IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 20245 of 2007(I) ------------------------------------- PETITIONER: ------------------ K.L.POULOSE, PRESIDENT, PULPALLY SERVICE CO-OPERATIVE BANK LTD. NO.10153, WAYANAD DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS: ----------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), WAYANAD. 2. PULPALLY SERVICE CO-OPERATIVE BANK LTD. NO.10153, WAYANAD DISTRICT, REPRESENTED BY THE SECRETARY. 3. THE PART TIME ADMINISTRATOR, PULPALLY SERVICE CO-OPERATIVE BANK LTD.NO.10153, WAYANAD DISTRICT. *ADDL. RESPONDENT THE WAYANAD DISTRICT CO- OPERATIVE BANK, REP.BY ITS GENERAL MANAGER IS IMPLEADED AS ADDL. RESPONDENT BY ORDER DT. 25.2.2008 IN WPC. 20245/2007. R2 BY ADV. SRI.P.N.MOHANAN SPL. GOVERNMENT PLEADER (CO-OPERATIVE) SMT.A.G.ANEETHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2008, THE COURT ON 09/06/2008 DELIVERED THE FOLLOWING: W.P.(C) NO.20245/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE COMMUNICATION NO.CRP/3268/04(2) DT. 2.5.07. EXT.P2:- COPY OF THE COMMUNICATION NO.C.G.(2) 24520/2006 DT. 5.3.2007. EXT.P3:- COPY OF THE COMMUNICATION NO.CRP/3268/07 DT. 10.5.2007. EXT.P4:- COPY OF THE REPLY GIVEN BY THE PETITIONER. EXT.P5:- COPY OF THE NOTICE NO.CRP/3268/04 DT. 31.5.2007. EXT.P6:- COPY OF THE REPLY GIVEN BY THE PETITIONER DT. 11.6.2007. EXT.P7:- COPY OF THE ORDER NO.CRP/3268/04 DT. 22.6.2007. /TRUE COPY/ P.S. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.20245 of 2007-I = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of June, 2008. JUDGMENT 1. Petitioner challenges action under Section 32 of the Kerala Co-operative Societies Act, 1969, whereby the then committee of the second respondent headed by the petitioner as President was superseded. It is also prayed that it be declared that Ext.P3 is not a direction that could be issued under Section 66(5) of the Act. The petitioner contends that Ext.P7 supersession order is a result of colourable exercise of power and lacks the legal requirements in terms of Section 32 of the Act. It is contended that the notice was only to show cause and no opportunity of hearing was appropriately extended. The procedure adopted in consulting the financing bank and the Circle Co-operative Union is also challenged. Fundamentally, it is further contended that the supersession is based on an allegation of WP(C)20245/2007 -: 2 :- disobedience of a direction which was incapable of compliance in as much as the committee was called upon to ensure repayment of a very huge amount to the Government within a short period and within the parameters of Section 32, it is a case where it has to be held that there is no persistent default or negligence in the performance of duties and that there is no wilful disobedience or failure to comply with any orders or directions. The decisions of this Court in Rajagopalan Nair v. State of Kerala [1995 (2) KLT 184] and Ellakkal Service Co- op. Bank v. State of Kerala [1997 (2) KLT 85] are pressed into service in support of the contention of the petitioner. 2. A counter affidavit is placed on record by the first respondent, supporting the impugned decision. The third respondent has also filed a counter affidavit. Additional fourth respondent was impleaded in view of some of the contentions and an affidavit has been placed on record by that financing bank, which, among other things, shows that due credit has been given into the account of WP(C)20245/2007 -: 3 :- the society, for such amounts as were provided as the interest relief, sanctioned by the Government under the Agricultural Debt Relief Scheme. 3. As per a report dated 25-1-2007, the first respondent informed the Registrar of Co-operative Societies that in taking the benefit of the Kerala Agricultural Debt Relief Scheme, the society had included non-agricultural transactions also, which were ineligible, and thereby unlawfully, obtained amounts from the Government, in excess of what was available as agricultural debt reliefs. Accordingly, the society is duty bound to return that fund, by making remittance to the Treasury under the head “Recoveries of over payments”. Following that, Ext.P2 letter was issued on 5-3- 2007, by the Registrar to the Secretary of the society, requiring such repayment. This was followed by further action as per Ext.P1, nearly two months thereafter, by the first respondent calling upon the society to make remittance of the amount which was obtained by the society in violation of the orders and circulars of the WP(C)20245/2007 -: 4 :- Registrar. Following that, on 10-5-2007, on the basis of enquiry report, Ext.P3 was issued under Section 66(5), directing that the remaining amount of Rs.1,20,00,000/- be deposited. Since that amount was not deposited, Ext.P5, the impugned notice under Section 32 was issued. Ext.P6 reply thereto was considered and the impugned decision Ext.P7 has been taken superseding the committee in exercise of Section 32 of the Act. Section 65 enquiry report is dated 13-4-2007 and the direction under Section 66(5) is issued on 10-5-2007 as per Ext.P3. Accordingly, it is argued on behalf of the petitioner that, having regard to the amount involved, it was wholly inappropriate that a notice was issued under Section 32 on 31-5-2007 since it was humanly impossible to ensure repayment of such an amount, within that short time. However, it needs to be noticed that the financing bank was also consulted and the fact remains that necessary conclusions were arrived at by the first respondent in Ext.P7 overruling Ext.P6 objections, thereby holding that the directions contained in Ext.P3 were not complied with. Adverting to the plea that WP(C)20245/2007 -: 5 :- Ext.P3 is not an exercise with the statutory support of Section 66(5), all that needs to be looked into in a writ petition under Article 226 of the Constitution is as to whether the same has been issued without any jurisdictional foundation. Focusing on Ext.P3, it can be noticed that the over-drawals by the society under the Debt Relief Scheme is a matter about which conclusions have been arrived at on the basis of documents. The first respondent cannot, therefore, be found fault with in having concluded in Ext.P5 that there is not much of a dispute for the society that amounts were due to be returned. On the whole, the impugned Ext.P7, as also Ext.P3, cannot be treated as issued in violation of Section 32 or in total lack of jurisdiction under Section 66(5) respectively. Regarding the question whether the findings in Ext.P3 are sustainable on the basis of intricate details regarding the quantum of amount etc., this Court would refrain from going into, particularly, when the primary concern in this case is only judicial review of the action of supersession. Hence, leaving open the correctness of the total WP(C)20245/2007 -: 6 :- amount determined for repayment, going by the records, it cannot but be held that there is abundant material to hold that amounts were due from the society on account of over-drawals under the Debt Relief Scheme by including transactions which were not relatable to agricultural loans/debts. Therefore, Ext.P7 cannot be assailed as illegal and Ext.P3 cannot be held to be one wholly without jurisdiction. For the aforesaid reasons, the writ petition fails. The same is accordingly dismissed. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/0706