IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929 WA.No. 355 of 2008 --------------------------- AGAINST THE JUDGEMENT IN WPC NO.1170/2008 DATED 23/01/2008 .................... APPELLANT/RESPONDENT NO.2: ----------------------------------------------- M.M.ALIKUTTY, S/O.AMMUKOYA, AGED 61 YEARS, MOIOLAMANNIL HOUSE, P.O.KIZHAKKOTH, KODUVALLI. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS/PETITIONER AND 1ST RESPONDENT: ----------------------------------------------------------------------------- 1. THE KIZHAKKOTH SERVICE CO-OPERATIVE BANK LTD. NO.D.1952, P.O.KIZHAKKOTH, VIA KODUVALLY, KOZHIKODE 673 572 REPRESENTED BY THE PRESIDENT K.K.ABDURAHIMAN. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KOZHIKODE. R1 BY ADV.MR.GEORGE POONTHOTTAM R2 BY SPECIAL GOVERNMENT PLEADER SMT.A.G.ANEETHA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------ W.A.No.355 of 2008 ------------------------------------------ Dated, this the 8th day of February, 2008 JUDGMENT H.L.Dattu, C.J. This appeal arises out of an order passed by the learned Single Judge in W.P.(C) No.1170 of 2008 dated 23rd January, 2008. 2. The facts in nutshell are: The petitioner before the learned Single Judge is a co-operative society registered under the provisions of the Kerala Co-operative Societies Act, ('the Act for short). The petitioner society being aggrieved by the show cause notice issued by the Joint Registrar of Co-operative Societies (G), Kozhikode, had approached this Court for a writ in the nature of certiorari to quash the said show cause notice on several grounds. Primarily, what was argued and urged before the learned Single Judge was that the Joint Registrar of Co-operative Societies while issuing the show cause notice in exercise of his powers under Section 32 of the Act had not given them sufficient time to file their objections. Taking note of the primary contention that was canvassed, the learned Single Judge has thought it fit to grant sufficient time to the petitioner society to file their objections, if any, to the said show cause notice and has further directed the Joint Registrar of Co-operative Societies to consider the objection that may be filed by the petitioner society and others and in the event he passes an adverse order against the petitioner society, the same shall be kept in abeyance for a period of two weeks. Aggrieved by the latter portion of the order passed by the learned Single Judge directing the Joint Registrar of Co-operative Societies to keep the order that may be passed by him under Section 32 of the Act in W.A.No.355 of 2008 2 abeyance for a period of two weeks, the second respondent in the writ petition has preferred this writ appeal. 3. Sri.P.V.Kunhikrishnan, learned counsel appearing for the appellant, would submit that the learned Single Judge while disposing of the writ petition ought not to have issued any further direction to the Joint Registrar of Co-operative Societies to keep his order in abeyance for a period of two weeks. The direction so issued, according to the learned counsel, is contrary to the observations made by a Division Bench of this Court, in the case of Narayanan Nair v. Vaikom Palliprathusserry Service Co-operative Bank (2003 (2) KLT 44). 4. Sri. George Poonthottam, learned counsel appearing for the contesting respondent, would submit that keeping in view the facts circumstances that were pleaded by the petitioner society, the learned Single Judge was justified in directing the Joint Registrar of Co-operative Societies to keep the order that may be passed by him in exercise of his powers under Section 32 of the Act in abeyance for a period of two weeks which was only to facilitate the petitioner society to file an appropriate statutory appeal, in the event the order passed by the Joint Registrar would go against them. Therefore, submits that there is no error whatsoever in the orders passed by the learned Single Judge. 5. Before we advert to the submission made by the learned counsel appearing for the parties to the lis, we intend to refer to the observations made by a Division Bench of this Court in the case of Narayanan Nair. In the said decision this Court has taken exception to the direction issued by the learned Single Judge to the competent authorities under the provisions of the Kerala W.A.No.355 of 2008 3 Co-operative Societies Act to keep their order in abeyance when it is passed under Section 32 of the Act. The Court has clearly stated in the said judgment that unless there is a pleading to the effect that the Joint Registrar will not act bona fide and fairly and shall not communicate the said order to the aggrieved persons, this Court is not expected to pass any order directing the Joint Registrar to keep the order that is passed under Section 32 of the Act in abeyance. The learned Judges of this institution at paragraph 3 of the judgment have observed as under: “3. Learned counsel for the appellant submits that merely because learned counsel for the petitioners submitted that there was every likelihood of an order being passed against the petitioners and an administrator being appointed so as to take over the administration of the society without affording an effective opportunity to the petitioners for challenging the order in appropriate proceedings the learned single Judge should not have directed the Joint Registrar to keep his order in abeyance for a period of three weeks from the date of communication of the order to the petitioners. Learned counsel further submits that the fact that similar direction was given in other cases was also no justification or ground for giving such a direction in the Original Petition. According to the learned counsel, against an order passed by the Joint Registrar under S.32 of the Kerala Co-operative Societies Act a statutory appeal is provided under S.83(1)(j) of the said Act before the Government. The Government as appellate authority has power to stay the order impugned in the appeal. Hence, in the normal course the parties should be left to avail of the statutory remedies available to them and the High Court should not derail the procedure contemplated under the statute by directing the W.A.No.355 of 2008 4 statutory authority not to implement the order passed by it. We find force in the above submissions of the learned counsel for the appellant. We are of the view that, unless there are special circumstances which would indicate that the authorities will not act bona fide and fairly and will deliberately delay the communication of the order of supersession so that the members of the committee will not get an opportunity to file appeal and seek stay of the order before the Administrator takes charge, this Court will not be justified in exercising the power under Art.226 of the Constitution to direct the statutory authority not to implement its order even for a limited period. In the absence of such special circumstances, the court should leave the matter to be dealt with by the statutory authorities in accordance with the provisions of the statute. Even if such special circumstances exist the court should refer to such special circumstances and record its satisfaction about the need for issuing a direction not to implement the order of the statutory authority passed under S.32 of the Act. A mere apprehension of the members of the committee that the order of the Joint Registrar is likely to be against the committee or that the Administrator may take charge of the management of the society before the superseded committee files appeal and seeks stay, is not a sufficient or valid ground or justification for directing the Joint Registrar not to implement his order under S.32 of the Act.” 6. In a multi Judges' Court, an order passed by a Division Bench of this Court is binding on the other Division Benches. If for any reason, a Division Bench of this Court is of the opinion that the law declared by the other Division Bench is either contrary to the statutory provision or contrary to the dicta laid down by the apex Court or for other special circumstances, may refer the W.A.No.355 of 2008 5 matter to a Larger Bench for a decision. It is subversion of judicial process not to follow this procedure. 7. In the instant case, the petitioner in too many places has commented upon the hasty way in which the authorities have proceeded to issue Section 32 notice to the petitioner society. However, nowhere in the pleadings it is stated that the Joint Registrar of Co-operative Societies will not act bona fide and fairly and will not communicate the order to the petitioner society. These allegations require not only to be pleaded but also to be argued, urged and proved by the person who makes those allegations. In fact, Sri. George Poonthottam has taken us through several paragraphs of the writ petition that is filed by the petitioner society before the learned Single Judge. After going through the pleadings, we are of the clear opinion that the ingredients that this Court has said in Narayanan Nair's case, are neither pleaded, nor argued, nor urged by the petitioner society. In that view of the matter, we are expected to follow the decision of this Court wherein it has stated that this Court is not justified in issuing a peremptory order by directing the authorities under the Act to keep their order in abeyance once it is passed under Section 32 of the Act. 8. In the instant case, the learned Single Judge while granting opportunity to the petitioner society and the contesting respondent to file their objections, if any, to the show cause notice issued by the Joint Registrar of Co-operative Societies under Section 32 of the Act, ought not to have directed the Joint Registrar to keep his order in abeyance for a period of two weeks after the orders are passed. The observation and the direction issued by the learned Single Judge goes contrary to the law declared by the Division Bench of this Court. Therefore, we cannot sustain the latter portion of the orders W.A.No.355 of 2008 6 passed by the learned Single Judge. Therefore, while confirming the former portion of the order passed by the learned Single Judge, we delete the latter portion of the order, where he has directed the Joint Registrar of Co-operative Societies to keep his order in abeyance for a period of two weeks. However, we make it clear that the Joint Registrar after passing an order under Section 32 of the Act shall communicate the same to the parties to the lis forthwith. With these observations and directions, the writ appeal is disposed of. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE vns/dk.