IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 W.A.No. 1239 of 2009 --------------------------------------------- AGAINST THE JUDGEMENT IN WPC.2636/2009 Dated 27/05/2009 .................... APPELLANT//RESPONDENT IN WPC.: ----------------------- THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENEAL), MALAPPURAM. BY SPL. GOVERNMENT PLEADER SMT. ANEETHA RESPONDENT// PETITIONER IN WPCp: ------------------------ P.KRISHAN NAIR,, PRESIDENT MANAGING COMMITTEE, TIRUR CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON 02/07/2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------------ W.A. No.1239 of 2009 ------------------------------------ Dated, this the 2nd day of July, 2009 JUDGMENT Balakrishnan Nair, J. The point that arises for consideration in this writ appeal is, whether this court can grant stay of implementation of an order that is going to be passed by the statutory authority. 2. The brief facts of the case are the following: The Joint Registrar of Co-operative Societies (General), Malappuram, the respondent in the writ petition, is the appellant. The respondent herein was the writ petitioner, who was the President of the Managing Committee of Tirur Co-operative Agricultural and Rural Development Bank, Tirur, Malappuram District. The writ petition was filed by him challenging Ext.P18 order dated 16.1.2009 of the appellant superseding the managing committee of the respondent- Society, under Section 32 of the Kerala Co-operative Societies W.A. No.1239/09 - 2 - Act, (hereinafter referred to as, “the Act”). The impugned order was preceded by Ext.P6 show cause notice issued under Section 32 of the Act. The Writ Petition (C) No.26079/08 filed by the respondent challenging that notice was already pending before this Court, when the present writ petition was filed. 3. After hearing both sides, learned Single Judge found that Ext.P18 order was issued in violation of the principles of natural justice inasmuch as the principle “he who heard must decide/he who decides must hear” was violated. The managing committee members were heard by one officer and the order of supersession was passed by his successor-in-office. So, the learned Single Judge rightly set aside the order, as the decision superseding the Managing Committee under Section 32 of the Act being a decision rendered on subjective satisfaction, as held by this Court in Jose Kuttiyani v. Joint Registrar of Co-operative Societies, AIR 1982 Ker. 12, lack of hearing by the decision maker will prejudice the committee members. But, the learned Single Judge after quashing the order added, “It is directed that if the order to be passed is adverse to the W.A. No.1239/09 - 3 - petitioner, the same shall be served on the petitioner and shall be kept in abeyance for a period of two weeks from the date of service of that order”. The appellant is aggrieved by the above direction in the judgment. The learned Single Judge issued the above direction taking into account Exts.P8 and P9 interim orders passed by this court in WP(C) No.26079/08. Ext.P8 was an interim order dated 29.8.2008 directing not to pass any final order pursuant to Ext.P6 show cause notice. Ext.P9 is an interim order dated 7.10.2008 which permits the Joint Registrar to pass final order pursuant to Ext.P6 show cause notice, but directs not to give effect to it without obtaining orders from this court. 4. Learned Special Government Pleader, Smt.Aneetha, submitted that the above quoted portion of the judgment under appeal is unsustainable in law. This Court has no jurisdiction to pass such orders, it is contended. Sri.George Poonthottam, learned counsel for the respondent, submitted that this Court has powers to pass such orders in extreme cases and in support of his submission, reliance was placed on the decision of this Court in Narayanan Nair v. W.A. No.1239/09 - 4 - Vaikom Palliprathusserry Service Co - operative Bank , 2003 (2) KLT 44. The relevant portion of the said judgment reads as follows: “3. Learned counsel for the appellant submits that merely because learned counsel for the petitioners submitted that there was every likelyhood (sic. likelihood) of an order being passed against the petitioners and an administrator being appointed so as to take over the administration of the society without affording an effective opportunity to the petitioners for challenging the order in appropriate proceedings the learned single Judge should not have directed the Joint Registrar to keep his order in abeyance for a period of three weeks from the date of communication of the order to the petitioners. Learned counsel further submits that the fact that similar direction was given in other cases was also no justification or ground for giving such a direction in the Original Petition. According to the learned counsel, against an order passed by the Joint Registrar under S.32 of the Kerala Co-operative Societies Act a statutory appeal is provided under S.83(1)(j) of the said Act before the Government. The Government as appellate authority has the power to stay the order impugned in the appeal. Hence, in the normal course the parties should be left to avail of the statutory W.A. No.1239/09 - 5 - remedies available to them and the High Court should not derail the procedure contemplated under the statute by directing the statutory authority not to implement the order passed by it. We find force in the above submissions of the learned counsel for the appellant. We are of the view that, unless there are special circumstances which would indicate that the authorities will not act bona fide and fairly and will deliberately delay the communication of the order of supersession so that the members of the committee will not get an opportunity to file appeal and seek stay of the order before the Administrator takes charge, this Court will not be justified in exercising the power under Art.226 of the Constitution to direct the statutory authority not to implement its order even for a limited period. In the absence of such special circumstances, the court should leave the matter to be dealt with by the statutory authorities in accordance with the provisions of the statute. Even if special circumstances exist the court should refer to such special circumstances and record its satisfaction about the need for issuing a direction not to implement the order of the statutory authority passed under S.32 of the Act. A mere apprehension of the members of the committee that the order of the Joint Registrar is likely to be against the committee or that the Administrator W.A. No.1239/09 - 6 - may take charge of the management of the society before the superceded committee files appeal and seeks stay, is not a sufficient or valid ground or justification for directing the Joint Registrar not to implement his order under S.32 of the Act.”. 5. We considered the rival submissions addressed by the learned counsel appearing on both sides. For deciding whether this Court has jurisdiction to issue the direction impugned in this case, we will first refer to the principles governing the issue of writs by this court. This court will issue a writ of mandamus to the appellant, if the respondent has got a right to have the order passed by the appellant kept in abeyance for two weeks and the appellant owes a corresponding duty to him. The appellant has failed to bring to our notice any statutory provision which confers a right on him to have the order, passed under Section 32 of the Act, kept in abeyance for two weeks. In this context, it is apposite to quote the words of the Hon'ble Supreme Court in State of Kerala v. Lekshmikutty, (1986) 4 SCC 632, which read as follows: W.A. No.1239/09 - 7 - “It is well settled that a writ of mandamus is not a writ of course or a writ of right, but is as a rule discretionary. There must be a judicially enforceable right for the enforcement of which, a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the court will only enforce the performance of statutory duties by public bodies on an application of a person who can show that he has himself a legal right to insist on such performance...... The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus.”. (emphasis supplied) 6. In this case, we find that none of the provisions of the Co-operative Societies Act mandates that the appellant shall keep in abeyance an order passed by him for a period of two weeks after serving the same on the respondent. The respondent, as stated earlier, does not have any right conferred by any statutory provision, to claim such a relief. Therefore, this Court has no jurisdiction under Article 226 of the Constitution of India to direct the appellant to keep in abeyance the order to be passed by him under Section 32 of the Act for a period of two weeks. W.A. No.1239/09 - 8 - 7. This Court has power to issue a writ of certiorari quashing the order passed by the appellant, provided the order is suffering from any jurisdictional error, as the said concept is understood in Administrative Law. If the appellant has acted in violation of the principles of natural justice, or has taken into account irrelevant matters or failed to take into account relevant matters, or misdirected himself in law, then they are some of the grounds which will make the order of the appellant outside his jurisdiction, and therefore, void. When an application for certiorari is made before this court, if it is felt that the applicant has a strong prima facie case, and the implementation of the impugned order will cause irreparable injury or hardship, this court may pass an interim order. 8. While granting interim orders, we feel that we should be guided by the principles laid down by the Apex Court in Assistant Collector of Central Excise v. Dunlop India Ltd. (1985) 1 SCC 260. In this case, even before passing the order by the appellant, this court has decided to grant stay of that order for a period of two weeks even without any W.A. No.1239/09 - 9 - challenge to it before this Court and even without seeing that order. In this context, we will refer to the decision of the Apex Court in Samarias Trading Co. Pvt. Ltd. v. S.Samuel, (1984) 4 SCC 666, wherein the Apex Court came down heavily on the practice of the Calcutta High Court granting stay of an order, on the mention of a counsel for the party before the Court that he intends to file a writ petition against that order. We feel that, this Court has no power to grant stay of an order which is yet to be passed. We notice that this Court is entertaining writ petitions against notices. This Court has definitely power to do that, provided the notice is issued without jurisdiction. If it is found that the notice is ultra vires of the provisions of the Act, this Court can quash the notice and issue a writ of prohibition against the authority concerned not to proceed further in the matter. But, if the allegations in the notice are unrebutted, a case is made out for supersession, this Court is normally not justified in entertaining any challenge against such a notice and grant stay of the same or grant stay of the order that may be passed pursuant to the notice. Further, if the order of supersession is bad, this Court W.A. No.1239/09 - 10 - has ample powers to stay that order and issue further directions in a writ petition challenging the same. Therefore, it is unnecessary for this court to undertake the exercise of granting anticipatory stay and give room for criticism that this Court is acting without jurisdiction. 9. The reason given by the learned Single Judge for granting the interim order, that is, passing of Exts.P8 and P9 order, in the connected petition challenging the show cause notice, is not a valid ground for granting the impugned direction in the judgment under appeal. Learned counsel for the respondent pointed out that this case will fall under special circumstances pointed out by the Division Bench of this Court in Narayanan Nair's case (supra). We feel that the said decision is essentially a decision against the respondent. Further, we notice that it was a decision rendered in a writ appeal, which has become infructuous. In other words, the point dealt with did not arise for decision in that case. So, the observations in the said judgment are obiter dicta and they cannot be taken as overriding the fundamental principles W.A. No.1239/09 - 11 - governing the issuance of writ of mandamus and writ of certiorari by this Court. The Apex Court has time and again reminded the High Courts that, they should always follow the fundamental principles governing issuance of various writs while exercising their powers under Article 226 of the Constitution of India. In this context, it is apposite to quote the words of the Apex Court in Union of India v. Upendra Singh, (1994) 3 SCC 357, which read as follows: “It is true that a High Court acting under Art.226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view, as observed by this Court in T.C.Basappa v. T.Nagappa. It was observed by Mukherjea, J. speaking for the Constitution Bench: “The language used in Arts.32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of 'habeas corpus, mandamus, quo warranto, prohibition and certiorari' as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the W.A. No.1239/09 - 12 - express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English Law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law”. If we do not keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law, the exercise of jurisdiction becomes rudderless and unguided; it tends to become arbitrary and capricious. There will be no uniformity of approach and there will be the danger of the jurisdiction becoming personalised. The parameters of jurisdiction would vary from Judge to Judge and from Court to Court. (Some say, this has already happened.) Law does advance. Jurisprudence does undoubtedly develop with the passage of time, but not by forgetting the fundamentals. You have to build upon the existing foundations and not by abandoning them. It leads to confusion; it does not assist in coherence in thought or action”.” W.A. No.1239/09 - 13 - In view of the above principles, the impugned direction of the learned Single Judge in the judgment under appeal is vacated and the writ appeal is allowed. Sd/- K. BALAKRISHNAN NAIR, JUDGE. Sd/- C.T. RAVIKUMAR, JUDGE. DK. (True copy)