IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 33993 of 2007(Y) -------------------------- PETITIONER(S): ------------------ THE BOARD OF DIRECTORS OF THE KUTHIATHODE RURAL HOUSING CO-OPERATIVE SOCIETY LTD NO.A.691, P.O. KUTHIATHODE, ALLEPPEY, REPRESENTED BY ITS PRESIDENT, C.P. MICHAEL. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): ------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ALLEPPEY. ADDL.R2. SYAMA PRASAD, PATTANAMCHERRIL, EZHUPUNNA SOUTH, CHERTHALA. ADDL.R3. BAHULEYAN, THUNDIYIL, EZHUPUNNA SOUTH, CHERTHALA. (ADDL.R2 AND R2 ARE IMPLEADED AS PER ORDER IN IA NO.47/2008 DATED 26/6/2009) ADV. SRI.P.P.JACOB FOR R2-3 GOVERNMENT PLEADER SRI.MOHAMMED HASHIMFOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.33993/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE NOTICE NO.HM 385/2007 DT 3.11.2007. EXT.P2: TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DT 14.11.2007. EXT.P3: TRUE COPY OF THE PROCEEDINGS NO.V.(E) 15/03 DT 31.3.2003. EXT.P4: TRUE COPY OF THE JUDGMETN IN WPC 18990/2003 DT 18.6.2003. EXT.P5: TRUE COPY OF THE ORDER NO.H.M.998/03 DT 8.7.2003. EXT.P6: TRUE COPY OF THE GO(RT) NO.123/05/CO-OP. DT 1.3.2005. EXT.P7: TRUE COPY OF THE JUDGMENT IN WPC NO.39676/2003 DT 12.2.2007. EXT.P8: TRUE COPY OF THE ORDER IN WPC NO.26136/06 DT 10.10.2006. EXT.P9: TRUE COPY OF THE ORDER NO.A186/2007 DT 7.2.2007. EXT.P10: TRUE COPY OF THE ORDER NO.HM-385/07 DT 24.7.2007. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 33993 OF 2007 (V) ===================== Dated this the 26th day of June, 2009 J U D G M E N T Petitioner seeks to quash Ext.P1 and a declaration that the Board of Directors of the petitioner society are entitled to continue in office till the expiry of the term is also sought for. 2. Ext.P3 dated 31/3/2003 is the report of the Deputy Registrar, Vigilance, Ernakulam reporting certain irregularities in the society, of which the petitioners are the members of the Board of Directors. The irregularities reported in Ext.P3 inter alia includes the purchase and disposal of 74.50 cents of land. At that stage, one of the affected parties, filed a writ petition before this Court as WP(C) No.18990/03. That writ petition was disposed of by Ext.P4 judgment where submission of the learned Government Pleader that based on Ext.P3, an enquiry was initiated and that the same will be completed with notice to the parties within 3 months was recorded. 3. Pursuant to the report of enquiry, as per Ext.P5, an enquiry under Section 65 was ordered by the Joint Registrar. Report was filed and finally proceedings were initiated under WPC 33993/07 :2 : Section 68 of the Act and surcharge was imposed. In fact, at that stage in WP(C) No.39676/03, filed before this court complaining inaction on the report submitted, this Court recorded the levy of surcharge as per Ext.P7 judgment. It is to be mentioned in this context that although the proceedings covered the various irregularities, surcharge was levied only on the ground that the members of the Board of Directors were found to have acted irregularly in the matter of payment of excess interest alone, which necessarily means that rest of the allegations were given a go by. 4. Levy of surcharge was challenged before the Government and the Government passed Ext.P6 order disposing the appeal and dropping the proceedings levying surcharge. Thus, the irregularities alleged in Ext.P3 vigilance report, Ext.P5 order for enquiry under Section 65 and the report under Section 65 and the levy of surcharge under Section 68 of the Act attained finality as per Ext.P6 where the surcharge levied was also dropped. 5. The present complaint of the petitioners is that although finality has thus been attained to the proceedings, still the issues are being raked up on a periodical basis and fresh WPC 33993/07 :3 : proceedings are initiated. It is stated that pursuant to Ext.P9, an inspection as per Section 66 was ordered based on the very same allegations, but however, the report was in favour of the petitioners. Again there after, in cancellation of the said report, yet another enquiry under Section 65 was ordered as per Ext.P10 order dated 24/7/07. Apparently, based on the report that was received, Ext.P1 notice was issued under Rule 66(5) of the Kerala Co-operative Societies Rules calling upon the petitioners to show cause why they shall not be proceeded against. A reading of Ext.P1 shows that there are seven allegations which are already the subject matter of the vigilance report, the earlier Section 65 proceedings and culminating in the levy of surcharge and Ext.P6 Government Order. The contention raised is that once the proceedings have culminated with Ext.P6, it was impermissible to have raked up the issues once again. 6. Although an attempt was made before me to show that in the subsequent enquiries, new issues are also subject matter, I am not impressed with that argument. As already noticed, of the various allegations, only the allegation resulting in surcharge was the alleged erroneous payment of interest and that also was WPC 33993/07 :4 : dropped by the Government. Once that has been done, proceedings have attained finality and if that be so, there is no reason to have raked up issues once again. On behalf of the additional respondents, it was contended that the petitioners have not challenged Section 65 enquiry report and therefore, it was not permissible for them to challenge Ext.P1, the notice issued under Rule 66(5). As is evident from Rule 66(5), if any action is to be taken against any person based on a report, such person should be given notice and an opportunity to make his representations. On that basis, an order is required to be passed. The allegations in Ext.P1 notice are those contained in Section 65 enquiry report. Now that this Court has found the allegations in Ext.P1 notice to be unsustainable, it is not necessary for the petitioners to have separately challenged Section 65 enquiry report, which contains nothing but these allegations only and which has not been disclosed to them. Therefore Ext.P1 will stand quashed ad the writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp