IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 WP(C).No. 14604 of 2008(L) -------------------------------- PETITIONERS: --------------- 1. K.V.UMMER, PRESIDENT, ANAKKAYAM SERVICE CO.OP.BANK LTD.NO.F 880, ANAKKAYAM 2. ABDUL SALAM.T.,DO.DO. 3. IIYAS NADARI, DIRECTOR, DO.DO. 4. KUNNATHADI AHAMMED, DIRECTOR,DO.DO. 5. CGAKKALAKUNNAN MAMEED, DIRECTOR,DO.DO. 6. FATHIMA.V.P.,DIRECTOR, DO.DO. 7. BOARD OF DIRECTORS OF THE ANAKKAYAM SERVICE CO.BANK LTD.NO. 880, ANAKKAYAM, MANJERI. BY ADV. SRI.P.P.JACOB RESPONDENTS: ---------------- 1. JOINT REGISTRAR OF CO.OP.SOCIETIES (G) MALAPPURAM, CIVIL STATION, UPHILL, MANJERI. 2. PART TIME ADMINISTRATOR, ANAKKAYAMI SERVICE CO.OP.BANK LTD.,. UNIT INSPECTOR. A.X.OFFICE, MANJERI UNIT, MANJERI. 3. THE PRESIDENT, DISTRICT CO.OP.BANK MALAPPURAM 4. CHAIRMAN, CIRCLE CO.OP.UNION,MANJERI. 5. CIRCLE CO.OP.UNION, MANJERI, REP. BY ITS CHAIRMAN. (R5 IS DELETED AS PER ORDER IN I.A. 6096/08 IN WPC 14604/08 DATED 23.05.2008) R1 & R2 BY GOVT PLEADER SMT ANU SIVARAMAN R3 AND R5 BY ADV.SMT.UMA GOPINATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. -------------------------------------------------------------- W.P.C. No 14604 of 2008 -------------------------------------------------------------- Dated this the 21st August 2008 JUDGMENT The petitioners are the President, Committee of a Co-operative Society, which stands superseded as per the impugned Ext. P18 order and members of that Committee. This court issued an order of stay of operation of that order at the stage of admission on 13.05.2008 and hence that Committee is continuing in office. It is stated that election of a new Committee is scheduled to be held on 05.10.2008 in view of the fact that even this Committee's term would have expired by then. 2. Following Ext P1 complaint, there was an enquiry under Section 65 of the Kerala Co-operative Societies Act in relation to the society. That led to report dated 01.09.2007. Proceedings were initiated under Section 32 of the Act based on that report. Petitioners moved this Court and they were relegated to the Joint Registrar to file objections since it did not find any jurisdictional error in initiating action under Section 32(1). That was affirmed by the Division Bench leaving open the right, if any, of the petitioners to challenge the enquiry report WPC 14604/08 2 as such, which is permissible in law. Without challenging the report under Section 65 before any competent superior authority, the petitioners gave replies to the notice under Section 32 (1). 3. I may immediately notice that if the officer exercising the powers of the Registrar concludes that proceedings are to be initiated in terms of Section 32 (1) based on enquiry report under Section 65, there is fair room for initiation of such proceedings, going by sub-section (6) of Section 65 of the Act. 4. In answer to Ext. P7 notice under Section 32 (1) the petitioners placed Ext. P13 reply. On consideration of that reply and after hearing the parties the Joint Registrar concluded that the Committee has to be superseded. 5. Circle Co-operative Union and the financing Bank were consulted. Those consultants however responded without having those matters placed before the respective Committees, for reasons which are different. The financing Bank has filed counter affidavit stating that the decision has been appropriately taken by the Committee. Whatever that be, the process of consultation till the Joint Registrar got the communications from the consultants is concerned, is not impeached by the petitioners successfully. The WPC 14604/08 3 question that then arises would be only as to whether the Joint Registrar was bound in law to act on the consultants' opinion. It is only consultation that is envisaged and not concurrence. Obviously therefore, the Joint Registrar cannot be treated as having acted in an unjustifiable manner in refusing to act on the opinions of the consultants since the impugned order carries the reasons of the Joint Registrar, for adopting such a course of action. I therefore do not find any ground to set aside the impugned order on any ground referable to the procedure of consultation. 6. The fact that petitioners were given an opportunity of hearing and that Section 65 report was also given to them along with notice under Section 32 (1) excludes any contention of breach of rule of hearing. 7. The only question on which the entire issue now ultimately rests at is as to whether there is any other jurisdictional error or legal infirmity warranting interference in exercise of the power under Article 226 of the Constitution. The petitioners had a statutory right of appeal against the impugned order. They have foregone that and have requested exercise of visitorial jurisdiction by this Court. Such judicial review is not akin to statutory appeal. There cannot be any WPC 14604/08 4 appreciation of facts and materials to come to a different conclusion unless the consideration of the materials by the Joint Registrar is so palpably perverse that such conclusions are wholly unavailable on the records to a reasonable prudent man, properly advised on law and facts. 8. Different allegations were levelled in Ext. P7. The fact that those allegations depend on the enquiry report under Section 65 is not in dispute. Petitioners placed Ext. P13 objections. While passing the impugned order, Ext P18, the Joint Registrar has accepted some of the answers given by the petitioners in Ext. P13, while some other contentions were rejected and the impugned order has been issued on different grounds. 9. To suffice the satisfaction of the mind of this Court regarding the requirement or otherwise for interference under Article 226, after hearing the learned counsel for the petitioners and the learned Senior Government Pleader quite in extenso on the different grounds mentioned in the impugned order, I deem it necessary only to refer to a couple of findings to consider the sustainability of the impugned order. 10. Ground 4 in Ext P7 notice was in relation to the WPC 14604/08 5 disbursement of 14 home loans, which were not utilised for such purposes. The finding that those home loans were not utilised has been arrived at on the basis of the certificate issued by the Secretary of the Panchayat to the effect that no houses were constructed with the aid of those loans. The plea of the petitioners is that 13 among those loans were advanced before the present Committee came into office in 2003. The fact remains that the 14th home loan was given to member Ayisumma on 28.03.2006 for Rs 5 lakhs, of which repayment of Rs 1 lakh is due. The loan given way back on 02.11.2000 still remains for payment. The repayments of different other loans were only in 2003, 2004, 2005, 2006 and 2007. This shows that the petitioners cannot wriggle out of the responsibility in relation to that allegation by merely stating that 13 loans were granted before the present Committee came into office. 11. Another allegation which I may notice is at serial number 7 under which different transactions in the names of different members are identified and enlisted as paragraphs 7 to 10. The allegations therein are that home repair loans were issued and later, shown to be repaid and closed and fresh house repair loans are issued to the same persons on the respective dates of closure of the previous WPC 14604/08 6 loans. While it may be possible that those were instances of rescheduling the existing transactions, there is no such contention in paragraph 18 of Ext. P13 reply. It is not for this court to sit in appellate jurisdiction and consider the different grounds, objections and possible contentions when the Joint Registrar is shown to have evaluated the objections and replies and had come to a conclusion which cannot be stated as wholly unavailable. 12. The learned counsel for the petitioners further argued that action in terms of Section 32 is a drastic step and ought not to be resorted to on the basis of the report under Section 65 without giving an opportunity for rectification. The two grounds referred to above among the grounds of supersession, are definitely ones which cannot be rectified even by repayment and closure of the accounts. Similarly, evaluation of all other grounds on which the impugned action has been taken does not instill confidence to hold that the impugned order is groundless. 13. The learned counsel for the petitioners ultimately expressed anxiety that the attempt of the respondents is to capture administration of the society in favour of the political parties in the elected Government. There can be no such assumption. Rule of WPC 14604/08 7 law has to always prevail and it is the duty of the State to ensure that it does. The election having been scheduled, it shall be ensured by the first respondent that the election is properly held. Subject to what is stated in the immediately preceding paragraph, above this writ petition fails and the same is accordingly dismissed. Petitioners shall hand over charge forthwith to the Administrator appointed under the impugned order. No costs. Sd/- THOTTATHIL B. RADHAKRISHNAN Judge 21/08/2008 en [true copy] WPC 14604/08 8 APPENDIX Petitioner's exhibits: Ext.P1 - True photocopy of the complaint filed by K. Velayudhan before the Minister for Co-operation dated 9.8.06 Ext.P2 - True photo copy of the judgment in W.P.(C) No 26441/07 dated 6.11.07 Ext.P3 - True copy of the judgment in W.A. 2942/07 dated 17.12.2007 Ext.P4 - True photocopy of the acknowledgement card showing the receipt of proposal for bye law amendment by first respondent. Ext.P5 - True copy of the judgment in W.P.(C) No 34649/07 dated 3.12.2007 Ext.P6 - True copy of the letter issued by the petitioner to the first respondent dated 24.11.2007 Ext.P7 - True photo copy of the Section 32(1) notice issued by the first respondent. Ext.P8 - True photo copy of the letter issued by first respondent dated 15.1.2008 to the petitioner. Ext.P9 - True photocopy of the interim reply filed by the petitioners dated 21.1.2008 Ext.P10 - True photocopy of the defected noted in the audit for the year 2004-05 dated 31.10.2005 Ext.P11 - True photocopy of the amended bye law clause dted 27.10.2005 Ext.P12 - True photocopy of the judgment in W.P.(C) No 2808/08 dated 23.01.2008 Ext.P13 - True photocopy of the explanation submitted by the petitioners before the Joint Registrar dated 6.2.2008 Ext.P14 - True photocopy of relevant pages 1 and 19 of letter issued by the Joint Registrar to respondents 3 and 4 dated 18.3.2008 Ext.P15 - True photocopy of the opinion forwarded by third respondent to the Joint Registrar dated 7.4.2008 Ext.P:16 - True photocopy of the opinion forwarded by fourth respondent to the Joint Registrar dated 5.3.2008 Ext.P 17 - True copy of the letter issued by K. Velayudhan to the Joint Registrar dated 5.3.2008 Ext.P18 - True photocopy of the order issued by Joint Registrar dated 30.04.2008 superseding the committee. Respondent's exhibits: Ext R3(a) - True copy of resolution No 37 dated 12.05.2008 of the Managing Committee of the fifth respondent [true copy]