IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 10254 of 2008(U) ------------------------------------------ PETITIONER(S): ------------------------ ELAMPAL SERVICE CO-OPERATIVE BANK LTD. NO.604, ELAMPAL P.O., PUNALOOR, REP.BY ITS SECRETARY. BY ADVS. MR.G.D.PANICKER, SMT.JEENA JOSEPH. RESPONDENT(S): --------------------------- 1. GOVT.OF KERALA REP.BY SECRETARY (CO-OPERATION (C) DEPARTMENT), KERALA SECRETARIAT, TRIVANDRUM. 2. JOINT SECRETARY CO-OPERATION (C) DEPARTMENT), GOVT. OF KERALA, KERALA SECRETARIAT, TRIVANDRUM. 3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM. 4. AVANEESWARAM SERVICE CO-OPERATIVE BANK LTD.NO. NO1847, REP.BY ITS SECRETARY KUNNIKODE P.O KOLLAM DIST. R1 TO R3 BY GOVERNMENT PLEADER MR. MOHAMMED HASHIM R4 BY ADV. SMT.I.SHEELA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.10254/2008 U APPENDIX PETITIONER'S EXHIBITS: P1: AN EXTRACT OF THE AMENDED BYELAW WHICH HAS BEEN APPROVED BY THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES. P2: AN EXTRACT OF THE BYELAW OF THE PETITIONER BANK WAS AMENDED ON 20/09/2002 IN ORDER TO AVOID THE OVERLAPPING AREA. P3: AN EXTRACT OF THE APPLICATIONS APPROVED BY THE MANAGING COMMITTEE FOR BYELAW AMENDMENT. P4: COPY OF THE LETTER OF SANCTION DTD. 11/03/2005 RECEIVED FROM THE PRINCIPAL AGRICULTURAL OFFICER. P5: COPY OF THE PERMIT DTD. 11/03/2005. P6: COPY OF THE ORDER DTD. 24/062/005 OF THE 3RD RESPONDENT WITHDRAWING THE STAY. P7: COPY OF THE 1ST PAGE OF THE BYELAW OF THE 4TH RESPONDENT BANK FILED BEFORE THIS HONOURABLE COURT. P8: COPY OF THE JUDGMENT IN WPC.NO.13760/2005 DTD. 23/11/2005. P9: COPY OF THE AFFIDAVIT AND PETITION. P10: COPY OF THE ORDER DTD.22/12/2005. P11: COPY OF THE JUDGMENT IN WPC.NO.36532/2005 DTD. 31/01/2006. P12: COPY OF THE ORDER OF THE 3RD RESPONDENT DTD. 27/12/2005 ALLOWING THE PETITIONER BANK TO OPEN THE BRANCH AT VILAKUDY. P13: COPY OF THE JUDGMENT IN WPC.NO.5768/2006 DTD. 28/02/2006. P14: COPY OF THE REVISION PETITION FILED BY THE 4TH RESPONDENT. P15: COPY OF THE COMMENTS DTD. 7/04/2006 SUBMITTED BY THE MANAGING COMMITTEE OF THE PETITIONER. P16: COPY OF THE LETTER DTD. 2/01/2007. Kss ..2/- ..2.... WPC.NO.10254/2008 U P17: COPY OF THE ARGUMENT NOTE. P18: COPY OF THE ORDER G.O.(RT) NO.333/2007/CO-OP. DTD. 15/05/2007 OF THE JT. REGISTRAR (GENERAL) KOLLAM. P19: COPY OF THE JUDGMENT IN WPC.NO.19864/207 DTD. 14/11/2007. P20: COPY OF THE ORDER NO.G.O.(RT) NO.156/2008/CO-OP. DTD. 29/02/2008. RESPONDENT'S EXHIBITS: R4(A): COPY OF THE BY LAW OF THE AVANEESWARAM CO-OPERATIVE SOCIETY. R4(B): COPY OF THE RESOLUTION PASSED BY THE 4TH RESPONDENT BANK. R4(C): COPY OF THE ORDER OF APPROVAL BY THE DEPUTY REGISTRAR. R4(D): COPY OF THE RESOLUTION NO.2657/69/J DTD. 3/12/1972 OF THE DEPUTY REGISTRAR. R4(E): COPY OF THE RESOLUTION NO.261 DTD. 26/03/1963 BY THE DEPUTY REGISTRAR. R4(F): COPY OF THE BYE-LAW AMENDMENT PROPOSED BY THE PETITIONER DTD. 30/08/1972. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC,J. --------------------- W.P.(C).No.10254 OF 2008 ------------------------ Dated this the 3rd day of July, 2009. JUDGMENT The controversy in this writ petition is mainly regarding the petitioner Bank overlapping the area of operation of the 4th respondent Bank. 2. The facts of the case, to the extent that are relevant, are that, the petitioner claims that, by virtue of Exts.P1, P2 and P3, their area of operation covers Vilakudy in Pathanapuram Taluk. Ext.P4 is the licence obtained by the petitioner for starting Fertilizer Depot at Vilakudy and Ext.P5 is the permit for the said depot. They established the Depot and at that point of time, the 4th respondent, another Co-operative Bank, raised objections before the Joint Registrar. The Joint Registrar an order restraining the petitioner from continuing the Depot, but however by Ext.P6, the Joint Registrar overruled the objections raised WP(c).No.10254/08 2 by the 4th respondent. 3. That order was called in question by the 4th respondent before this court in WP(c).No.13760/05. This court, taking note of the case of the petitioner that, by virtue of the amendments to the bye laws, the area on question is covered by their area of operation, disposed of the writ petition by Ext.P8 judgment, directing that it will be open to the 4th respondent to raise objections to the amendment to the bye laws. Accordingly, the 4th respondent filed their objections before the Joint Registrar. Parties were heard and by Ext.P10 order of the Joint Registrar, the objection raised by the 4th respondent was rejected. 4. That order was challenged in WP(c).No.36532/05. The writ petition was disposed of by Ext.P11 judgment relegating the 4th respondent to pursue the statutory remedies under Section 87 of the Co-operative Societies Act. Accordingly, Ext.P14 revision was filed by the 4th respondent to which Ext.P15 reply was filed by the petitioner. It is stated that pursuant to Ext.P16 notice of hearing, the Joint Secretary WP(c).No.10254/08 3 to Government, by name P. Jayakumar heard the parties, but however, Ext.P18 order allowing the revision was passed by the Principal Secretary to Government. Ext.P18 order was again challenged by the petitioner in WP(c).No.19864/07. That writ petition was disposed of by Ext.P19 judgment directing that the same officer shall hear and dispose of the matter. Accordingly, the Joint Secretary to the Government heard the parties again and the revision was allowed by Ext.P20 order. In this writ petition what is under challenge is Ext.P20. 5. The operative portion of Exts.P20 reads as under. “On examination of this case with the available documents it is seen that the contention raised by the Revision Petitioner an amendment made regarding its area of operation could not be proved by documentary evidence. I this context, it is to be noted that the amendment proposal made by the (Revision Petitioner) Bank during 1989, was rejected by the Joint Registrar, stating that such an amendment will overlap the area of operation of Elampal Service Co-operative Bank. In the circumstances, the Revision Petition filed by the Avaneeswaram Service Co-operative Bank is allowed upholding the order issued in the Government Order as 3rd paper. The Revision Petition is disposed of accordingly.” WP(c).No.10254/08 4 6. The contention raised by the counsel for the petitioner is that, in the first paragraph quoted above, the Government have found that the 4th respondent could not prove by documentary evidence that amendment to their bye laws was effected on 3.12.1972 as claimed by them, to contend that Vilakudy comes within their area of operation. It is pointed out that despite the finding as above, the revision filed by the 4th respondent against Ext.P10 order passed by the Joint Registrar was allowed. The contention raised is that, the final order passed in the revision is contradictory to the findings entered in the order itself. 7. Counsel for the 4th respondent, on the other hand, refers to Ext.R4(a) as the bye laws registered in 1963. According to her, in 1968 they again proposrd to amendment to the bye -laws by Ext.R4(c). It is stated that on 3.12.1972 by Ext.R4(d), the amendments were allowed and as a result of this amendment, their area of operation covers Vilakudy as well. It is therefore submitted that they were justified in raising objection against petitioner establishing Fertilizer depot WP(c).No.10254/08 5 trespassing into their area of operation. 8. What is under challenge in this writ petition is Ext.P20 order passed by the Government disposing the revision filed by the 4th respondent. The contention raised by the petitioner is that, Vilakudy comes within their area of operation, but the 4th respondent contended that the Vilakudy comes within the area of operation of their Bank in terms of the bye laws as amended on 3.12.1972. The findings of the Government in Ext.P20 is that, the 4th respondent, which had filed the revision, could not establish their case of having got the bye laws amended on 31.12.1972, bringing within their area of operation, Vikakudy as well. Despites this, the revision petition is allowed in Ext.P20. This finding, as rightly contended by the counsel for the petitioner, is contradictory. If as a matter of fact, as asserted by the counsel for the 4th respondent, they have produced documents before Government to prove that their bye law were amended on 3.12.1972, the finding in first paragraph, as extracted above is incorrect. On the other hand if they have no documents, WP(c).No.10254/08 6 the relief granted is contradictory to the findings in the order. Therefore, Ext.P20 order at any rate cannot be sustained and the Government will have to re-examine the matter in the light of the documents produced by the parties and with notice to them. Therefore the writ petition is disposed of quashing Ext.P20 and directing the first respondent to consider Ext.P14 revision filed by the 4th respondent with notice to the parties. It is made clear that it will be open to both the parties to produce documents, which are necessary for adjudicating the matter. Final order in this behalf will be passed, as expeditiously as possible and at any rate within 3 months from the date of production of a copy of the judgment. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.10254/08 7