IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 24774 of 2008(Y) -------------------------- PETITIONER(S): --------------- T.K.PORINCHU THEKKEKKARA HOUSE, AMMADAM PO, TRICHUR DISTRICT BY ADV. SRI.GEORGE POONTHOTTAM SRI.T.R.RAVI RESPONDENT(S): --------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) TRICHUR. Addl.2. THE TRICHUR DISTRICT CO-OPERATIVE HOSPITAL LTD., SHORNUR ROAD, TRCHUR, REPRESENTED BY THE SECRETARY. Addl.2 is impleaded as per order dated 28.8.2009 in I.A.NAO.10273/09 ADV. SRI.P.C.SASIDHARAN SPL.GOVT.PLEADER SMT.I.SHEELA DEVI FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1. True copy of the order No.CRB No.3154/08/K. Dis dated 2.7.2008. Ext.P2. True copy of the notice No.CRB 3154/2008 dated 21.5.2008. Ext.P3. True copy of the request dated 26.5.2008. Ext.P4. True copy of the judgment in WP(c).No.15897/08 dated 28.5.2008. Ext.P5 True copy of the communication dated 4.6.2008 by the respondent enclosing a copy of the application given for membership and the report of the Asst. Registrar. Ext.P6. True copy of the statement given by the petitioner on 25.6.2008. // TRUE COPY// P.A to Judge. ANTONY DOMINIC,J. --------------------- W.P.(C).No.24774 OF 2008 ------------------------ Dated this the 28th day of August, 2009. JUDGMENT The prayer in this writ petition is to quash Ext.P1 order passed by the Ist respondent and to declare that the Ist respondent has no authority to cancel the membership granted to the petitioner, in the Thirssur District Co- operative Hospital Ltd., a Co-operative Society (Society for short) registered under the Kerala Co-operative Societies Act ( `the Act' for short). 2. Facts of the case are that, pursuant to Ext.P5(2) application made by the petitioner on 22.4.1993, the Administrator, who was then in office, admitted the petitioner as a member of the Society with membership No.6509, granted on 27.4.1993. Subsequently, election was notified to be held in 1996 and the Returning Officer removed petitioner's name from the voters list. This was WP(c).No.24774/08 2 challenged before this court in O.P.No.19104/96 and on the strength of the interim order obtained, petitioner contested and won the election. Finally, the Original petition was disposed of relegating the petitioner to raise dispute before the statutory authorities. 3. Accordingly, ARC.Nos.120/1997 and 121/1997 were raised by the petitioner and others who were removed from the voters list and finally award was rendered by the Arbitrator upholding the action of the Returning Officer. Appeals were filed before the Tribunal and on the strength of the interim order obtained, the committee continued in office. Petitioner submits that while so, in the judgment in Hassan V. Joint Registrar of Co-operative Societies (1998(2) KLT 746 rendered on 28.8.1998, a Full Bench of this court held that an Administrator did not have power to admit members in a society. It is stated that with the declaration of law as above membership No.6509 granted to the petitioner on 20.4.1993 had become non-est in the eye of law. WP(c).No.24774/08 3 4. In the above background, on 17.11.1998, the petitioner submitted Ext.P5(3) application for membership, which was received by the Society on 20.11.1998. It is stated that pursuant to the application, the committee by its resolution dated 21.11.1998, granted the petitioner membership No.12078. Subsequent to this, according to the petitioner, Administrator was again appointed and in 1999 the appeals which were pending in the Tribunal against the award of the Arbitrator were dismissed as not pressed. 5. According to the petitioner, he had only membership No.12078 and he contested the elections held in the meanwhile and was also the President of the Society for different terms. In 2008, again the Administrative Committee was appointed on 19.3.2008 and thereafter, referring to report dated 17.5.2008 of the Assistant Registrar, Ext.P2 show cause notice was issued by the Ist respondent on 21.5.2008 alleging that on the strength of the membership No.6509 granted on WP(c).No.24774/08 4 27.4.1993 petitioner had contested the elections to the Board of Directors of the Society in 1993 and 1996 and that suppressing the aforesaid membership and against the provisions of the bye laws, applied for a new membership on 20.11.1998 and obtained membership No.12078 dated 21.11.1998 and contested in the election in 2004 and 2006. It is stated that the said act of the petitioner was against the bye laws of the Society and that under Rule 16(4) of the Kerala Co- operative Societies Rules (` the Rules' for short), he was liable to be removed from the membership of the Society. On the above allegations petitioner was called upon to show cause against the said proposal. 6. On receipt of Ext.P2, petitioner submitted Ext.P3 requesting the Ist respondent to furnish details mentioned therein to submit his reply to Ext.P2. It is stated that details were not given and therefore WP(c).No.15890/08 was filed, resulting in Ext.P4 judgment directing the respondent to consider Ext.P3 request of the petitioner and to issue the WP(c).No.24774/08 5 necessary materials sought for. In pursuance to the said judgment Ext.P5 letter was issued enclosing Exts.P5(2), P5(3), the applications dated 22.4.1993 and 20.11.1998 made by the petitioner and the report dated 17.5.2008 based on which Ext.P2 was issued. He submitted Ext.P6 reply to the show cause notice and finally by Ext.P1 order dated 2.7.1998, the Ist respondent ordered removal of the petitioner from membership No.12078, exercising his powers under Rule 16 (4) of the Rules ). 7. The contentions raised by the counsel for the petitioner are mainly twofold. The first is that, membership No.6509 was granted by the Administrator and that with the declaration of law that the Administrator had no power to admit members in a Society, as per the Full Bench judgment rendered on 28.8.1998 in Hassan V. Joint Registrar of Co- operative Societies (1998(2)KLT 746), membership No.6509 granted to him, had become non-est in the eye of law. It is therefore stated that, when he made application for WP(c).No.24774/08 6 membership on 17.11.1998, there is no question of suppression of any previous membership. The other contention canvassed is that Rule 16(4) of the Kerala Co- operative Societies Rules which confers power on the Registrar to declare that a member of the Society has ceased to be a member is applicable only when the member “becomes ineligible to continue as such”. It is contended that the ineligibility contemplated in the Rule should continue until action is initiated against the member. It was contended that in this case, even according to the Ist respondent, petitioner was removed from membership No.6509 on 10.2.2001 and therefore, there was no ineligibility attached to membership No.12078 at the time when Ext.P2 show cause notice was issued on 21.5.2008 and therefore Rule 16(4) could not have been invoked in this case. 8. The learned Special Government Pleader contended that under clause 5 of the bye-laws of the Society a person can have only one membership and that it was suppressing the WP(c).No.24774/08 7 fact that he had already membership No.6509 in the society, the petitioner made application on 17.11.1998 and obtained membership No.12078. It is stated that this conduct of the petitioner is against the bye-laws of the Society and therefore attracted the ineligibility provided in Rule 16(1)(c) of the Rules and rendered the petitioner liable to be proceeded against under Rule 16(4) of the Rules. It is also contended that, if a person was ineligible for admission or suffers any ineligibility after his admission as a member, in both cases, the Registrar is competent to take action under Rule 16(4). 9. I shall now deal with the contentions raised by the parties. 10. The first contention of the petitioner is that with the declaration of law in Hassan's case (1998(2)KLT 746), his membership No.6509 had become non-est in the eye of law and therefore when he made the application on 17.11.1998, he did not have membership No.6509 to have suppressed it as alleged in Ext.P2 show cause notice. As already noticed, WP(c).No.24774/08 8 the Administrator granted membership No.6509 to the petitioner on 27.4.1993. He was removed from the voters list on 4.12.1996. Such removal as per Rule 35 of the Rules was only from the voters list and was not an expulsion from the membership of the Society {See Vijayakumar V. Joint Registrar (1996(1) KLT 285)}. Therefore, even during this period and thereafter, the petitioner continued as a member of the Society and on the strength of interim orders obtained from this court and from statutory authorities, petitioner contested the election and was even the President of the Society. It is on record that he was actually removed from the membership No.6509 of the Society, only on 10.2.2001, which was long after he obtained membership No.12078. 11. True, as contended by the counsel for the petitioner, in the judgment in Hassan's case rendered on 28.8.1998, the Full Bench had declared that the Administrator was incompetent to admit members in a society. This position has been reiterated by another Full Bench in Cherthala Agri. R.D. WP(c).No.24774/08 9 Bank V. Joint Registrar (2000(1)KLT 730) and again by the Division Bench in a case filed by the petitioner himself, Viz. Porinchu V. Joint Registrar (2004(1) KLT 281). With the declaration of law as above, membership No.6509 granted to the petitioner had become an illegal one. But then, once a person is granted membership in a Society, even if it is illegal for some reason, unless he is removed following the procedure laid down in Rule 16(3) or (4) of the Rules, the membership will continue. Therefore, legally and factually, petitioner continued as a member of the Society and had contested the elections held and thus was enjoying all rights and privileges as a member of the Society. This position continued until he was actually removed from Membership No.6509 on 10.2.2001. Therefore, I am not prepared to accept the contention of the counsel for the petitioner that, once the law was declared by the Full Bench, in Hassan's case, that resulted in the automatic removal of the petitioner's membership from the rolls of the Society. WP(c).No.24774/08 10 12. Counsel for the petitioner relied on the Apex court judgment in U.P.Pollution Control Board & Ors. V. Kanoria Industrial Ltd. & anor.( 2001(2) SCC 549) to contend that in view of the binding nature of the judgment of the Apex Court, the declaration of law would bind not only the parties to the litigation but on all persons. A reading of the judgment shows that the said judgment was rendered in the context of Article 141 of the Constitution of India, which declares that the law laid down by the Apex Court is the law of the land. That principle cannot have any application to the facts of the case on hand and therefore is of no assistance to the petitioner. 13. In view of the above, I must uphold the contention of the Ist respondent that the petitioner's removal from membership No.6509 was only on 10.2.2001 and that until then he continued as a member of the Society. If that be the position, necessarily in view of the provision contained in clause 5(a) of the bye laws that a person can have only one membership in the Society and so long as the membership was WP(c).No.24774/08 11 valid, the petitioner could not have applied for a second membership on 17.11.1998 and obtained membership No.12078. 14. The second contention raised by Sri. George Poonthottam, learned counsel for the petitioner, is relying on Rule 16(4) of the Kerala Co-operative Societies Rules. Rule 16 provides the conditions to be complied with for membership in a Society. Rule 16(1) provides that no person shall be admitted as a member of a Society unless he satisfies the qualifications specified in clauses (a) to (d). Rule 16(2) provides that no person shall be eligible for admission as member of a co- operative society, if he has suffered any of the ineligibilities provided in clauses (a) to (f) there of. Rule 16(3) confers power on the committee of the Society to remove a person from the membership of the Society and Rule 16(4) confers power on the Registrar, to declare that a person has ceased to be a member of the Society. Rules 16 (3) and (4), being relevant to appreciate the contention raised by the counsel for the WP(c).No.24774/08 12 petitioner, are extracted below for reference. “(3) Where a person already admitted to membership is seen to have been ineligible for membership at the time he was so admitted as a member or if he subsequently becomes ineligible for membership the Committee of the Society may remove the person from membership after giving him an opportunity or making his representation if any, and the person concerned shall thereupon cease to be a member of the society. (4) Where a member of a society becomes ineligible to continue as such, the Registrar may of his own motion or on a representation made to him by any member of the society or by the financing Bank, by an order in writing declare that he has ceased to be a member of the Society from the date of his order. The Registrar shall give such person an opportunity to state his objection, if any, to the proposed action and if the person wishes to be heard, he shall be given an opportunity to be heard before passing an order as aforesaid.” 15. It can be seen from Rule 16(3) that this provision deals with the ineligibility of a person for membership, at the time when he was admitted and also cases where a member subsequently becomes ineligible for membership. Therefore, Rule 16(3) deals with the existing ineligibility of a member at WP(c).No.24774/08 13 the time of his admission into a society and the ineligibility suffered subsequent to the admission also. When we come to Rule 16(4), it can be seen that the Registrar's power under Rule 16(4) is confined to cases where a “member of a Society becomes ineligible to continue as such.” In such a case, the Registrar may, by order in writing, declare that such member has ceased to be a member of the Society, from the date of the order. 16. The phraseology used in Rule 16(4) shows that the ineligibility should be a continuing one. If that be so, the question is whether the ineligibility provided in Rule 16(4) should be a continuing one, till the time when the Registrar initiates action for declaring that the member concerned has ceased to be a member of the Society. In view of the wording of the Rule, I am inclined to think that, since the rule provides that, “where a member of a Society becomes ineligible to continue as such,” the ineligibility should be suffered by the member subsequent to his acquisition of membership and WP(c).No.24774/08 14 should be a continuing ineligibility and that such continuance is a condition precedent for initiating proceedings under Rule 16(4) against the member. In this context, I should refer to the judgment of a Division Bench of this court in Abdul Rasheed V. State of Kerala (1988(1) KLT 190), where, dealing with the wording of Rule 44(1) of the Rules in the present tense, this court has held that the disqualification should exist when action is initiated under the said Rule. Similarly, in view of the wording of Rule 16(4), the ineligibility should be a continuing one and should exist on the date when the show cause notice is issued. Otherwise, the Rule will have the effect of enabling the Registrar, to pick up instances which have occurred long in the past, and initiate action, whenever it suits him. Such power will be arbitrary and the Rule making authority did not intend to confer any such power. 17. As we have already seen, Ext.P2 show cause notice was issued on 27.5.2008. Even going by the impugned order, the petitioner was removed from membership No.6509 on WP(c).No.24774/08 15 10.2.2001. If that be so, the ineligibility provided under Rule 16(4), did not continue beyond his removal from membership No.6509 and if so the petitioner was not ineligible to continue as such, when proceedings were initiated by Ext.P2 show cause notice. If that be so, the Registrar could not have initiated action under Rule 16(4) of the Rules and declared that the petitioner ceased to be a member of the Society with effect from the date of his order, viz., 2.7.2008. For that reason, Ext.P1 order is illegal and has to be set aside and I do so. Writ Petition is allowed quashing Ext.P1. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.24774/08 16