IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 WP(C).No. 33649 of 2008(E) --------------------------------------- PETITIONER: ------------------- K.A.APPACHAN, KURUDEMPARAMBIL HOUSE, THALAYOLAPARAMBU.P.O, VAIKOM, KOTTAYAM. BY ADV. MR.P.P.JACOB. RESPONDENTS: ------------------------ 1. KADUTHURUTHY RUBBER MARKETING AND PROCESSING SOCIETY LTD.NO.1397, KADUTHURUTHY, KOTTAYAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G),KOTTAYAM. R1 BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33649/2008-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER ISSUED BY PETITIONER DTD. 06/11/2007. EXT.P.2: COPY OF THE A/D CARD SIGNED BY R.1. DTD. 09/11/2007. EXT.P.3: COPY OF THE REPRESENTATION FILED BY PETITIONER BEFORE THE R.2. DTD. 12/03/2008. EXT.P.4: COPY OF THE REPRESENTATION FILED BY PETITIONER BEFORE THE R.1. DTD. 03/04/2008. EXT.P.5: COPY OF THE LETTER ISSUED BY R.1. TO THE PETITIONER DTD. NIL. EXT.P.6: COPY OF THE JUDGMENT IN W.P.(C).NO.15010/08 DTD. 22/05/08. EXT.P.7: COPY OF THE ORDER ISSUED BY THE R.2. DTD. 28/08/08. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE LETTER NO. 227/06 DTD. 06/03/2008. EXT.R1.B: COPY OF THE ACKNOWLEDGEMENT DTD. 10/03/2008. EXT.R1.C: COPY OF THE STATEMENT FILED BEFORE THE R.2. DTD. 21/08/2008. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC,J. --------------------- W.P.(C).No.33649 OF 2008 ------------------------ Dated this the 6th day of July, 2009. JUDGMENT Petitioner seeks to quash Ext.P7 and a direction to the respondents to allow him to continue as a member of the Managing Committee of the first respondent Society, enabling him to participate in the meetings by issuing communications, is also sought for. 2. Facts of the case are that, the petitioner was a member of the Managing Committee of the first respondent. According to him, there was a dispute among the members of the Committee and consequently he was not being intimated about the meetings of the Managing committee. He submitted Ext.P1 complaint to the first respondent requesting that he should be issued notices of managing committee meetings. It is stated that, despite all his efforts, notices were not issued. Thereupon he filed WP(c).No.33649/08 2 Ext.P3 complaint to the 2nd respondent and again Ext.P4 complaint was made to the first respondent. 3. At this stage, petitioner filed a writ petition before this court as WP(c).No.15010/08. That writ petition was disposed of as per Ext.P6 judgment directing the 2nd respondent to consider Ext.P3. Accordingly, the 2nd respondent considered the grievances raised by the petitioner and passed Ext.P7 order. In that order, it has been held that, on account of the petitioner's absence in four consecutive meetings of the Managing Committee, he lost his membership as per clause 6 (2) of the bye-laws. It was also held that the petitioner did not pay the increased share value within the time and therefore as provided in clause 5(3) of the bye-laws, lost membership in the Society itself. It is this order that is under challenge. 4. The first contention that is raised by the counsel for the petitioner is that, in Ext.P7, service of notice of the meeting of the Managing Committee was found against the petitioner, relying entirely on the records produced by the respondents regarding the notice allegedly sent under WP(c).No.33649/08 3 certificate of posting. Counsel contends that service of notice, recognized under the Act is only be by registered post acknowledgment due. In so far as this issue is concerned, the finding in Ext.P7 is that the petitioner was consecutively absent in four Board meetings and therefore lost his membership in terms of clause 6(2) of the bye laws. True, in Ext.P7, the contention of the petitioner that he did not receive notice of the aforesaid meetings has been rejected, relying on the document produced by the respondents relating to the notices which are allegedly sent under certificate of posting. 5. First of all respondents point out that after the petitioner suffered ineligibility to continue as a member, they issued Ext.R1(a) show cause notice to the petitioner calling upon him to appear and show cause against his cessation of membership. It is stated that Ext.R1(a) was sent by registered post and the same was duly acknowledged by the petitioner by Ext.R1(b). It is stated by the respondents that, neither did the petitioner filed any objection nor did he appear before the WP(c).No.33649/08 4 respondents and raised his objection on the allegations in the show cause notice. It is contended that the petitioner has subsequently chosen to raise complaint before the Joint Registrar. Respondent contended that this plea lacks bona fide. 6. Admittedly, the petitioner had received Ext.R1(a) show cause notice and the receipt of Ext.R1(a) is acknowledged by Ext.R1(b). If that be so, there is no explanation forthcoming from the petitioner as to why he did not raise the plea of non-service of the notices of the four Managing Committee meetings and that the contents of the covers delivered were not notices. This having not done, I see absolutely no bona fide for the belated complaint that is raised by the petitioner. 7. Counsel for the petitioner referred to me Section 104 of the Kerala Co-operative Societies Act and contended that the only mode of service recognized in the Act is by registered post acknowledgment due. True, Section 104 of the Act provides that every notice, may be served on any person, by properly addressing it to the last known place of residence or WP(c).No.33649/08 5 business of such person, preparing and posting by registered post and that unless the contrary is proved, such service shall be deemed to have been effected at the time at which the letter would be delivered in the ordinary course. This section has been interpreted by this court and it has been held that, thought the Act provides for service by registered post acknowledgment due, the Act does not exclude other modes of service on the addressee. If that be so, the certificate of posting is a permissible method of service of notices and the question can only be whether notice has been actually served on the addressee, the petitioner herein. 8. As I already found, if the petitioner had a case that these notices were not served on him and the contents of the cover which were served on the petitioner were something else, as now contended, the first opportunity that was available to the petitioner to take up this contention was, on receipt of Ext.R1(a) show cause notice issued on the petitioner. Admittedly the petitioner did not make use of that opportunity and if that be so, I am not prepared to accept the theory now WP(c).No.33649/08 6 belatedly canvassed. 9. The other plea that is raised in the writ petition is that, unless a declaration as contemplated under Rule 44(3) of the Kerala Co-operative Societies Rules is made by the Registrar, member of a committee will continue to be a member. Rule 44(3) provides that the Registrar may in the circumstances provided in the Rule, pass an order in writing, declaring that a member has ceased to be a member of the Committee of the Society from the date of such disqualification. In my view, this Rule, in the facts of this cas,e has no application. By virtue of the petitioner's consecutive absence in the committee meetings he has ceased to be a member of the Committee. Thus it is a case of cessation of membership is on account of his absence in the Committee and not a case of removal from membership. For such cessation of membership , the Registrar do not have make a declaration as contemplated in Section 44(3) of the Act. For this reason, the judgment in Rajagopalan V. Baby Alex (1994 (2)KLT 974 ) relied on by the counsel for the petitioner also WP(c).No.33649/08 7 has no relevance. Next, it is contended that to remove a person from the membership of a Society, even for non-payment of the additional share value, the procedure as contemplated in Rule 16(3) should be complied with. Counsel for the respondent bank objects to the consideration of this plea for the reason that this contention has not been raised in pleadings. Thereupon, I call up the counsel for the petitioner to refer to me the pleadings where this ground is urged and he could not show me any specific plea in this regard. Therefore, I decline to consider this plea. For the reasons stated above, I am not inclined to interfere. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.33649/08 8