IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 WP(C).No. 17652 of 2007(B) ------------------------------- PETITIONERS: --------------- 1. G.MADHAVAN NAMBOOTHIRI, ADIMANA ILLOM, THAKAZHY P.O., ALAPPUZHA. 2. S.AJITH, KONAD VEEDU, THAKAZHY P.O., ALAPPUZHA. 3. P.SOBHA, CHIRYIL VEEDU, THAKAZHY P.O., ALAPPUZHA. 4. T.K.VASANTHY, PRATHEESH BHAVAN, THAKAZHY P.O., ALAPPUZHA. 5. K.UTHAMAN, PUTHENVEEDU, THAKAZHY P.O., ALAPPUZHA. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENTS: ----------------- 1. THAKAZHY VILLAGE, SERVICE CO-OPERATIVE BANK LTD.NO.958, THAKAZHY P.O., ALAPPUZHA, REPRESENTED BY ITS SECRETARY. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ALAPPUZHA. 3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KUTTANAD. BY ADV. SRI.R.HARIKRISHNAN FOR R1 SRI.E.JAYADEV FOR R1 SRI.SUDHEENDRAN. K.Y. FOR R1 SMT.R.REMA FOR R1 GOVERNMENT PLEADER FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17652 of 2007 APPENDIX PETITIONERS EXHIBITS: EXHIBIT P-1 : TRUE COPY OF ORDER DATED 3/8/06 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P-2 : TRUE COPY OF NOTICE DATED 25-9-2006 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P-3 : TRUE COPY OF REQUEST DATED 19-10-06 SUBMITTED BY THE PRESIDENT OF THE BANK BEFORE THE 1ST RESPONDENT. EXHIBIT P-4 : TRUE COPY OF ORDER DATED 25-10-06 IN WP(C) nO.2790/06. EXHIBIT P-5 : TRUE COPY OF REPLY SUBMITTED BY THE PRESIDENT OF THE BANK BEFORE THE 1ST RESPONDENT. EXHIBIT P-6 : TRUE COPY OF NOTICE DATED 18-4-07 SEND ON THE 1ST PETITIONER. EXHIBIT P-7 : TRUE COPY OF REPLY DATED 2/5/07 SUBMITTED BY THE PRESIDENT OF THE BANK. EXHIBIT P-8 : TRUE COPY OF REPORT DATED 27/1/07 OF THE 2ND RESPONDENT. EXHIBIT P-9 : TRUE COPY OF ORDER DATED 5-5-2007 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P-10: TRUE COPY OF ORDER DATED 23-5-2007 ISSUED BY THE 2ND RESPONDENT. -TRUE COPY- P.A. TO JUDGE bps THOTTATHIL B. RADHAKRISHNAN, J. ----------------------------------------------- W.P.(C) No. 17652 of 2007(B) ----------------------------------------------- Dated this the 27th day of June, 2008 J U D G M E N T Ext.P9, an order of supercession under Section 32 of the Kerala Co-operative Societies Act, is under challenge. The petitioners, the members of the superseded committee, attack that order on different grounds. It is contended that the said order has been issued on a preconceived conclusion arrived at, even before the issuance of Ext.P6 notice. The consultations with the Circle Co-operative Union and the financing institutions were not conducted in terms of a legislative command, but have been reduced to a mere formality, it is contended. The pace at which the impugned order has been generated after the hearing, is criticized as humanly impossible and therefore, it is urged that it has to be presumed that the impugned order was got ready even before conclusion of hearing. W.P.(C)17652 of 2008 2 2. The learned special Government Pleader for Co- operation, supporting the impugned order argued that even Ext.P6 shows that copies of that notice was issued to the Circle Co-operative Union and the financing institutions calling for opinion and that a tentative opinion was also sent. It is further argued that the irregularities found are so grave and relatable to finance as well as administration and the mere fact that the officer acted promptly, cannot be treated as an extraordinary situation calling for any interference on any presumption as to impropriety, illegality or irregularity. 3. Ext.P6 notice containing as many as twelve allegations, is dated 18-04-2007. The parties are required to attend hearing on 02-05-2007. On that day, it is stated, a report Ext.P8 was put to the petitioners and they took an adjournment and the matter was listed on 05-05-2007. Obviously, the hearing on 05-05-2007 could have been only W.P.(C)17652 of 2008 3 during the office hours. There is no contention to the contrary. The impugned Ext.P9 which runs to 11 pages is shown have been typed and issued on 05-05-2007 itself. That is date of hearing. The Administrator took charge on the same day. The specific assertion in the writ petition that the Administrator took charge at 1.30 pm on 5-5-2007 is not refuted though a counter affidavit is placed on record through the Senior Inspector of Co-operative Societies. 4. Ext.P9 deals with 12 allegations. The petitioners had filed written objections to Ext.P6 notice. Excellence in administrative performance is a national asset. But, in the case in hand, I am not inclined to take the view that after the hearing on 5-5-2007 following the earlier hearing on 2-5-2007, Ext.P9 was drafted, typed and issued on that day itself, to enable the Administrator to take the charge at 1.30P.M. on the day itself. W.P.(C)17652 of 2008 4 5. The aforesaid is not the only ground on which the impugned order is challenged. Copies of Ext.P6 notice is forwarded to the Circle Co-operative Union and the financing Bank. It is also stated that a tentative decision was also forwarded but a tentative decision cannot precede the consideration of the objections to the show cause notice. Therefore, any formulation of a tentative decision that could have been communicated along with Ext.P6 was a one sided view of the matter and no decision, even tentative, could have been arrived at without even obtaining the objections of the committee. Not only that, following the concept of consultation as contemplated in Sub Section 2 of Section 32 of the Act, this Court has laid down categorically in Sahadevan v. Padmanabhan (2004 (1) KLT 192) that such consultation provided by that statutory provision can be effected meaningful only if the show cause notice issued under Section 32(1) the explanations/objections given by the committee to such show cause notice and the W.P.(C)17652 of 2008 5 tentative findings arrived by the Joint Registrar after considering such explanations/objections are also forwarded to the finanacing Bank and the Circle Co-operative Union. Violation of such a procedure has occurred, clearly, in this case as in Sahadevan's case (supra). It is not a case where the Joint Registrar decided to exclude consultations. On this ground also the impugned order cannot stand. 6. However grave the allegations may be, and unacceptable, the objections may be, due procedure of law has to be followed to deprive the committee of a Co- operative Society of the right to hold office. The exercise of power under Section 32 has been treated as one to be exercised exceptionally. Therefore, the mere fact that the gravity of the allegations required an order is no answer to violation of the mandatory prescriptions of law. W.P.(C)17652 of 2008 6 For the foregoing reasons, the impugned Ext.P9 is set aside. The committee which has been superseded by that order will stand restored forthwith. This writ petition is allowed as above. No costs. THOTTATHIL B.RADHAKRISHNAN, Judge. bps/1-07-2008