IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 WP(C).No. 30933 of 2010(N) -------------------------------------- PETITIONER(S): ---------------------- K.JAYAVARMA, ADVOCATE, PRESIDENT, THIRUVALLA EAST CO-OPERATIVE BANK LTD. NO.3260, ERAVIPEROOR. BY SRI.P.RAVINDRAN, SENIOR ADVOCATE ADV. SRI.ANIL SIVARAMAN SMT.APARNA RAJAN RESPONDENT(S): ------------------------ 1. THE SUPERINTENDENT OF POLICE, P.O. PATHANAMTHITTA, 689645. 2. SUB INSPECTOR OF POLICE, P.O.THIRUVALLA, 689101. 3. N.RAJEEV, GOKULAM, VALLAMKULAM, P.O.ERAVIPEROOR, 689542 4. GIJI MATHEW, KANICHUKATTU KUZHYUZHATHIL, PURAMATTOM P.O. 689543. 5. GIJI GEORGE, MEPRATHU CHARIVUKALAYIL, P.O.KOZHIMALA, 689541. 6. GEORGE KURUVILA, SANKARAMANGALATHU, THELLIYIL, P.O.ERAVIPEROOR, 689542. 7. E.A.ABRAHAM, THEKKANALIL, KUNNAMTHANAM P.O., MALLAPPILLY, PATHANAMTHITTA, 689645. WP(C)NO.30933/2010-N * ADDL. R8 IMPLEADED * ADDL. R8 : K.K.THAMPAN, ADMINISTRATOR (DEPARTMENT REGISTRAR) THIRUVALLA, EAST CO-OPERATIVE BANK LTD, NO.3260, ERAVIPEROOR, 689542 IS IMPLEADED AS ADDL.R8 AS PER ORDER DT. 11/10/2010 IN IA. 14165/10. R7 BY ADV. SRI.S.SUBHASH CHAND R6 & R7 BY SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ R3 BY SRI.T.P.PRADEEP R4 BY SRI.S.SUBHASH CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 30933/2010-N APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE JUDGMENT IN WP(C) NO.27925/07 DATED 27/8/09. P2 COPY OF THE NOTIFICATION DATED 23/09/09. P3 COPY OF THE INTERIM ORDER IN WP(C0 NO.29627/09 DATED 23/10/2009. P4 COPY OF THE JUDGMENT IN WP(C) NO.29627/09 DATED 22/1/10. P5 COPY OF THE ORDER OF THE SUPREME COPURT IN SLP 15412-15413/10. P6 COPY OF THE ORDER OF THE JOINT REGISTRAT DATED 4/10/10. P7 COPY OF THE COMPLAINT DATED 5/10/10. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.JUDGE sts K.M.JOSEPH & M.C.HARI RANI, JJ. * * * * * * * * * * * * * W.P.C.No.30933 of 2010 ---------------------------------------- Dated this the 26th day of October 2010 J U D G M E N T K.M.JOSEPH,J The petitioners have approached this Court seeking the following reliefs: i) issue a writ in the nature of mandamus commanding the respondents 1 and 2 to afford adequate and effective police protection for the functioning of the Board of Directors in the event of any obstruction by respondents 3 to 7. ii) issue a writ in the nature of mandamus commanding the respondents 1 and 2 to afford effective protection for the smooth functioning of the Thiruvalla East Co-operative Bank Limited without let or hindrance from respondents 3 to 7 or their men. iii) issue any other such writ, order or direction as this Hon'ble Court may deem fit and necessary in order to meet the ends of justice on the facts and in the circumstances of the instant case; W.P.C.No.30933 of 2010 2 2. Briefly put, the case of the petitioner is as follows: 3. The petitioner is the elected President of the Thiruvalla East Co-operative Bank Ltd, which is an Urban Co- operative Bank engaged in banking business. It is registered as a Co-operative society. The term of the Committee was to expire in the year 2009. In the election, the candidates sponsored by the United Democratic Front were victorious. The Board of Directors with the petitioner as President assumed office. However, the Board of Directors was superseded and by Ext.P1 judgment, the order of supersession was quashed. This order, though challenged in appeal, was not interfered with by the Division Bench. Election was scheduled and it was not to the liking of the C.P.I (M). The Election Commission postponed the election. The Board of Directors approached this Court and by Ext.P3 interim order in W.P.C.No.29627/2009, the learned Single Judge ordered conduct of election. The said order was challenged before the Division Bench. But the Division Bench was not inclined to interfere. The matter reached the Supreme Court. The Supreme Court declined to interfere and the S.L.P was dismissed. Writ Appeal against Ext.P3 interim order was W.P.C.No.30933 of 2010 3 finally heard by the Division Bench. The Division Bench took the view that the percentage of voting was poor and disposed of the appeal directing re-poll. Re-poll was ordered to be conducted with the elected body in office (Ext.P4 judgment). This order was challenged by certain elected members on the ground that the order was rendered without an opportunity for being heard. S.L.P was finally disposed of directing polling to be held within a period of six months. The Government was required to appoint an Administrator to oversee the administration of the Board of Directors (Ext.P5). Even though the direction was to the Government, the Joint Registrar, by Ext.P6 order, appointed an Administrator. The Board of Directors met on 05/10/2010 to discuss various businesses of the bank. Perusal of the order of the Apex Court was one of the items of the agenda. At about 11.20 a.m, a group of persons under the leadership of respondents 3 to 7 stormed into to the Bank premises, entered the President's room and ransacked the room. The petitioner as well as other Directors, who were present, were manhandled. Attempts to resist invited more assaults. Customers as well as staff of the Bank were threatened with physical harm. The W.P.C.No.30933 of 2010 4 petitioner filed Ext.P7 complaint. The police reached at about 12 p.m; but did not do anything to diffuse the situation. It is the case of the petitioner that the functioning of the Bank has been brought to a stand still. 4. Counter affidavits have been filed by respondents 5 and 6 as also the 7th respondent. In the counter affidavit of the 7th respondent, Exts.R7(a) to Ext.R7(n), documents are produced. We have heard the learned senior counsel for the petitioner Adv.Sri.P.Ravindran, the learned senior counsel for respondents 5 and 6 Adv.Sri.K.Ram Kumar, the learned counsel for the 7th respondent Adv.Sri.S.Subhash Chand as also Adv.Sri.T.P.Pradeep the learned counsel for the 3rd and 4th respondent. The learned counsel for the petitioner reiterates the submissions contained in the writ petition. It is his contention that a reading of Ext.P4 judgment and Ext.P5 order passed by the Apex Court makes it clear that the Board of Directors has been permitted to continue subject to the condition that they cannot take any policy decision and going by the order of the Supreme Court, their functioning has to be overseen by the Administrator to be appointed by the Government. He would W.P.C.No.30933 of 2010 5 contend that the Managing Committee will abide by the terms of these orders and that the party respondents have no right to obstruct the functioning of the Board of Directors which has been permitted by the Division Bench of this Court as already noted. 5. Per contra, the learned senior counsel for respondents 5 and 6 Adv.Sri.K.Ramkumar would submit that the complaint filed by the petitioner before the police is on 05/10/2010 and the writ petition is also filed on 05/10/2010. He would further point out that the petitioner is fully aware that the Administrator has been appointed and yet the writ petition is filed without impleading the Administrator. The motive is clearly questionable and by virtue of the conduct of the petitioner, the discretionary jurisdiction under Article 226 of the Constitution of India should not be exercised in favour of the petitioner. He would further contend that having regard to the terms of Ext.P4, the Division Bench which only directed polling to be done, it is inconceivable as to why the petitioner should be pressing the first prayer. He would contend that he has no objection in the second prayer being granted; but in the guise of the order which is sought by W.P.C.No.30933 of 2010 6 the petitioner by prayer No.1, what the petitioner seeks to achieve is to scuttle the implementation of the order passed by this Court as modified by the Apex Court. He would point out that, at any rate, the Board of Directors cannot take any policy decision and since polling is to be held, no earthly purpose would be achieved except collecting the sitting fees by the members. He would further point out that the Administrator must necessarily be involved if at all and what the petitioner seeks to achieve is to oust the Administrator and to carry out the administration all by themselves. These are the submissions of the learned counsel for respondents 5 and 6. 6. The learned counsel for the 7th respondent would submit that various developments have taken place. He would impress upon us that after the Division Bench passed Ext.P4 judgment, certain persons, who were directors, approached this Court and filed a review petition and in that review petition, the Division bench has virtually modified the directions in Ext.P4 judgment. In other words, he took us through Ext.R7(f). We extract the order passed by the Division Bench i.e. Ext.R7(f). W.P.C.No.30933 of 2010 7 “Connected Review Petitions are filed to review one and the same judgment whereunder we directed holding of election to the Board of the 8th respondent-Bank in the Review Petitions. Review petitioners in R.P.No.212 of 2010 though were impleaded as additional respondents in the WPC, they were not issued notice. Since the review petitioners in other review petitions were not parties in the Writ Appeals, their grievance is that they were not heard before disposal of the Writ Appeals. After hearing counsel appearing for the review petitioners, and the Government Pleader, we do not find any merit in the Review Petitions to modify the judgment directing election to be held to the Board of the Bank. However, we feel reasonable time can be granted to the Bank to issue photo identification cards to members who have not obtained the same so far, so that election is held consistent with Rule 35A(5) of the Kerala Co-operative Societies Rules and the alternate documents referred to in the judgment, like Pan Card, Passport, etc. need not be produced. We direct the Bank to complete the process of issuing photo identification cards within a period of one month from now. Those members who have not obtained photo identification card should apply W.P.C.No.30933 of 2010 8 for the same in accordance with the norms. The Joint Registrar will supervise the receipt of applications for photo identification cards, issue of photo identification cards to members, and if there is any dispute between the Bank and the member concerned, the Joint Registrar will settle the matter through his orders. The Bank will intimate to the Election Commission, the date, time and the venue for election, within a period of three weeks from now, so that election is held after issue of photo identification cards to all eligible members. Members who produce photo identification cards only should be allowed to vote.” Review Petitions are disposed of modifying judgment as above. He would point out that against Ext.P4 judgment, an SLP has been filed and that has been dismissed as is evident from Ext.R7 (e). As against the disposal of Ext.R7(f), the petitioners therein carried the matter in SLP before the Apex Court. They obtained an interim order and Ext.R7(g) order of the Apex Court would show that in the light of the fact that Ext.R7(e) had been passed dismissing a similar SLP, the Apex Court had vacated the interim order. It is not in dispute that it is the very same SLP which has W.P.C.No.30933 of 2010 9 been finally disposed of by Ext.P5. 7. Pointing out the directions in the judgment passed in the review petition, it is his contention that it is no longer open to the petitioner to contend that the Board of Directors could continue in terms of the original directions contained in Ext.P4 judgment. In other words, it is his contention that having regard to the various directions which have been issued in Ext.R7(f), the only meaningful way to interpret it is that the Board of Directors could not continue. It is also pointed out that Ext.R7(f) is not produced. The petitioner is not a person who would be entitled in accordance with the general principles governing the issues of writ namely the concept of conduct of party to the reliefs sought by him. In this connection he points out Ext.R7(l) which is a copy of the F.I.R implicating the petitioner and others as accused in criminal conspiracy for dividing an amount of Rs.4,66,400/-. 8. More importantly he would contend that under the Co-operative Societies Act, an Administrator is contemplated under Section 32 and 33. He would draw our attention to Section 33 and point out that while it is open to the Government also to appoint an Administrator, appointment of the W.P.C.No.30933 of 2010 10 Administrator as contemplated by the order of the Apex Court is clearly incompatible with the existing committee continuing. In other words, his contention that the law does not provide for both the elected members of the Board and an Administrator to exist together. Therefore, he would contend that in the situation which arises out of the order passed by the Apex Court namely Ext.P5 and the position obtaining under the Co-operative Societies Act, it is for the petitioner to seek clarification of the decision of the Apex Court. In this connection, he would point out that the provisions under Section 66 clothe the authority with ample power to supervise the functioning of the Board of Directors and therefore particularly having regard to the fact that the Apex Court has directed to conduct fresh elections it only means that the Board of Directors headed by the petitioner stands ousted and it is only the Administrator who is entitled to administer the affairs of the Society. He would contend that proper way to interpret the order of the Apex Court is that the Managing Committee is to be treated as the Bank. 9. The learned Government Pleader, who also appears for the Administrator who was impleaded after the filing of the W.P.C.No.30933 of 2010 11 writ petition, would submit as follows: 10. It is his understanding that going by the directions of the Apex Court, the Committee and the Administrator is to co- exist. But he would submit that the conduct of the petitioner is that the petitioner is not permitting the Administrator to effectively oversee the activities of the Board of Directors. He would point out in this regard that a meeting was scheduled to be held on 12/10/2010. A notice for the meeting was despatched at 5.40 p.m on 11/10/2010 and the notice was received by the Administrator only on 13/10/2010. He would further point out that the Administrator is not even been allowed to peruse the minutes and other records. 11. The learned senior Counsel for the petitioner Adv.Sri.P.Ravindran would, in reply, submit that it is not correct to say that the Board has not permitted the Administrator to peruse the records. He also denies the allegations made about notice being sent for meeting on 12/10/2010. He would further submit that the Board would co-operate with the Administrator and involve him in the matter as ordered by the Apex Court. In particular, he would submit that the notice of the meeting will be W.P.C.No.30933 of 2010 12 given to the Administrator three days in advance. 12. This writ petition is filed by the petitioner praying for police direction. The petitioner is the President of the Board which was elected into office. By Ext.P4 judgment, a Division Bench of this Court found that the election did not result in a large number of voters participating and ordered a repoll. However, the Bench also directed that the elected Board will continue to manage. This is further subject to the rider that the Board could not take any policy decisions. Against the order passed by this Court, an SLP was carried before the Apex Court and that came to be dismissed vide Ext.R7(e). Some of the members of the board of directors who were not parties preferred a review petition and that came to be disposed of by Ext.R7(f) judgment dated 08/04/2010. Against the said judgment, the petitioners therein preferred an SLP and therein Ext.R7(g) order was passed taking note of the fact that similar matter was dismissed. Interim order granted therein was vacated. It is the very same SLP that was finally disposed of by Ext.P5 judgment. Therefore the question to be considered is whether the petitioners are justified in coming to the Court W.P.C.No.30933 of 2010 13 seeking police protection on the ground that they are allowed to continue by the Division Bench of this Court in Ext.P4 judgment only subject to the condition that an Administrator should be appointed by the Government to oversee the functioning of the Board. 13. The main objection raised by Adv.Sri.Subhash Chand on behalf of respondents 4 and 7 is that under the provisions of the Co-operative Societies Act and Rules, an Administrator appointed under Sections 32 and 33 and a Board cannot continue together and if at all any clarification is required, it is for the petitioner to approach the Apex Court. 14. Ext.P4 judgment, in our view, is categoric because while it directed a repoll it also permitted the Board of Directors to continue. An SLP carried against the same is dismissed. It is true that some members of the Board of Directors, who were not parties to Ext.P4 judgment, preferred a review petition. But, a perusal of the judgment passed in the review petition would show that the Court did not find merit in the review petition as such. However, with regard to certain matters namely relating to the persons entitled to vote, certain directions were given. In W.P.C.No.30933 of 2010 14 our view, the judgment passed in the review petition may not have the effect of depriving the members of the Board of Directors of the right conferred under Ext.P4 judgment to continue subject to the condition that they will not have the right to take policy decisions. We are fortified for reason of the fact that the persons, who were aggrieved by the said judgment were members of the Board of Directors themselves, who took the matter before the Apex Court and it is in the said SLP that the Apex Court finally pronounced Ext.P5 order. As already noticed in Ext.P5 order, the Apex Court, while ordering a fresh election, directed that an Administrator should be appointed by the Government to oversee the functioning of the Board. This is the order passed in SLP filed by the members of the Board who were actually aggrieved by the order passed in the review petition wherein their contention was that the election could not have been interfered with. The wording of Ext.P5 order is fairly clear namely the Apex Court, in our view, permitted the Board to continue as what was permitted by the Division Bench in Ext.P4 judgment. But, at the same time, the Apex Court felt that it is necessary, in the interest of justice, that an Administrator be W.P.C.No.30933 of 2010 15 appointed for the purpose of overseeing the functioning of the Board. It may be true that the provisions of the Act as such may not strictly contemplate an Administrator co-existing with the Board of Directors. But, we cannot overlook that the Apex Court is clothed with powers under Article 142 of the Constitution of India and when the Administrator is appointed specifically to oversee the functioning of the Board, it can only mean that the Board and the Administrator have a role to play. The role of the Board, as we understand, is to carry on the activities as was contemplated by the Division Bench in Ext.P4 subject further to the condition that they cannot take any policy decisions. Under Article 144 of the Constitution, all members/authorities are bound to implement the orders of the Apex Court. Therefore the police authorities are also bound by the orders of the Apex Court. Therefore, we may not see much substance in the submission of the learned senior counsel for respondents 4 and 7 that it is not open to the petitioners to contend that the Board can continue even after the appointment of the Administrator. 15. We are also not impressed by the contention of the learned counsel for respondents 4 and 7 based on the Vigilance W.P.C.No.30933 of 2010 16 report. The Vigilance report was there even at the time of Ext.P4 judgment. No doubt it may not have been brought to the notice of the Court. We do not see how the vigilance report by itself can persuade us to deprive the benefit of Ext.P4 judgment as finally modified in Ext.P5 order of the Apex Court to the Board of Directors of which the petitioner is the President. Equally, in the view which we have taken namely the availability of powers under Article 142 of the Constitution of India, the appointment of the Administrator ordered by the Apex Court is not to be confused with the statutory power to appoint administrator under Section 32 and 33 of the Co-operative Societies Act and Rules. We are not impressed by the arguments based on Section 66 and here again, we must remind ourselves about the power under Article 142 of the Constitution of India. Undoubtedly, the Administrator has every right and power to oversee the functioning of the Board of Director. He has a right to be informed sufficiently in advance of the meetings of the Board of Directors. He can peruse any documents and registers of the Society for the purpose of overseeing the functioning of the Board of Directors. Needless to say, we make it clear that the W.P.C.No.30933 of 2010 17 Board of which the petitioner is the President, cannot take any policy decisions. 16. As far as the contention of Sr. Advocate Sri.K.Ramkumar, the learned counsel for respondents 5 and 6 is concerned, we are not much impressed by the contention based on non-impleading of the Administrator as such. It is true, ideally the petitioner could have impleaded the Administrator also; but we must remind ourselves that as pointed out by the learned senior counsel for the petitioner, the petitioner is not seeking any relief as against the Administrator. The petitioner has approached this Court feeling aggrieved by the inaction of the police authorities against the obstructionist path adopted by the party respondents. In the view which we have taken, certainly it is not open to the party respondents to obstruct the Board and for deciding that as such the function of the Administrator may not be necessary. It is no doubt true that the petitioner cannot extricate himself from the directions of the Apex Court in Ext.P5 order namely, interference of the Administrator by way of overseeing, cannot be avoided by the petitioner. It is true that the petitioner has filed the writ petition W.P.C.No.30933 of 2010 18 on 07/10/2010. The writ petition is actually moved on 08/10/2010. The petition was filed apparently only after the obstruction has taken place. In the nature of the apprehension entertained by the Board of Directors and probably feeling it futile, we see no reason to non-suit the petitioner for coming to this Court on 07/10/2010. There is a further contention taken by the learned Senior counsel Adv.Sri.K.Ram Kumar appearing for respondents 5 and 6 that in view of the direction given by Ext.P4, the petitioner should not be permitted to press the 1st prayer. To this, the answer of the learned senior counsel for the petitioner is that the petitioner is an Urban Bank which may have to take decisions which are not policy decisions and it is not open to the party respondents to obstruct the Board of Directors. They can take the decisions which are contemplated under Ext.P4 judgment. 17. If there are decisions to be taken by the Board of Directors within the contemplation of Ext.P4 judgment and as permitted in Ext.P5 order, it is open to the Board to meet and take decisions. In the same breadth, we make it clear that we should not be understood as permitting the petitioner to take any W.P.C.No.30933 of 2010 19 policy decision in the guise of this judgment. 18. This writ petition