IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 RP.No. 417 of 2009(D) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.31536/2008 dtd. 12/03/2009 .................... REVIEW PETITIONER(S): PETITIONER: ---------------------------------------------------------- G. JESUDASAN, PRESIDENT, BOARD OF DIRECTORS, THE SASTHAMCOTTA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. Q-373, SASTHAMCOTTA, KOLLAM DISTRICT. BY ADV. MR.GEORGE POONTHOTTAM RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KOLLAM. 2. THE SASTHAMCOTTA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. Q-373, SASTHAMCOTTA, KOLLAM DISTRICT, REPRESENTED BY THE SECRETARY. 3. THE PART TIME ADMINISTRATOR, THE SASTHAMCOTTA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. Q-373, SASTHAMCOTTA, KOLLAM DISTRICT. 4. N. SREEDHARAN, MEMBER NO. A.0018642, SASTHAMCOTTA SERVICE CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK, SASTHAMCOTTA, RESIDING AT AJAYA BHAVANAM, KUNNATHUR WEST-PO, KOLLAM DISTRICT. R1 BY GOVERNMENT PLEADER SMT. K.R. DEEPA R4 BY ADV. MR. P.C. SASIDHARAN, SC THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 26/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P.417/2009 in W.P.(C).31536/2008-D = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of May, 2009. O R D E R “CR” 1.Review petitioner filed WP(C).31536/2008 challenging an order of supersession under Section 32 of the Kerala Co-operative Societies Act, 1969, hereinafter, the “Act”, for short. That writ petition was allowed by judgment dated 12.3.2009, 2009(2) ILR Kerala 323, on the sole ground that the decision impugned therein was rendered by an officer other than the one who heard the committee which was superseded thereby. It was clarified even in that judgment that no other grounds are dealt with and that this Court has not gone into the merits or demerits of the allegations or the objections stated by the committee to the allegations made against it. RP417/09 -: 2 :- 2.This review petition is filed by the writ petitioner on two grounds. 3.Firstly, it is contended that though this Court noticed the writ petitioner's contention that the first respondent was duty bound to proceed under Rule 66(5) of the Kerala Co-operative Societies Rules, 1969 rather than take action under Section 32 even in the light of Section 65(6) of the Act, that plea has not been considered. 4.The aforesaid plea is one that could be raised in opposition to a notice under Section 32. Having left open all issues relatable to the merits of the matter, there was no need for this Court to consider the issue relatable to that plea of the petitioner. Such plea in defence to the supersession proceedings also stands left open by the judgment sought to be reviewed. There is, therefore, no error apparent on the face of the record, in that regard. RP417/09 -: 3 :- 5.The second ground raised seeking review is that, it having been held that proceedings under Section 32 is quasi judicial and the person who heard the parties ought to pass the order, it ought to have been further held that the proceedings are vitiated from its very inception; that is, from the very drawing up and issuance of the pre-decisional notice. It is argued on behalf of the petitioner that the Registrar is “a person” in terms of Section 3(1) of the Act. The plea is that the word “person” means a particular individual and cannot, therefore, take the concept of an institution and the formulation of opinion to act under Section 32 ought to be by one person and the same individual has to decide on the objections raised. 6.Sub-section 2 of Section 3 provides that the Government may by general or special order confer on any person all or any of the powers of the Registrar under the Act. Therefore, once the power of the Registrar is conferred by general or RP417/09 -: 4 :- special order, all such persons on whom such power is conferred, exercise the powers of the Registrar, which includes the power to initiate action in terms of Section 32 of the Act. The question, therefore, would be only as to whether the formulation of an opinion for the purpose of issuing a pre-decisional notice on specified grounds relatable to Section 32(1) could be done by one person and the rendition of the decision following such consideration could be done by yet another. Pertinently, it needs to be noted that the judgment sought to be reviewed is rendered on the fundamental principle that in instances of hearings which involve live questions of sifting, weighing and appreciation of evidence tendered, the lis has to be decided by the person who heard the arguments. This is all the more so because, such a decision-making process, as noticed in paragraph 18 of the judgment sought to be reviewed following Marico Industries Ltd., 2003 (1) KLT 956, is not a decision exclusively of the head or heart and it has to be one of both. The RP417/09 -: 5 :- process of arriving at the satisfaction that the committee has conducted itself in any among the manners enumerated in clauses (a) to (d) of sub- section 1 of Section 32 need not necessarily lead to the conclusion that it, without fail, has to be superseded. This is why, while the Registrar is conferred with the authority to supersede without pre-decisional hearing, the committee could be given the opportunity to state objections against the proposed supersession. In cases where the Registrar proceeds to give an opportunity of pre-decisional hearing to the committee to state its objections, he cannot then start the hearing with any pre-conceived notion as to the guilt of the committee as regards the allegations made against it. It is an essential feature of fair play, inbuilt among the fundamentals of natural justice, that bias in any form, including subject matter bias or any pre- conceived determination or opinion, ought not to weigh with the authority who hears. If it does, that will result in forking the process of RP417/09 -: 6 :- assimilation of the defence tendered. This would, undoubtedly, taint the judicious mind of the adjudicator. In matters relating to Section 32, when a committee states its objections and is given an opportunity of hearing, law would not presume that the Registrar hears the objections after having concluded for himself, to supersede. This, therefore, shows that in cases where a notice is given affording opportunity to state objections, the formulation of the “satisfaction” by the Registrar comes to a standstill and the application of mind by the person who hears the committee on its objections, namely, the Registrar, would start, untrammelled by whatever conclusion or satisfaction was arrived at before issuing the notice. Therefore, the person who hears and considers the objections of the committee does not get tied down to the conclusions or satisfaction arrived at before issuing the notice giving opportunity to the committee to state its objections. Hence, in cases where opportunity to state objections is RP417/09 -: 7 :- given, it is unnecessary that the same person who was satisfied that any among the grounds in clauses (a) to (d) of sub-section 1 of Section 32 exists and had issued the notice giving opportunity to the committee to state its objections, should himself hear the committee on its objections; or as a necessary corollary, the entire proceedings call for being rendered void necessitating a person exercising the powers of the Registrar to start the exercise de novo from the stage of consideration of the files even before issuing any notice giving opportunity to the committee to state objections. It was hence that it was stated in the last paragraph of the judgment sought to be reviewed that the first respondent could proceed with hearing de novo following a notice that may be issued to those entitled to be heard and the proceedings shall commence from the state at which the parties stood on the date of issuance of notice that led to the hearing of the petitioner by Sri.Omanakuttan (the officer who passed the order RP417/09 -: 8 :- that was impugned in the writ petition). For the aforesaid reasons, I do not find any error apparent on the face of the record or any other ground warranting review of judgment under Article 226 of the Constitution of India. The review petition fails. The same is accordingly dismissed. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/250509