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. 17336 of 2007(L) -------------------------- PETITIONER: ------------------ K.S.ANIL, KOMALAZHIKATHU HOUSE, MANNADY, ADOOR TALUK, PATHANAMTHITTA. BY ADV. SRI.P.P.JACOB SRI.N.T.SATHYAVAN RESPONDENTS: ---------------------- 1. CASHEW EMPLOYEES WELFARE CO-OPERATIVE SOCIETY LTD NO.P.T.200, ADOOR, REPRESENTED BY ITS HONORARY SECRETARY. 2. STATE CO-OPERATIVE UNION, KERALA, TRIVANDRUM REPRESENTED BY ITS SECRETARY/ ADDITIONAL REGISTRAR OF CO-OPERATIVE SOCIETIES, TRIVANDRUM. 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), PATHANAMTHITTA. 4. E.NARAYANAN, MANAGING COMMITTEE MEMBER, STATE CO-OPERATIVE UNION, KERALA, THIRUVANANTHAPURAM. 5. STATE OF KERALA REP.BY SECRETARY TO GOVERNMENT, CO-OPERATION (C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. ADDL.R6: ADOOR URBAN CO-OPERATIVE BANK, REPRESENTED BY ITS SECRETARY (IMPLEADED VIDE ORDER DATED 16.1.2008 IN THE W.P.C) R1 BY ADV. SRI.V.SETHUNATH R2 & R4 BY ADV. SRI.C.P.MOHAMMED NIAS R3 & R5 BY GOVERNMENT PLEADER, SRI.P.K.RAVIKRISHNAN ADDL.R6 BY ADV. SRI.JACOB P.ALEX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 31.10.2006. EXT.P2: COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DT.4.11.2006 EXT.P3: COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DT.2.11.2006. EXT.P4: COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DT.6.11.2006. EXT.P5; COPY OF THE PROCEEDINGS AS RECORDED IN THE MINUTES DT.8.11.2006. EXT.P6: COPY OF THE JUDGMENT IN W.P.(C) NO.29733/2006 DT.21.3.2007. EXT.P7: COPY OF THE APPEAL DT.8.1.2007 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P8: COPY OF THE STATEMENT FILED BY THE PETITIONER IN THE APPEAL BEFORE THE 1ST RESPONDENT DT.24.5.2007. EXT.P9: COPY OF THE ORDER IN APPEAL VIDE G.O./(RT)389/07/CO-OP. DT.31.5.2007. RESPONDENTS' EXTS: EXT.R6(a): COPY OF THE APPLICATION NO.61/03 DT.26.6.2003 EXT.R6(b): COPY OF VOUCHER NO.2038 DT.04.07.2003. EXT.R6(c): COPY OF PROMISSORY NOTE DT.04.07.2003 EXT.R6(d): COPY OF CONTINUING MORTGAGE DEED EXT.R6(e): COPY OF THE LETTER DT.11.11.2003 EXT.R6(f): COPY OF THE DESPATCH REGISTER. EXT.R6(g): COPY OF JOURNAL OF THE POSTAL DEPARTMENT EXT.R6(h): COPY OF THE REQUEST LETTER DT.20.07.2006 EXT.R6(i): COPY OF THE LOAN REGISTER (2 SHEETS) EXT.R2(a): COPY OF THE RESOLUTION DT.27.10.2006 EXT.R2(b): COPY OF THE RESOLUTION DT.1.11.2006 THOTTATHIL B.RADHAKRISHNAN, J. --------------------------------------------------- W.P.(C) No.17336 OF 2007 ------------------------------------ Dated this the 9th day of June, 2008 J U D G M E N T ~~~~~~~~~~~ The petitioner, while a member and the President of the 1st respondent Society, was served Ext.P1 notice of the 3rd respondent, calling upon him to show cause against declaring him as disqualified to hold such office on the ground that he was disqualified in terms of Rule 44(2)(a) of the Kerala Co-operative Societies Act. The ground stated in that notice is that on an inspection of the 6th respondent Society the Assistant Registrar has reported that the petitioner was one of the sureties for a loan availed by his mother from the 6th respondent and that the 6th respondent had issued a registered notice dated 11.11.2003 and a further demand notice dated 6.5.2004 to the petitioner informing that the said amount has to be remitted, however that till 25.7.2006, the date of inspection of the 6th respondent's office by the Assistant Registrar, the amount was not paid. 2. The petitioner refuted the allegations and contended that he had no knowledge of the notices dated 11.11.2003 and 6.5.2004 mentioned in Ext.P1. W.P.(C)No.17336/2007 2 3. The issue was decided by the 3rd respondent as per Ext.P4, against the petitioner and on his challenge to that, he was relegated by this Court to the Government for consideration of his statutory appeal. As per Ext.P9, the Government decided that appeal against him. Hence Exts.P4 and P9 are challenged. 4. Since the issues revolved on the basis of the files of the 6th respondent, the said party was brought on record by this Court ordering impleadment. Following order dated 16.1.2008, the 6th respondent has filed a counter affidavit. The crucial facts disclosed by that counter affidavit are that on default in repayment of four consecutive monthly installment a registered notice dated 11.11.2003 was issued. Ext.R(6)(e) is the copy of that notice. It is addressed to the mother of the petitioner with copies to three persons including the petitioner. Ext.R6(f) is the despatch register of the 6th respondent and Ext.R6(g) shows that a postal article addressed to K.S.Anil (petitioner) was registered with the department of posts as a registered postal article on 13.11.2003. That affidavit does not disclose whether the postal article is shown to have been delivered, either evidenced by acknowledgment card or otherwise. W.P.(C)No.17336/2007 3 5. The counter affidavit on behalf of the 3rd respondent also shows only that registered notices were sent by the 6th respondent. The 3rd respondent in the counter affidavit does not assert of such notices having been delivered to the petitioner. 6. Rule 44(2)(a) quoted in Ext.P1 does not apply at all because that deals with commission of offences and resultant cessation of offence. Therefore, strictly put, the proceedings could not have been had, because Rule 44(3) provides a pre- decisional opportunity, meaning thereby, an opportunity of hearing on the ground of disqualification proposed. 7. Be that as it may, treating that the provision of law is erroneously mentioned in Ext.P1 and treating that the case is sought to be put under Rule 44(2)(c) read with rule 44(1)(c)(i), it needs to be noticed that two conditions have to be satisfied to find a person disqualified on that ground. Firstly, a notice from the creditor society demanding the person to clear off the defaulted amount ought to have been received by the member concerned. Secondly, he has to fail to remit or cause to remit an amount within a period of one month thereafter. As held by this Court in W.P.(C)No.17336/2007 4 Salim v. Joint Registrar [1998(2) KLT 665] the burden is on the person who alleges disqualification to prove the date of receipt of notice by the member concerned. The crucial date therefore, is the date of delivery of the notice. The jurisdictional fact to disqualify a person in terms of the said rule is firstly, the actual receipt of the notice of demand by the member concerned. Without satisfying that conditions to the hilt, no disqualification could be found or declared because the consequences flowing out of the proceedings are drastic and affecting the rights of a person to participate on the strength of his having been elected in a democratic process. Having regard to the nature of the consequences, the rule in question has to be strictly concerned. So applying, it is beyond doubt that there is no allegation in Ext.P1 notice and there is no finding in the impugned orders that the petitioner had received the alleged demand notice/notices. There is also no shred of material to record to hold that any such notice was received by the petitioner or delivered to him in accordance with law. The impugned Exts.P4 and P9 decisions did not therefore stand. They are contrary to the rules are hence liable to be set aside. W.P.(C)No.17336/2007 5 8. Petitioner challenges Ext.P5 also. That contains the minutes of a meeting dated 8.11.2006, by which, the 4th respondent has been chosen unopposed, as the chairman of the 2nd respondent. The challenge in the writ petition to Ext.P5, is as if the same is merely consequential to Ext.P4, which has been found liable to be quashed. But, the 2nd respondent has filed a counter affidavit producing therewith Exts.R2(a) and R2(b), by which it is shown that it is not so. The impugned Ext.P5 is the result of certain events in the meeting dated 1.11.2006. It is recorded in Ext.R2(b) that the petitioner expressed in that meeting that he is resigning from the post of chairman. As a consequence, it was decided by the committee, to hold a meeting on 8.11.2006. The impugned Ext.P5 is the minutes of that meeting whereby, the 4th respondent has been elected as the chairman of the 2nd respondent. Faced with Exts.R2(a) and R2(b), the petitioner attempted to challenge the veracity of those documents. Accordingly, the original minutes book was brought and perused by this Court. The controversies thereafter, by arguments, revolved around the recording of the minutes. Such issues cannot be gone into, for two reasons. Firstly, there are no pleadings in support of such allegations. Secondly and more importantly, if W.P.(C)No.17336/2007 6 there is any such dispute, it is not to be resolved in this jurisdiction. 9. The further question raised in as to whether the chairman of the 2nd respondent could resign orally or whether the resignation could have been only by tendering a written resignation in terms of Section 38(6) of the Act. That provision applies only to resignation from the committee and not from the chairmanship of the committee. Following the decision of this Court in Thomas Antony v. Additional Registrar of Co- operative Societies [2001 (1) KLT 262] the contention of the petitioner that without a written resignation, he cannot be treated as one who has resigned from the post of the chairman of the committee of the 2nd respondent, is only to be rejected. I do so. However, it is clarified that, this judgment does not touch upon any question as to the correctness or otherwise of the minutes of the meetings in question and the parties are at liberty to seek adjudication of the same before the appropriate forum, in accordance with the Kerala State Co-operative Act and Rules. W.P.(C)No.17336/2007 7 In the result, Exts.P4 and P9 are quashed and the challenge to Ext.P5 is left open, subject to what is stated above. (THOTTATHIL B.RADHAKRISHNAN, JUDGE) ps