IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 10099 of 2007(B) -------------------------------------- PETITIONERS: -------------------- 1. G.K.REGHUKUMAR, GOPALAKRISHNA BHAVANAM CHATHUKULAM P.O., PORUVAZHI, KOLLAM. 2. T.KOSHY, PARAPPURATH, CHATHAKULAM P.O. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, TRIVANDRUM. 2. PORUVAZHI SERVICE CO-OPERATIVE BANK LTD.NO.1132, CHATHAKULAM P.O., KOLLAM REPRESENTED BY ITS SECRETARY. 3. M.SABU, PRESIDENT, PORUVAZHI SERVICE CO-OPERATIVE BANK LTD.NO.1132, CHATHUKULAM P.O, QUILON DIST. 4. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KOLLAM. R1, R4 BY SR. GOVERNMENT PLEADER SMT.ANU SIVARAMAN R2 BY ADV. SRI.P.C.SASIDHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).10099/2007-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RESIGNATION LETTER DATED 07/11/2005. EXT.P2: COPY OF THE RESIGNATION LETTER DATED 08/11/2005. EXT.P3: COPY OF THE ORDER NO.CRP.6445/05 DATED 14/11/2005. EXT.P4: COPY OF THE AFFIDAVIT AND PETITION DATED 11/12/2005. EXT.P5: COPY OF THE JUDGMENT IN W.A. NO.221 OF 2006 DATED 03/02/2006. EXT.P6: COPY OF THE ORDER NO.CRP.6445/2005 DATED 25/02/2006. EXT.P7: COPY OF THE ORDER NO.CRP.6445/05 DATED 20/02/2006. EXT.P8: COPY OF THE GOVT. ORDER GO.Rt.139/07/COP. DATED 27/02/2007. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE JUDGMENT IN W.P.(C).NO.31769/2005 DATED 23/12/2005. // TRUE COPY // P.S. TO JUDGE Rs/ THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.10099 of 2007-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 24th day of July, 2008. JUDGMENT 1.The second respondent, a co-operative bank had a nine member committee elected on 30-11-2003. That committee assumed office on 3-12-2003. This means that at least by late September, 2008 necessary resolutions have to be drawn up for electing a new committee. 2.While the nine member committee was continuing in office as aforesaid, one of its members Sri.Thankappan Pillai died reducing the strength to eight. Thereafter, Sri.Viswambharan obtained employment abroad and he was not participating in the meetings of the committee. The third respondent tendered resignation from the WP(C)10099/2007 -: 2 :- committee. Thereafter, the petitioners also resigned from the committee. Treating the absence of Viswambharan as one that reduces the strength of the committee and in view of the demise of Thankappan Pillai and the resignations of the petitioners and the third respondent, an administrator was appointed invoking Rule 33 of the Kerala Co-operative Societies Rules, 1969. That was interfered with by this Court on a writ petition filed by Sri.Renosh Samuel, the then President of the society as per judgment reported as Renosh Samuel v. Joint Registrar [2006 (1) KLT 374]. In that, it was held that the mere absence of Viswambharan could not be treated as a case of absence from office as a member of the committee since there was no removal in terms of Rule 44(3) of the Rules. 3.After the aforesaid judgment, on 20-1-2006, the committee met to consider the resignation of the third respondent. The resignation was rejected because the third respondent stated that he was WP(C)10099/2007 -: 3 :- not pressing the resignation. Incidentally, Sri.Renosh Samuel stepped down as a President and continue to be a member conceding to the third respondent becoming the President. Issues arose between the petitioners and the third respondent regarding the resignation. This went up to the Government. The Government, ultimately, reversing the decision of the Joint Registrar, held that the resignation of the petitioners were accepted and the rejection of the resignation tendered by the third respondent was proper. 4.Though in Renosh Samuel (supra), particularly, in paragraph 14 thereof, the effect of Rule 38(4) of the KCS Rules was considered, later, by judgment in Nataraja Gownder S. v. Registrar and Dy. Director of Diary Development [ILR 2008(2) Kerala 361], it was held that the said rule, in so far as it makes a resignation dependent upon the acceptance by the committee, is ultra vires the Act and hence, void. On the support of that precedent, it is argued by the learned counsel WP(C)10099/2007 -: 4 :- for the petitioners that the effect of resignation is eo-instandi its making and there is no question of withdrawing a resignation and there was no room at all for the Government to conclude or for the committee to reject the resignation of the third respondent on his saying that he does not press his resignation. 5.Per contra, the learned counsel for the third respondent argued that the decision in Renosh Samuel is an inter partis judgment and is, therefore, res judicata on the issue in hand. It is contended that the manner in which Rule 38(4) is to be interpreted is concluded inter partis by paragraph 14 of that judgment and therefore, notwithstanding the later pronouncement of this Court in Nataraja Gownder (supra) that the said rule is ultra vires the statute, it is not open to the petitioners to sustain their case on the basis of that later decision. It is argued that the Government, while they decided the issue in hand, were bound to decide the matters on the WP(C)10099/2007 -: 5 :- basis of the inter partis judgment, Renosh Samuel and therefore, there is no legal infirmity or jurisdictional error or other vitiating element that would fall within the parameters of judicial review calling for exercise of authority under Article 226 of the Constitution. 6.The issues raised as of law are debatable and may require consideration, if I were to ultimately decide on that. But, with the passage of time, as already noticed in the opening paragraph of this judgment, elections are due to the committee of the society and on the extra-ordinary facts and circumstances of this case, if such election is pre-poned by putting the present committee in office and the petitioners 1 and 2 to continue as an administrative committee, ends of justice would be satisfied. This will be in the best interest of the affairs of the second respondent society. For the foregoing reasons, this writ petition is WP(C)10099/2007 -: 6 :- ordered as follows: i.By the force of this judgment, the fourth respondent shall constitute an administrative committee consisting of the third respondent, the other existing members of the elected committee and the petitioners, forthwith on receipt of a copy of this judgment. ii.The administrative committee as aforesaid shall draw up a resolution at the earliest fixing appropriate date for the election to the committee. iii.On the basis of the aforesaid resolution, the competent authority under the KCS Rules will do the needful to have the election conducted promptly so that a new elected committee can assume office. iv.It is further directed that no fresh WP(C)10099/2007 -: 7 :- members shall be admitted other than nominal members for the purpose of transactions, till the new elected committee comes into office. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/240708