IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 WP(C).No. 31261 of 2007(V) -------------------------- PETITIONER: ------------ CALICUT CITY SERVICE CO-OPERATIVE BANK LTD.NO.D.2777, PUTHIYARA, KOZHIKODE, REP. BY ITS SECRETARY. BY ADV. SRI.P.P.JACOB RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY SECRETARY TO CO-OPERATION (C) DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE SECRETARY, PANNIYANKARA SERVICE CO-OPERATIVE BANK LTD. NO.2964, KALLAI P.O., KOZHIKODE. 3. THE SECRETARY, CALICUT TOWN SERVICE CO-OPERATIVE BANK LTD.NO. D.2665, K.P.KESAVAMENON ROAD, KOZHIKODE-1. 4. THE SECRETARY, VENGERI SERVICE CO-OPERATIVE BANK LTD.NO.2714, VENGERI P.O., KOZHIKODE. 5. THE SECRETARY, CALICUT NORTH SERVICE CO-OPERATIVE BANK LTD.NO. LL 37, KARUVASSERI P.O., KOZHIKODE-10. 6. PUTHIYANGADI SERVICE CO-OPERATIVE BANK LTD., PUTHIYANGADI, KOZHIKODE, REP. BY ITS SECRETARY. 7. KOMMERI SERVICE CO-OPERATIVE BANK LTD., KOMMERI, KOZHIKODE, REP. BY ITS SECRETARY. R1 BY SR.GOVT. PLEADER SMT.ANU SIVARAMAN R2 TO R7 BY ADV. SRI.T.A.SHAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2008, ALONG WITH W.P(C).15621/08 & w/p(c).33536/07, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.31261/07 PETITIONER'S EXHIBITS: EXT.P1: TRUE PHOTOCOPY OF THE REGISTRATION CERTIFICATE OF THE PETITIONER. EXT.P2: TRUE COPY OF THE JUDGMENT IN O.P.20817/02 DATED 19.10.04. EXT.P3: TRUE COPY OF THE ORDER ISSUED BY THE GOVERNMENT DATED 9.5.06. EXT.P4: TRUE PHOTOCOPY OF THE STATEMENT SHOWING THE FINANCIAL POSITION OF THE PETITIONER. EXT.P5: TRUE COPY OF THE PRELIMINARY OBJECTION FILED BY PETITIONER DATED 4.8.07. EXT.P6: TRUE PHOTOCOPY OF THE APPEAL FILED BY RESPONDENTS 2 TO 5 DATED 4.11.06. EXT.P7: TRUE PHOTOCOPY OF THE AFFIDAVIT FILED BY SECOND RESPONDENT DATED 4.11.06 BEFORE THE FIRST RESPONDENT. EXT.P8: TRUE PHOTOCOPY OF THE REVISION PETITION DATED 4.11.06 FILED BY RESPONDENTS 6 & 7. EXT.P9: TRUE PHOTOCOPY OF THE DELAY PETITION FILED BY 6TH RESPONDENT DATED 4.11.06. EXT.P10: TRUE PHOTOOCPY OF THE JUDGMENT IN W.P(C).26385/07 DATED 5.9.07. EXT.P11: TRUE PHOTOCOPY OF THE PROCEEDING ISSUED BY FIRST RESPONDENT DATED 10.10.2007. EXT.P12: TRUE PHOTOOCPY OF THE LETTER DATED 19.10.2007 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).Nos.31261 & 33536 OF 2007 & 15621 OF 2008 ------------------------------------------- Dated this the 4th day of August, 2008 JUDGMENT “C.R.” Two among the captioned writ petitions are filed by a service co-operative Bank, hereinafter, the “Bank” for short and the other one, by its President. 2. Four service co-operative banks filed O.P.No.20817/02, raising the issue that the Bank is not entitled to be registered. The plea was that there was a probable overlapping of the area of operation. Pending that writ petition, registration was granted to the Bank and accordingly, by judgment dated 19.10.2004, this Court disposed of O.P.No.20817/02, recording that such order having been passed, the petitioners therein have to pursue the statutory remedy under Section 83 of the Kerala Co-operative Societies Act, 1969, hereinafter, 'the Act', for short. Accordingly, it was ordered that if the petitioners therein pursue such remedy before the appellate authority within a WPC.31261/07 & con. Cases. Page numbers period of one month from the date of the judgment, viz., 19.10.2004, the same shall be treated to have been filed in time and appropriate orders have to be passed in accordance with law, within a period of four months from the date of receipt of that appeal, with notice to the parties. 3. It is the admitted situation that no appeal was filed in terms of the aforesaid judgment. Going by the counter affidavit filed in all these matters, sworn to by the Under Secretary to Government in the Co-operative Department, an appeal and a revision petition were ultimately filed on 4.10.2006, along with applications to condone delay. 4. These writ petitions are filed challenging the entertainment of that appeal and revision and also seeking further intervention of this Court in the wake of the refusal of the statutory authority to accede to the request of the Bank for sanction of additional posts of Junior Clerk, such refusal being on the ground that the registration has been granted on the teeth of objectionable overlapping. WPC.31261/07 & con. Cases. Page numbers 5. The fundamental plea of the petitioners is that the appeal and revision are not within time and the petitioners in O.P.No.20817/02 had not obeyed the command in the judgment in that case by filing the appeal within a period of one month therefrom and that therefore, the appeal cannot be entertained at all. It is also contended that any objection to the registration of the Bank cannot be thereafter considered by the Government and even on 9.6.2006, the Government have addressed the Secretary and President of the Bank stating clearly that the Joint Registrar of Co-operative Societies (General), Kozhikode has reported that the Bank was registered after satisfying the conditions stipulated under Section 7 of the Act and that therefore, its registration is perfectly valid in law. It was also stated by the Government that on account of that, no exemption was required to be granted in support of such registration. 6. Per contra, learned counsel for respondents 2 to 7 points out that the appeal and revision filed by them are within the format of law and the Government have jurisdiction to condone the delay in filing the appeal. It is also argued ultimately that WPC.31261/07 & con. Cases. Page numbers the power of the Government is not confined to an appellate power and spreads over to a revisional power in terms of Section 87 of the Act and therefore, it would be against the interest of respondents 2 to 7 to conclude that the Government do not have the power to condone the delay in filing the appeal. Among respondents 2 to 7, persons who have filed O.P.No.20817/02 are only respondents 2 to 5 herein. Respondents 6 and 7 were not parties to O.P.No.20817/02. 7. Section 83 of the Act confers a right of appeal to other authorities. So much so, an appeal under Section 83 (1) of the Act ought to be filed within a period of 60 days from the date of the order or decision appealed against, going by Sub-section (2) of Section 83. That provision does not contain any power to condone delay. As held by the Apex Court in Takuru v. Tanaji [(1985) 3 SCC 590], and in L.S.Synthetics Ltd. v. Fairgrowth Financial Services Ltd. & another [(2004) 11 SCC 456], Section 5 of the Limitation Act would apply only to proceedings in court and not to appeals or applications before the bodies governed by statutes, as noticed by this Court in District WPC.31261/07 & con. Cases. Page numbers Execution Officer v. Abel [2006(2) KLT 758]. I may also notice in support of the said proposition, the decisions of this Court in Kerala Motor Transport Workers Welfare Fund Board v. Government of Kerala [2000 (1) KLT 608] and Prasad v. State of Kerala [1999 (2) KLT 531], laying down in categoric terms that appellate authorities, including the Government, do not have the power to condone delay. 8. Be that as it be, the counter affidavit placed on record, sworn to by the Under Secretary in the Co-operation Department, among other things, curiously states that the delay in filing the appeal and revision are condoned by the Government on 4.12.2006, but no formal orders condoning the delay have been issued. I notice this in the particular context that the petitioners herein had to file yet another writ petition, on which, a direction was issued by this Court, requiring the Government to issue the copy of the order which it purportedly issued on the application to condone delay. No copy of any such order was so issued. This obviously shows that there is no order, on record, condoning the delay. One wonders whether the WPC.31261/07 & con. Cases. Page numbers Government in a sovereign, socialist, democratic republic can function except by making its decisions available on the files. It cannot. The institutional decision of condoning delay in relation to an appeal filed before the Government cannot be kept in the vacuum or in the minds of the officers or whoever it may be, but has to be reflected in clear terms on the files. 9. Having regard to the position of law as noticed above, it has to be held that Section 83 does not contain any power, on the basis of which, the appellate authority, including the Government, could condone the delay in filing an appeal. 10. The benefit that accrued in favour of the petitioners in O.P.No.20817/02 was only that they could have filed the statutory appeal within a period of one month therefrom. This was granted obviously because the learned Judge had noticed that the petitioners therein had promptly came to this Court even before the registration was granted to the Bank and therefore, the intention was to preserve any right of appeal which the petitioners in O.P.No.20817/02 would have lost with WPC.31261/07 & con. Cases. Page numbers the efflux of time. Such an enlargement of time by the writ court was not even utilised by the petitioners in that case. 11. On the basis of the aforesaid, I am clear in my mind that the impugned appeal has necessarily to be treated as one which cannot be entertained. Accordingly, all proceedings initiated on the appeal purported to have been filed by the private respondents herein before the Government, in relation to the registration of the Bank, will stand quashed by the force of this judgment. 12. On to the plea of the private respondents referable to Section 87, it needs to be noticed that whenever an application is preferred invoking the revisional jurisdiction, it has to be filed within a period of three months, going by the proviso to Sub Section (1) of Section 87 of the Act. So much so, applying the principle as enunciated above, the power to entertain such application does not include the power to condone the delay in instituting an application within the period prescribed and therefore, the revision petition submitted by the private WPC.31261/07 & con. Cases. Page numbers respondents challenging the registration of the Bank as a co- operative bank also has to go. The proceedings thereon will also stand quashed by the force of this judgment. 13. In furtherance of the decisions above, it is directed that the request of the petitioners for sanctioning of additional posts of Junior Clerks shall be take up, considered and disposed of in accordance with law by the competent authority, at the earliest, at any rate, within a period of three weeks from the date of receipt of a copy of this judgment. The writ petitions are ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.4/8.