IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 WA.No. 2146 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.5507/2008 Dated 17/07/2009 .................... APPELLANT(S): RESPONDENTS 2 TO 4 -------------------------------- 1. G.BABU, THARA, KUMARA VILA, NELLIMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM 2. MR.VIJAYADAS, PADMAVILASAM, NELLIMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM 3. M.PONNAYYAN,KOTTAKUZHY VEEDU, NELLIMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM ¦ BY ADV. SRI.P.RAVINDRAN, SENIOR ADVOCATE SRI.D.SOMASUNDARAM RESPONDENT(S): PETITIONER AND 1ST RESPONDENT -------------------------------------------- 1. B.SIVAKUMAR, SREE BHAVANAM, VALIYAVILA, KOTTACKAL,NELLIMOODU PO, NEYYATTINKARA, THIRUVANANTHAPURAM 2. STATE OF KERALA,REP.BY THE SECRETARY, DEPARTMENT OF CO-OP. SECRETARIAT,THIRUVANANTHAPURAM ADV. SRI.B.S.SWATHY KUMAR FOR R1 GOVT.PLEADER (SPL.)(CO-OP) SMT.ANU SIVARAMAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2010,ALONG WITH WA NO. 2395 OF 2009 WA NO. 2148 OF 2009 & WPC NO. 35388 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. Basheer & P.Q. Barkath Ali, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.Nos. 2146, 2148 & 2395 of 2009 & W.P (C).No. 35388 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November, 2010 Judgment Basheer, J: The short question that falls for consideration in the three writ appeals is whether the Government has got inherent power to review its own order passed in exercise of its appellate jurisdiction under Section 83(1)(j) of the Kerala Co-operative Societies Act 1969 (for short the Act). 2. The learned single Judge before whom the issue came up, answered the above question in the negative. 3. WA.No. 2395/2009 is filed by the State, while WA.No.2146/2009 is by three of the members of the Board of Directors of Nellimoodu Service Co-operative Bank Ltd., challenging the correctness of the above view taken by the learned single Judge in WPC.No.5507/2008. The Bank and the three Directors referred to above have filed WA.No.2148/2009 against the judgment in WP.No.13481/2007 holding that acceptance of nomination papers of the three former Directors was invalid. 4. The captioned writ petition has been filed by 5 of WAs.2146,2148,2395/09 & WPC.35388/09. : 2 : the Board members of the Bank praying for issue of a writ of certiorari to quash the Surcharge order passed by the Joint Registrar and the appellate order passed by the Government by which the order of the Joint Registrar was confirmed. 5. Having heard learned senior counsel who appears for the Bank and the Board members, learned counsel for the contesting respondent and also the learned Special Govt. Pleader for the appellant in WA.No.2395/2009, we do not deem it necessary to refer to or deal with the entire factual matrix in great detail, since the primary question involved in the case falls in a vary narrow compass. However it may be necessary to refer at least to the essential facts for deciding the issue that has cropped up in these cases. 6. In November 2004, Joint Registrar of Co- operative Societies (General), Thiruvananthapuram issued Surcharge orders against the members of the Board of Directors under Section 68(2) of the Act on the ground that the Bank had purchased an item of immovable property without the permission of the competent authority. 7. The above order was challenged by the Bank and the Board of Directors before the Govt. in an appeal under Section 83(1)(j) of the Act. The appeal was dismissed by the WAs.2146,2148,2395/09 & WPC.35388/09. : 3 : Government by order dated November 11, 2005, a copy of which is available on record as Ext.P1. It is the admitted position that the said order became final since it was not challenged before any authority as contemplated under law. 8. However when three of the outgoing members of the Board of Directors filed nomination papers in the ensuing election that was scheduled to be held in 2007, two members of the Bank raised objection about the eligibility of these three Directors to contest the election on the ground that the Surcharge order issued by the Joint Registrar, and later confirmed by the Government, would disentitle them to compete. 9. The above contention raised by the two members was repelled by the Joint Registrar and the nomination papers were accepted. This was challenged by the two members before this Court in WP.No.11929/2007. The Returning Officer informed this Court that he was not aware of the Surcharge order issued against these three Directors. Therefore this Court directed the Returning Officer to hold a “re-scrutiny” of the nomination papers in the light of the Surcharge order and take a fresh decision in the matter. 10. Pursuant to the above direction, the Returning WAs.2146,2148,2395/09 & WPC.35388/09. : 4 : Officer issued notice to the three Directors for the purpose of completing the process of “re-scrutiny”. It is the case of the two members of the Bank that on receipt of the above notice from the Returning Officer, the three former Directors filed a petition for Review before the Government against the order of dismissal of their appeal. The Govt. entertained the Review Petition and passed an order of interim stay of operation of its own earlier order in the appeal. 11. The nomination papers submitted by former Directors were thereafter accepted by the Returning Officer on the strength of the stay order issued by the Government. Election was held and the three former Directors were re- elected. Thereafter the Government passed orders on the Review Petition, of course, pursuant to the direction issued by this Court in WP.No. 14414/2007. It appears that this Court had only directed the Government to consider and pass orders on the Review Petition that was reportedly pending. Anyhow, the fact remains that the Govt. allowed the Review Petition and set aside its own appellate order passed earlier in 2005. 12. The above order passed by the Government in purported exercise of its power of review was challenged by WAs.2146,2148,2395/09 & WPC.35388/09. : 5 : two members of the Bank before the learned single Judge which resulted in the impugned judgment in the three appeals. 13. It is beyond controversy that the Act or Rules framed thereunder, do not confer any power of review on the Government. It is trite that power of review can be exercised by any authority only if it is specifically conferred on it. The above settled legal position does not call for any further discussion or elucidation. Having regard to the entire facts and circumstances and also the settled position of law, we have no hesitation to hold that the order passed by the Government, in the purported exercise of power of review, is wholly unsustainable. The Writ Appeals are without any merit and they are liable to be dismissed. 14. Learned counsel for the appellants (the Bank and the former Directors) have not ventured to advance any arguments on this point before us. However, Ms.Anu Sivaraman, learned Special Government Pleader tried to defend the action of the Government contending, inter alia, that anxiety of the Government was probably to set right an apparent illegality committed by the subordinate authority, namely the Joint Registrar. We refrain from addressing the WAs.2146,2148,2395/09 & WPC.35388/09. : 6 : issue from that angle at all for the simple reason that even in that scenario the Government could not have resorted to such a course of action under the guise of exercise of a power which was non-existent. 15. Sri.Swathy Kumar contends that the Government had shown undue indulgence, which on the face of it is palpably vulnerable, in favour of the Bank and the Board Members due to extraneous political reasons. Yet again, we do not propose to deal with the above contentions raised by the learned counsel for the contesting respondents. 16. WPC. 35388 of 2009 has been tagged on to the above appeals since the connected issue is being considered by us in these writ appeals. As has been indicated earlier, in this Writ Petition the Board members (three of whom have been re-elected in the election held in 2007), have challenged Surcharge order passed by the Joint Registrar under Section 68(2) of the Act as well as the order passed by the Government in exercise of its appellate powers under Section 83(1)(j) of the Act, confirming the order passed by the Joint Registrar. 17. Several contentions have been raised by the parties before us for and against the sustainability of the WAs.2146,2148,2395/09 & WPC.35388/09. : 7 : challenge in the above writ petition. We do not deem it necessary to refer to any of those contentions at this stage, since in our view, it will be appropriate if the issues are thrashed out by the parties before the learned single Judge. Learned counsel for the parties also have no objection to the above course of action. 18. We make it clear that we have not considered the merit of any of the contentions raised by the parties in this writ petition. It will be open to the parties to raise all the contentions available to them before the learned single Judge. 19. The Registry shall post the writ petition before the appropriate Bench on November 30, 2010, as agreed by the learned counsel for the parties. Status quo as on today shall be maintained till that date. Writ Appeals are dismissed and Writ Petition is disposed of with the above direction. A.K. Basheer Judge. P.Q. Barkath Ali an/kvs. Judge.