IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 20TH JULY 2011 / 29TH ASHADHA 1933 WP(C).No. 2783 of 2011(W) --------------------------------------- PETITIONER(S): ------------------------ 1. P.BHARGAVAN, GIRIJA SADANAM, PULIYOOR, PACHA P.O., NEDUMANGAD, THIRUVANANTHAPURAM. 2. MANAGING COMMITTEE OF NANNIYODE KSHEEROLPADAKA CO-OPERATIVE SOCIETY LT.NO. T.57(D), APCOS, NANNIYODE, PACHA P.O., NEDUMANGAD, THIRUVANANTHAPURAM, REPRESENTED BY ITS PRESIDENT B.S.RAMESHAN. BY ADVS. SRI.B.S.SWATHY KUMAR SMT.P.A.ANITHA SMT.S.MEERA SMT.M.G.AISHWARYA RESPONDENT(S): -------------------------- THE DEPUTY DIRECTOR OF DAIRY DEVELOPMENT, PATTOM, THIRUVANANTHAPURAM. *ADDL.R2 IMPLEADED *R2: R.MADHUSOODANAN NAIR, S/O.N.RAMAN PILLAI, RAJU BHAVAN, PALUVALLY.P.O., PACHA, THIRUVANANTHAPURAM DISTRICT. * IS IMPLEADED VIDE ORDER DATED 10/3/11 IN IA.NO.3956/2011 R1 BY GOVERNMENT PLEADER SRI.BASANT BALAJI R2 BY ADV.SRI.GEORGE POONTHOTTAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.2783/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE RELEVANT PORTION OF THE BYE-LAW OF THE 2ND PETITIONER SOCIETY. P2 COPY OF THE NOTICE NO.D.2966/10 DATED 1/1/2011. RESPONDENT'S EXHIBITS: R(A) COPY OF THE LETTER NO.230/10 DATED 29/12/2010 OF THE DAIRY EXTENSION OFFICER VAMANAPURAM BLOCK, THIRUVANANTHAPURAM. /TRUE COPY/ P.S.TO.JUDGE sts P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.2783 of 2011 ----------------------------------------- Dated this the 20th July, 2011 JUDGMENT The first petitioner is a member of the Nandiyode Ksheerolpadaka Co-operative Society Limited No.T.57(D) (APCOS), which was formed in the year 1976. The first petitioner became a member on 20.10.1976. At that time, the area of operation of the society was Nandiyode Grama Panchayat. Later the bye-laws were amended and the area of operation was confined to Ward Nos.II and VII of Nandiyode Grama Panchayat, known as Nandiyode and Alampara respectively. At the time when he became a member and even today the first petitioner is residing in the same house, it is stated. But it is conceded that pursuant to a recent delimitation exercise, the locality where he is residing is part of Ward No.III known as Vattappankadu. After the delimitation, the Deputy Director of Dairy Development, Pattom, Thiruvananthapuram, the first respondent herein, issued Ext.P2 notice dated 1.1.2011 calling upon the first petitioner to show cause why he should not be disqualified under rule 44(1) of the W.P(C).No.2783 of 2011 -:2:- Kerala Co-oprative Societies Rules, 1969 from continuing as a member of the Board of Directors of the society. Such a notice was issued on the ground that presently he is residing beyond the area of operation of the society and therefore, he is ineligible to continue as a member. The instant writ petition was thereupon filed challenging Ext.P2 notice. It is contended that as the first petitioner had never changed his residence which was formerly in Ward No.II of Nandiyode Grama Panchayat, the mere fact that after delimitation, the locality where he is residing is part of another Ward is not a reason to hold that he is ineligible to continue as a member of the society. 2. A counter affidavit dated 3.2.2011 has been filed on behalf of the first respondent wherein it is contended that the society of which the first petitioner is a member, can have only two Wards as its area of operation, that the two Wards are Ward Nos. II (Nandiyode) and VII (Alampara) and that the locality where the first petitioner is residing is Ward No.III (Vattappankadu). It is also stated that as per Circulars, No.19491/D2/97/D dated 26.5.1997 and No.3526/P2/97/AD dated 25.4.1997 issued by the Government, the area of operation W.P(C).No.2783 of 2011 -:3:- of Anand Pattern Co-operative Societies cannot exceed two adjoining Wards of a Panchayat. The first respondent has on these grounds justified the steps taken by him to disqualify the first petitioner. 3. I heard Sri.B.S.Swathi Kumar, learned counsel appearing for the petitioners, Sri.Basant Balaji, learned Government Pleader appearing for the Deputy Director of Dairy Development and Sri.George Poonthottam, learned counsel appearing for the additional second respondent, yet another member of the society. It is evident from the materials presently on record that steps have been initiated to disqualify the first petitioner by issuing Ext.P2 notice on the ground that he is presently residing in Ward No.III, Vattappankadu, and therefore he is ineligible to continue as a member of the society. The question whether as the first petitioner was validly admitted as a member of the society and the disqualification is alleged because of a delimitation exercise, which resulted in a new Ward being created and the first petitioner thereby became a resident of that new Ward, he is liable to be disqualified, is a matter, in my opinion, which the first respondent should initially decide. It is for the first respondent to W.P(C).No.2783 of 2011 -:4:- consider whether having regard to the provisions contained in the bye-laws and the relevant statutory provisions, the first petitioner has in fact and in law incurred a disqualification. Ext.P2, which is challenged in this writ petition, is only a show cause notice. The jurisdiction of the first respondent to issue the notice is not under challenge. That apart, even if the first petitioner is disqualified overruling the objections raised by him, he has the right to file an appeal before the Government under section 83 of the Kerala Co- operative Societies Act. In such circumstances, I am of the opinion that the first petitioner should file his objections to Ext.P2 and await the decision of the first respondent. However, in view of the fact that the Kerala Co-operative Societies Act confers on the first petitioner the right to file an appeal, I am of the opinion that the first respondent should after passing orders, if the order is adverse to the first petitioner, keep it in abeyance for a period of two weeks from the date of its communication, so as to enable the first petitioner to move the Government in appeal. I therefore, find no grounds to entertain the writ petition. It is accordingly dismissed, leaving open the contentions of both sides, but with the observation that in the event of the first W.P(C).No.2783 of 2011 -:5:- respondent passing an order disqualifying the first petitioner, the same shall not be implemented for a period of two weeks from the date of its communication to the first petitioner, so as to enable the first petitioner to move the Government in appeal and seek interim orders. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.2783 of 2011 ---------------------------- JUDGMENT 20th July, 2011