IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(C).No. 13481 of 2007(E) -------------------------- PETITIONER(S): --------------- 1. K.SREEDHARAN, MULAYAMTHANNI VADAKETHIL PUTHENVEEDU, NELLIMOODU P.O., NEYYATTINKARA. 2. B.SIVAKUMAR, SREE BHAVAN, VALIYAVILA, KOTTAKKAL, NELLIMOODU P.O., NEYYATTINKARA. BY ADV. SRI.K.HARILAL RESPONDENT(S): --------------- 1. THE RETURNING OFFICER, NELLIMOODU SERVICE CO-OP. BANK LTD.NO.2639, NELLIMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM (UNIT INSPECTOR, NEYYATTINKARA, OFFICE OF THE ASSISTANT REGISTRAR (GENERAL), NEYYATTINKARA). 2. NELLIMOODU SERVICE CO-OP. BANK LTD. NO.2639, NELLIMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM , REPRESENTED BY ITS SECRETARY. 3. G.BABU, TARA KUMARAVILA, NELLIMOODU, NEYYATTINKARA,THIRUVANANTHAPURAM. 4. M.R.VIJAYADAS, PETNAVILASAM, NELLIMOODU, NEYYATTINKARA,THIRUVANANTHAPURAM. 5. M.PONNAYYAN, KOTTAKUZHI VEEDU, NELLIMOODU, NEYYATTINKARA,THIRUVANANTHAPURAM. 6. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 7. KERALA STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM. ADV. SRI.D.SOMASUNDARAM FOR R3 TO 5 MR.K.S.MOHAMMED HASHIM, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/07/2009, ALONG WITH WPC NO. 5507 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.13481 of 2007 & 5507 of 2008 --------------------------------- Dated, this the 17th day of July, 2009 J U D G M E N T The issue raised in WP(C) No.13481/2007 is regarding the acceptance of nomination of respondents 3 to 5, while the issue raised in WP(C) No.5507/2008 is regarding the validity of Ext.P4 order dated 30/06/2007 passed by the Government. 2. For sake of convenience, I shall mainly refer to the facts pleaded and documents produced, in WP(C) No.13481/2007. 3. Briefly, stated, the facts of the case are that the petitioners are the members of Nellimoodu Service Co-operative Bank Limited, Neyyattinkara. While respondents 3 to 5 were members of the Board of Directors, an order was passed by the Joint Registrar of Co-operative Societies under Section 68 of the Kerala Co-operative Societies Act (hereinafter referred to as the Act for short), levying surcharge on them, in relation to the acquisition of an immovable property. They filed appeal before the Government WP(C) Nos.13481/2007 & 5507/2008 -2- under Section 83(1)(j) of the Act. During the pendency of the appeal, the Joint Registrar initiated proceedings for disqualification as contemplated under Rule 44 of the Kerala Co-operative Societies Rules (hereinafter referred to as the Rules for short). That notice was challenged before this Court by the affected parties by filing WP (C) No.34725/2004. The writ petition was disposed of by Ext.P3 judgment recording that proceedings were initiated during the pendency of the appeal, and setting aside the same, reserving liberty to the Joint Registrar to initiate fresh steps after the disposal of the appeal. The appeal filed by respondents 3 to 5 and others was finally dismissed by the Government as per Ext.P1 order dated 11/11/2005. The affected parties did not challenge the order in any manner, and thus the order became final. 4. Subsequently, election to the Board of Directors fell due in 2007 and was scheduled to be held on 15/04/2007. On 02/04/2007, nominations were filed by respondents 3 to 5 herein also, who were surcharged as per Ext.P1 order referred to above. On 03/04/2007, during the course of the scrutiny, the petitioners objected to the acceptance of the nominations submitted by respondents 3 to 5 by filing Ext.P2, mainly referring to Ext.P1 WP(C) Nos.13481/2007 & 5507/2008 -3- referred to above and Rule 35(3)(d) and Rule 44(1)(c) of the Rules. However, nomination was accepted by the Returning Officer. 5. At that stage, acceptance of the nominations of respondents 3 to 5 was challenged before this Court in WP(C) No.11929/2007. That writ petition was disposed of by Ext.P4 judgment dated 09/04/2007 directing the Retuning Officer to defer the election for a short while, and to consider the impact of Ext.P1, and to decide on the issue whether the nomination of respondents 3 to 5 were liable to be accepted or rejected. It is stated that in pursuance to Ext.P4 judgment, Ext.P5 notice was issued by the Returning Officer on 11/04/2007 requiring the parties to appear before him on 13/04/2007 for an enquiry. Among others, the petitioners also appeared before the Returning Officer, and reiterated their contentions by filing Ext.P6. However, the Returning Officer published Ext.P7 final list of candidates accepting the nomination of respondents 3 to 5. Accordingly, election was held, respondents 3 to 5 contested and won the election. The acceptance of the nomination pursuant to the hearing held on 13/04/2007 is challenged in WP(C) No.13481/2007. 6. In the meanwhile, the petitioners herein came to know WP(C) Nos.13481/2007 & 5507/2008 -4- that respondents 3 to 5 had filed a review petition before the Government (produced as Ext.R3(a) dated 10/04/2007 in the counter affidavit), in which, the Government passed an order dated 11/04/2007 staying the order dated 04/11/2004 passed by the Joint Registrar under Section 68 of the Act, which was confirmed in Ext.P1 order dated 11/11/2005 of the Government. It is stated that it was pursuant to the order of stay passed by the Government that the Returning Officer decided to accept their nominations on 13/04/2007. It is also stated that respondents 3 to 5 and others had also approached this Court by filing WP(C) No.14414/2007 praying for an expeditious disposal of Ext.R3(a) revision, and that this Court by judgment rendered on 11/05/2007, disposed of the writ petition directing the Government to consider and pass orders on the review petition without delay. It is stated that subsequently, by Ext.R3(c) order dated 30/06/2007, the review petition was allowed by the Government and the order dated 04/11/2004 passed by the Joint Registrar was set aside. Producing Ext.R3(c) order referred to above as Ext.P4, the petitioners have filed WP(C) No.5507/2008 seeking to set aside the said order. It is these two writ petitions, which are being heard together. WP(C) Nos.13481/2007 & 5507/2008 -5- 7. The contention raised by the learned counsel for the petitioners is that by Ext.R3(a) referred to above, review of Ext.P1 was sought for, and that it was on the basis of the stay order passed by the Government on 11/04/2007, the Retuning Officer accepted the nomination of respondents 3 to 5. It is stated that the statute does not confer any power of review on the Government and in the absence of which, Ext.R3(a) review petition was misconceived and the stay order dated 11/04/2007 and Ext.P4 order allowing the review setting aside the order passed under Section 68 of the Act, are without jurisdiction. 8. On the other hand, the learned counsel appearing for respondents 3 to 5, who have got Ext.P1 reviewed, in the manner as stated above, contends for the position that the order of surcharge passed by the Joint Registrar was absolutely an illegal order. According to him, there was no violation of Rule 54 of the Rules, and therefore, the order for recovery of the value of the land purchased by the Society is totally illegal. It is stated that it was because of the patent illegality of the order that the Government entertained Ext.R3(a) and realising that Ext.P1 referred to above was vitiated by mistakes, the Government corrected the mistake by WP(C) Nos.13481/2007 & 5507/2008 -6- Ext.P4 in WP(C) No.5507/2008. It is stated that the aforesaid exercise of power by the Government ought to be upheld by this Court. 9. Dehors the unnecessary details, from the facts narrated above, what is disclosed is that an order of surcharge under Section 68 was passed by the Joint Registrar on 04/11/2004. Appeal was filed and by Ext.P1 order dated 11/11/2005, the order was confirmed, and that order was not challenged by any of the affected parties in any manner known to law, and has thus attained finality. At the time when nomination was filed on 02/04/2007, the order was very much in force and in view of the provisions contained in Rules 35 and 44, the nominations could not have been accepted. On 09/04/2007, this Court directed the Returning Officer to consider the validity of nomination in the light of Ext.P1 order passed under Section 68 of the Act. On the next day, despite the lapse of almost two years, review of Ext.P1 order was sought and the order of the Joint Registrar was readily stayed by the Government on 11/04/2007, and ultimately, the review sought was allowed by Ext.P4 order dated 30/06/2007 challenged in WP(C) No.5507/2008. WP(C) Nos.13481/2007 & 5507/2008 -7- 10. In this back ground, the only question that arises for consideration is whether the Government was justified in exercising the power of review. The learned counsel for the petitioners contended that the statute does not confer any power of review on the Government, and the learned counsel for the respondents also has no case that power of review has been conferred on the Government. The position, that unless the power of review is expressly conferred, the authorities do not have this power, is too well settled and needs no reiteration. The only exemption to this general settled principle of law is where the order is vitiated by fraud. See in this connection, the judgment of the Division Bench of this Court in Siva Kumar v. Sreekumar (2002(1) KLT 354). 11. In this case, a reading of Ext.P4 referred to above does not give any impression that it was because the order passed by the Joint Registrar or the order confirming the same, was vitiated by fraud or mistake that the Government chose to exercise power of review. Even if it is assumed that the order passed by the Joint Registrar or the Government was illegal for any reason, such illegality could have been rectified only in the manner known to law. That was not done, and hence Ext.P1 attained finality and could not WP(C) Nos.13481/2007 & 5507/2008 -8- have been set at naught in the manner it is done. If that be so, in view of the admitted position, that no power of review is conferred on the Government, Ext.R4(a) review petition was misconceived. Consequently, the order dated 11/04/2007 staying the order passed by the Joint Registrar under Section 68 and Ext.P4 order dated 30/06/2007 are also passed without jurisdiction. If that be so, these orders required to be set aside and I do so. 12. Necessarily therefore, the consequences of the order dated 04/11/2004 passed by the Joint Registrar levying surcharge and as confirmed by the Government as per Ext.P1 order dated 11/11/2005, will follow on the acceptance of the nomination of respondents 3 to 5 and all consequent action taken on that basis are vitiated in view of Rules 35 and 44 of the Rules. The Joint Registrar of the Co-operative Societies is directed to take further action on the aforesaid basis, on the production of a copy of this judgment. These writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) jg