the Government towards turn-over tax out of which Government have exempted them from paying penal interest and also W.P.(C)Nos.6414 & 9370 of 2017 33 granted 60 instalments for remitting the remainder. The amount thus given remission of, by the Government can be seen from, and is borne out by the records of the 2nd respondent-Society.
(v) Concessional rates in respect of rent and other amenities are also granted to the Coffee House Branches functioning in Angamaly and Thampanoor Bus Stands under the KSRTC, for the last several years. In Alappuzha Bus Stand building facility has been granted to the Coffee House for running their branch whereas, in Thiruvalla Bus Stand consent letter for such facility has already been granted. These branches of the Indian Coffee House are also beneficiaries of such concessional rates, as above mentioned.
(vi) Government land measuring 4.20 cents, comprised in Sy.No.817 of Ernakulam Village was leased out to the 2nd respondent Indian Coffee House, as per G.O.(MS)No.357/73/RD dated 08.06.1973. As per G.O.(MS)No.99/06/RD dated 30.03.2006, Government ordered to renew the lease after realising 25% of the arrears of lease rent amounting to Rs.13,13,102/-, for the period from 1995 to 2004 (the actual arrears of lease rent falling due for the period from 1995 to 2004 was assessed at Rs.52,52,408/-). A true copy of the said Government Order is herewith produced and marked as Ext.R1(o). Even though, such remission granted is based on general order W.P.(C)Nos.6414 & 9370 of 2017 34 issued by the Government in G.O.(P)No.126/2004/RD dated 14.05.2004, for that reason, it does not cease to have the character of an assistance by the State to the Co-operative Society, as contemplated in the 3rd proviso of Section 32(1) of the Act. In fact, such assistance also can be taken into consideration for the purpose of the proviso, is evident from the judgment of this Honourable Court in the decision in W.P.(C) No.2719/2017 where this Honourable Court has held that the relief granted by the State to the Members of the Scheduled Caste and Scheduled Tribe Community under a scheme evolved by providing financial assistance to the Co-operative Societies, who have given loans to the members of the Scheduled Caste and Scheduled Tribe communities, to the extent of the loan outstanding in the loan account with such co- operative societies. In the case on hand, though the remission granted in respect of arrears of lease rent is by virtue of a general order, the fact that by such remission, the co-operative society is absolved of its liability, gives it the character of financial assistance given by the State to the Co-operative Society.
(vii) For the year 1993-94, the respondent-Co- operative Society was liable to pay an amount of Rs.2,90,690/- towards the sales tax liability to the Government. However, under the Amnesty Scheme an amount of Rs.2,90,690/- was given exemption to the assessee co-operative society and accordingly W.P.(C)Nos.6414 & 9370 of 2017 35 towards the liability the society had to pay only the balance amount of Rs.1,77,250/-. A true copy of the certificate No.32080562752/1993-94 dated 05.04.2007 issued by the Commercial Tax Officer, 1st Circle, Thrissur, evidencing the above, is herewith produced and marked as Ext.R1(p).
(viii) What have been stated hereinbefore, go to prove positively that the 2nd respondent society has been enjoying financial assistance in various forms, from the Government."
28. I have gone through these submissions quite in extenso. The financial aid that have allegedly been granted by the State to the Society are shown to be in the nature of concessions in rent for the buildings entrusted to the Society by the State or other agencies at the Legislative Assembly; the Legislative Hostel; at the Medical College at Thrissur and Kottayam; at the Government Hospital, Thriruvananthapuram; at the Hospital for Women, Thiruvananthapuram; at the Ernakulam Collectorate; at the KSRTC Depots at Angamaly and Thambanoor and at the Bus Stands at Alappuzha and Thiruvalla. As can be also seen from the averments in the additional counter affidavit extracted above, the interest on the arrears of the turn-over tax W.P.(C)Nos.6414 & 9370 of 2017 36 of the society for the year 1996-1998 was waived and the said tax was allowed to be remitted in 60 instalments. The respondents therein also maintain that with respect to 4.20 cents of Government land, which was leased out to the Society, the lease rent was substantially reduced and concessions were given on that score also. Finally, the affidavit asserts that an amount of Rs.4,67,940/- from the sales tax liability of the Society was allowed to be settled for a much lower amount of Rs.1,77,200/-, in the year 1993-1994.
29. It is on the basis of these instances pointed out in the additional counter affidavit that the State now maintains that it has the power under Section 32 to supersede the Society because it has obtained financial assistance from the Government. The learned Additional Advocate General refers to the judgment of this Court delivered by another learned Single Judge in W.P.(C)No.2719/2017 wherein this Court had found that the payment by the Government to a society under a scheme to write off the loans taken by their members, who were all belonging to the various Scheduled Caste/Scheduled Tribe W.P.(C)Nos.6414 & 9370 of 2017 37 communities, would construe to be an assistance under the provisions of Section 32. The view of the learned Judge in that case is available in paragraph 9 of the said judgment which is extracted below for easy reference:
"9. The official respondents have no case that the Bank is having any Government share holding. But, according to them, the Bank has been enjoying financial assistance in various forms from the Government all throughout like any other society registered under the Act. To demonstrate the same, it is stated by the official respondents in the statement filed in this matter that the Government have under a scheme extended financial assistance to co-operative societies who have given loans to the members of Scheduled Caste and Scheduled Tribe communities to the extent of the outstanding in their loan accounts, after the expiry of the term of the loans and that a sum of Rs.94,848/- has been received by the Bank from the Government by way of assistance under the said scheme. The learned counsel for the petitioner vehemently contended that the said financial assistance is one extended by the Government to the members of the Scheduled Caste and Scheduled Tribe communities and the same cannot be treated as a financial assistance extended to the Bank. True, the financial assistance received by the Bank under the scheme of the Government referred to above had the effect of absolving the loanees of the co- W.P.(C)Nos.6414 & 9370 of 2017 38 operative societies from their liability to liquidate the loan outstanding. But, at the same time, with the assistance, the societies could realise the outstanding dues in their loan accounts. If the intention of the Government in introducing a scheme of the nature referred to above is to provide financial assistance to the members of the Scheduled Caste and Scheduled Tribe communities, there was no need at all to disburse the same to the societies. From the mere fact that the amounts payable under the scheme has been paid to the societies, it is clear that the object was to provide financial assistance to the societies and absolve them from the possible loss that may arise on account of their inability to realise the loan outstanding from the members of Scheduled Caste and Scheduled Tribe communities. Viewed in that perspective, I am of the view that the said financial assistance would take the Bank out of the purview of the third proviso."
30. When a citation is made by the learned Advocate General in this manner, it becomes necessary on my part to assess the facts and to see whether the nature of the alleged assistance in this case would fall within the parameters as have been delimited by this Court in the above judgment. In the case at hand as I have already indicated above, the nature of the assistance granted to the society is essentially concessions in the W.P.(C)Nos.6414 & 9370 of 2017 39 rental of the buildings entrusted to them to run canteens. The Government also say that all the facilities of such canteens including the infrastructure, freezers, fridges, etc. are also provided by them. Of course, this is vehemently refuted by Sri.V.Rajendran, who says that the truth is otherwise and that equipments like freezers, fridges, etc. are never provided by the Government. Whatever that be, I am certain that these will not qualify to be financial assistance within the parameters of the proviso to Section 32 of the Act. These are ineluctably matters of commercial contract between the State or its agencies on the one hand and the Society on the other while the entrustment of the buildings were made. It is admitted to by the learned Additional Advocate General that all these premises were entrusted or leased to the Society under valid agreements. However, no such agreements have been placed on record, which would have enabled me to assess the real nature of the relationship between the Society and the State agencies which had entered into such agreements. Sri.George Poonthottam has produced one such agreement as Ext.P13 in the writ petition. This is an agreement W.P.(C)Nos.6414 & 9370 of 2017 40 between the Society and the Government Secretariat with respect to a canteen. He says that, as is ex-facie clear from it, this is a pure contract between the two parties wherein certain concessions are definitely given to the Society, but only in return of certain other benefits and services to be provided by the Society akin to subsidy and reduction in cost of food articles. Since these are essentially in the realm of contract between the parties, I am unable to grant sanction to the submission of the learned Advocate General, that such entrustment of the canteen for a lower rent would amount to financial assistance.
31. Similar is the case with respect to the concessions given to the turn-over tax and the sales tax liability. The interesting issue in this regard is that such concessions were given to the Society only under the relevant general notifications issued by the Government granting reduction to everyone, including persons and institutions, in the State of Kerala who are interested in obtaining the benefits of such scheme, for the purpose of settling tax liabilities. The Society had obviously applied under the scheme and the benefits under it were given to W.P.(C)Nos.6414 & 9370 of 2017 41 them, as was given to all others who were eligible, for settlement of tax liabilities under a reduced rate. This can, by no stretch of imagination, be seen to be financial assistance given to the Society, since benefits were extended to them under a general scheme of amnesty available to everybody else. Similarly, regarding the issue of the land leased to the society under a Government lease, it is probable that the Government had granted them a concession while extending the said lease. However, this is not on the basis of a financial assistance offered to the Society, but on the basis of SRO No.500/2004, which is a notification issued by the Government of Kerala, under which the arrears of lease with respect to land leased out to institutions of any nature could be settled by remitting 25% of such arrears. The Society had availed of this benefit under the notification and settled the arrears of lease, which benefit cannot qualify to be said or seen to be financial assistance to the Society from the Government.
32. In any event of the matter and that the above being said, the words 'financial assistance' is used immediately after W.P.(C)Nos.6414 & 9370 of 2017 42 the word 'loan' in the proviso to Section 32. Applying the principles of ejusdem generis, it is obvious that any benefit granted to the society under that head will have to be either a loan or such other financial assistance which partakes the character of a loan or a guarantee by the Government. The so called reductions/deductions and subsidies that were granted to the society have not been granted to it under any particular scheme but under commercial contracts and Government requisitions, under which the terms would possibly disclose reciprocal obligations. However, since these contracts are not brought before this Court, I cannot say anything further, except that the entrustment of canteens by the Government being contractual, it would not qualify in any manner as a financial assistance even if the rent is a reduced one since, as Sri.George Poonthottam pointed out, there is a reciprocal obligation for the Society under such entrustment to provide food at a subsidised rate.
33. Since there is no material on record as I have already recorded above, to show that the society has applied for and W.P.(C)Nos.6414 & 9370 of 2017 43 availed of any financial assistance from the Government, in the manner provided in proviso to Section 32, it is only limpid that the rigour of the said proviso would operate against an action of supersession in the case of the Society and for that reason also Ext.P6 would become incompetent.
34. Sri. P.C.Sasidharan, at this point of time, invites my notice to the amendment brought in Section 32, which has taken effect from 10.04.2017. I am not sure that this amendment would apply because the date of Ext.P6, namely, the order of supersession, is 22.02.2017. However, in order to test the submissions of Sri. P.C.Sasidharan, I have examined the amendments contained therein. Under these amendments, the words 'financial assistance' has been defined to include financial assistance from Kerala Co-operative Development and Welfare Fund Board, Deposit Guarantee Scheme implemented by Kerala State Co-operative Deposit Guarantee Fund Board, Risk Fund Scheme implemented by Kerala Co-operative Development and Welfare Fund Board, NABARD, National Co-operative Development Corporation and any other financial institution W.P.(C)Nos.6414 & 9370 of 2017 44 under the control of the State or Central Government and also any financial assistance guaranteed by the said institutions. I am afraid that even if the amendment is employed in this case, the alleged benefits given to the Society by the Government would not fall within the parameters of the concept of financial assistance containing in Section 32. There is no case for the Government that any such financial assistance from any of the Boards or institutions mentioned in the amendment has been granted to the Society or given to them. At any rate, nothing has been placed on record that the society applied to the Government for any financial assistance under any scheme and that any such assistance was granted by the Government consequent to such request made by them at any point of time until now. The submissions of the learned counsel on the basis of the amendments of Section 32 would also, therefore, garner no force in the facts of the case.
35. The legal issues as noticed above been so answered and found by me, the petitioners pointedly referred to Ext.P4 enquiry report to contend that Ext.P6 is not tenable on facts W.P.(C)Nos.6414 & 9370 of 2017 45 either, since the factors that weighed with the General Manager, District Industries Centre are irrelevant in law. On the other hand, Sri. P.C.Sasidharan and the learned Advocate General relied on the same to show that large amounts of violations and transgressions. However, I do not deem it appropriate to even look into the contents of the report for the reason that by doing so I will have to enter into evaluation and assessment of disputations of facts have been proved against the Society. As I have already indicated in paragraph 8 of this judgment (supra), it is not my intention nor is it the province of this Court to consider Ext.P4 report on its merits. I, therefore, desist from doing so and take it, but only for the purpose of this case that what is stated in Ext.P4 may be the truth, subject to other remedies available to the petitioners. I dissuade myself from saying anything on the merits of Ext.P4 in this judgment and leave it to the parties to agitate the same if they are so advised and if it is so required, in appropriate proceedings.
36. In the compendium of my observations and conclusions as recorded above, I am certain that Ext.P6 order of W.P.(C)Nos.6414 & 9370 of 2017 46 the General Manager, District Industries Centre, Thrissur, even if conceded to be re-designated as Regional Joint Director of Industries and Commerce, cannot find forensic sustenance and would necessarily have to be seen as infirm and being without legs to stand on, since the jurisdictional competence of the said officer to issue that order is completely under a cloud, which cannot be set right merely because some action had been taken by the said officer in the past as if he is a Registrar.
37. I, therefore, have no other option but to quash Ext.P6 order and to direct the Administrator, appointed by the General Manager, District Industries Centre, Thrissur in terms of Ext.P6 order, to hand over the charge of the management of the Society to its elected managing committee, under the terms of Section 28 of the Act, forthwith and without any further delay.
38. In view of my opinion and views in W.P.(C) No.9370/2017 as recorded above, the question whether W.P.(C) No.6414/2017 is competent or otherwise does not merit any detailed consideration, since even without that writ petition the conclusions that I have entered into in W.P.(C)No.9370/2017 W.P.(C)Nos.6414 & 9370 of 2017 47 would stand in proprio vigore.
These Writ Petitions are thus ordered. In the peculiar facts and circumstances of these cases, I refrain from making any order as to costs and leave the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN JUDGE sd // True Copy // P.A. to Judge