IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933 OP.No. 21390 of 2000(U) ----------------------- PETITIONER : --------------- JOSE KUTTIYANI, CHAIRMAN, KERALA STATE CO-OPERATIVE MARKETING FEDERATION LTD., GANDHI NAGAR, COCHIN - 20 BY ADV. MR. GEORGE POONTHOTTAM RESPONDENTS: --------------- 1. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF CO-OPERATION, THIRUVANANTHAPURAM 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, (CREDIT & VIGILANCE), OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIEITIES, THIRUVANANTHAPURAM. 4. JOINT REGISTRAR OF CO-OPERATIVE SOCIEITS (AUDIT) ERNAKULAM 5. KERALA STATE CO-OPERATIVE MARKETING FEDERATION REPRESENTED BY THE MANAGING DIRECTOR, GANDHI NAGAR, KOCHI - 20. R1 TO 4 BY SPECIAL GOVERNMENT PLEADER MR. D. SOMASUNDARAN R5 ADV. MR. V.G. ARUN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/10/2011, ALONG OP NO. 7560 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 21390 OF 2000 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE NOTICE NO. M.P.(5) 46737/99 DATED 08.05.2000 EXT. P2 : TRUE COPY OF THE LETTER NO. MP(5) 46737/99 DATED 17.11.99 BY THE REGISTRAR OF CO-OPERATIVE SOCIEITIES TO THE 5TH RESPONDENT. EXT. P3 : TRUE COPY OF THE ARBITRATION CASE FILED BEFORE THE REGISTRAR OF CO-OPERTAIVE SOCIETIES, TRIVAN- DRUM. EXT. P4 : TRUE COPY OF THE REQUEST DATED 19.05.2000 GIVEN TO THE REGISTRAR OF CO-OPERTIVE SOCIETIES ON 22.05.2000 EXT. P5 : TRUE COPY OF THE JUDGMENT IN OP NO. 14682/00 DATED 12.06.2000 EXT. P6 : TRUE COPY OF THE REPORT SUBMITTED BY THE ADDL. REGISTRAR (CREDIT), O/O REGISTRAR OF CO-OPERATIVE SOCIEITIES, THIRUVANANTHAPURAM, DATED 10.01.2000 EXT. P7 : TRUE COPY OF THE REPORT SUBMITTED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (M & P) NO. M/350/2000 DATED 05.04.2000 EXT. P8 : TRUE COPY OF THE CIRCULAR NO. 71/82 DATED 03.01.1983 EXT. P9 : TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 22.06.2000 EXT. P10 : TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE MANAGING DIRECTOR, KERALA STATE CO-OPERATIVE MARKETING FEDERATION LTD. DATED 24.07.1999 /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ O.P Nos. 21390 of 2000 and 7560 of 2003 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 24th October, 2011 JUDGMENT The issue involved in both these original petitions is, whether the proceedings initiated against the petitioners under Section 68 of the Kerala Co-operative Societies Act is correct or sustainable and whether the remedy, if at all any, is to proceed under Section 69 of the Act. 2. The petitioner in O.P. No. 21390 of 2000 was the elected Chairman of the Kerala State Co-operative Marketing Federation Ltd., an apex society under the Kerala Co-operative Societies Act; while the petitioner in other case was the General Manager. A foreign trip was made by them allegedly in connection with the promotion of the business of the Federation, incurring much expenditure. It is stated that the petitioners were proceeded against and the erstwhile committee was superseded in 1999 and an Administrator/Managing Director was appointed by the Government. Thereafter the proceedings were taken for realization of the amounts allegedly due under different heads, referring to mandate under Section 68 of the Act. The learned counsel for the petitioners submits that the course O.P No. 21390 of 2000 and O.P No. 7560 of 2003 : 2 : pursued by the concerned respondent is totally arbitrary, in so far as the very same authority who had passed the impugned order, had earlier submitted Ext. P2 reply (Exhibits referred to as given in O.P. No. 21390 of 2000) to the Managing Director appointed by the Government, holding that, no proceedings under Section 68 would lie and that the remedy if any, could only be under Section 69. Having conceded the position in Ext. P2, it was no more open for the said authority to have taken a 'U' turn, proceeding with Ext. P6, finally culminating in Ext. P10, which hence is under challenge in this original petition. 3. Heard the learned special Government Pleader as well. 4. The learned counsel for the petitioners submits that the concerned respondent has already initiated proceedings under Section 69 as borne by Ext. P3 and this being the position there is no rhyme or reason in proceeding with the matter under Section 68. 5. The learned Special Government Pleader concedes that, ARC 7 of 2000 is pending, which in fact has been preferred under Section 69 of the Act and that the matter can be disposed of with a direction to have the said proceedings finalized in tune with the relevant provisions of law. O.P No. 21390 of 2000 and O.P No. 7560 of 2003 : 3 : 6. Considering the facts and circumstances, this Court does not find it necessary to pursue any adjudication exercise in this case with regard to the sustainability of the impugned proceedings or other wise; more so, when the Registrar himself has already clarified the position as per Ext. P2 and further when the concerned respondent has proceeded with steps under Section 69, leading to ARC 07/2000. . In the above circumstances, Ext. P10 in O.P. 21390 of 2000 and Ext. P5 in O.P. 7560 of 2000 are set aside. The parties are set at liberty to pursue the matter under Section 69, pertaining to ARC 7 of 2000. The said proceedings shall be finalized in accordance with the relevant provisions of law, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. It is made clear that this Court has not expressed anything with regard to the relative merit involved or as to the challenge raised from either side. The legal questions are left open. The Original Petitions are disposed of. Sd/- P. R. RAMACHANDRA MENON, JUDGE kmd