Board of Directors of the Kizhuvilam Service Co-operative Bank Ltd. No.2405 represented by its President v. Unit Inspector Attingal, Office of the Assistant Registrar of Co-operative Societies (General), Chirayinkeezh; Joint Registrar of Co-operative Societies (General), Thiruvananthapuram; Registrar of Co-operative Societies, Thiruvananthapuram; P. Azeez Masstanvila Veedu, Mudapuram P.O., Chirayinkeezhu; Alen S aged 39 years (Membership No.12859).

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941** **WA.No.237 of 2019** **AGAINST THE JUDGMENT IN WP(C) 41332/2017 of HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **THE BOARD OF DIRECTORS OF THE KIZHUVILAM SERVICE CO-OPERATIVE BANK LTD. NO.2405 REPRESENTED BY ITS PRESIDENT, MUDAPURAM P.O., CHIRAYINKEEZH, THIRUVANANTHAPURAM DISTRICT-695 304.** **BY ADVS. SRI.T.R.HARIKUMAR SRI.ADITHYA RAJEEV SRI.ARJUN RAGHAVAN SRI.JAIBY PAUL** ## **RESPONDENTS/RESPONDENTS:** **1 THE UNIT INSPECTOR ATTINGAL, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CHIRAYINKEEZH, THIRUVANANTHAPURAM-695 604.** - **2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THIRUVANANTHAPURAM-695 001.** - **3 THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM-695 001.** - **4 P.AZEEZ MASSTANVILLA VEEDU, MUDAPURAM P.O., CHIRAYINKEEZHU, THIRUVANANTHAPURAM-695 304.** **WA. No.237 of 2019** **2** **5 ALEN S AGED 39 YEARS (MEMBERSHIP NO.12859), S/O SAHADEVAN, KOCHUVEEDU, KOONTHALOOR, MUDAPURAM P.O., CHIRAYINKEEZH, THIRUVANANTHAPURAM-695 304.** **BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SMT.ALICE THOMAS SMT.M.C.SINY SMT.SMITHA S.PILLAI SRI.P.K.MANOJKUMAR SPL. GOVT. PLEADER SRI.MOHMMED HASHIM** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA. No.237 of 2019** **3** **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Ravikumar, J.**_ This appeal is directed against judgment dated 16.01.2019 in W.P.(C) No.41332/2017. The appellant herein was the petitioner therein. He filed the said writ petition seeking quashment of Exts.P3, P5 and P6. Ext.P3 is an order passed by the Joint Registrar of Co-operative Societies (General) expanding the scope of the inquiry already ordered under Section 66 of the Kerala Co-operative Societies Act, 1969 ('KCS Act', for short). Obviously, pursuant to a decision to conduct an inquiry and inspection in the appellant's Society as per Ext.P3, what was done thereunder was only an expansion of the scope of inquiry by bringing in more matters for inquiry based on the further complaints received. Ext.P4 is an order passed by the same **WA. No.237 of 2019** **4** authority extending the period of inquiry. Ext.P6 is the report submitted by the inquiry officer appointed to inquire into the said matters under Section 66 of the KCS Act. 2. The 2[nd] respondent and the additional 5[th] respondent in the writ petition had filed separate counter affidavits in the writ petition essentially, refuting the claims and contentions of the appellant/petitioner and seeking for dismissal of the writ petition. 3. The learned Single Judge considered the rival pleadings and contentions and disposed of the writ petition as per the impugned judgment after referring to the decisions of the Apex Court in _**State of U.P. v. Brahm Datt Sharma** [(1987) 2 SCC 179],_ _**Seimens Ltd. v. State of Maharashtra** [(2006) 12 SCC 33]_ and _**Union of India v. Vicco Laboratories** [(2007) 13 SCC 270]_ . The learned Single Judge held that no interference is required at the stage of issuance of notice by an authority concerned. Paragraph 16 of the impugned judgment would reveal that evidently, the parties to the writ petition did not press into **WA. No.237 of 2019** **5** service the rival contention and thereby, agreed for a disposal of the writ petition with a direction to the 2[nd] respondent to consider and pass appropriate orders in accordance with law on Ext.P7. Evidently, the learned Single Judge has also permitted the petitioner to submit additional explanation raising all legal and factual contentions to supplement the contentions already taken in Ext.P7. In such circumstances, contentions by way of additional explanation are also to be considered, if it is filed, along with the contentions taken up in Ext.P7. Consequently, the writ petition was disposed of with appropriate directions. It is the aforesaid judgment in W.P. (C) No.41332/2017 disposed on the aforesaid lines that is under challenge in this appeal. 4. A glance at the pleadings in the appeal would reveal that many contentions have been taken up by the appellant. Besides reiterating the contentions taken in the writ petition, an additional legal contention was also taken up in the appeal. As noticed hereinbefore, evidently in this case **WA. No.237 of 2019** **6** inquiry and inspection was ordered invoking the provisions under Section 66 of the KCS Act. Thereafter, as per Ext.P3, the scope of inquiry was expanded and evidently, invoking the power under Section 66(3) of the Act, the time for inquiry was also extended. Ext.P6 is a report submitted after the culmination of the inquiry and the Registrar, on receipt of Ext.P6, issued Ext.P5 calling for explanation of the petitioner/appellant. It is to be noted that the petitioner is the Board of Directors of the Society in question. Immediately on receipt of Ext.P5 along with Ext.P6, Ext.P7 explanation was submitted by the petitioner. In the said contextual situation, it is only relevant to refer to paragraph 16 of the impugned judgment and it reads thus:- _“Learned counsel for the petitioner would submit that the petitioner, who has already submitted Ext.P7 explanation before the 2nd respondent, on receipt of Ext.P5 notice, shall submit an additional explanation raising all legal and factual contentions, which may also be directed to be considered along with Ext.P7 by the 2nd_ **WA. No.237 of 2019** **7** _respondent, before taking a decision as to whether any further course has to be taken based on the findings in Ext.P6 inquiry report submitted by the 1st respondent.”_ _(Underline supplied)_ 5. A bare perusal of paragraph 16 would thus suggest that the petitioner had also virtually sought only for disposal of the writ petition with direction to the 2[nd] respondent to consider Ext.P7. It would also reveal that based on submissions made on behalf of the petitioner, the petitioner was also granted liberty to file additional explanation. It is relevant to note that paragraph 16 would reveal that the petitioner was permitted not only to take up factual contentions but also legal contentions in such additional explanation, if the petitioner is so desirous to file. 6. None the less, the petitioner got a further grievance that the learned Single Judge had already entered into clear findings with respect to certain issues involved in the case, on merits taking note of the rival contentions. Obviously, the contention of the petitioner is that such **WA. No.237 of 2019** **8** findings of the learned Single Judge would hamper the prospects of the petitioner before the Registrar while Ext.P7 taking up for consideration. We do not find any merit in the above contention. According to us, it is only an apprehension. The last paragraph in the impugned judgment also assumes relevance in the context of the contentions raised in this appeal. It reads as follows:- _“It is made clear that this Court has not expressed anything on the merits of the rival contentions and any observations contained in this judgment touching the merits of the rival contentions are made for the sole purpose of disposal of this writ petition.”_ In unambiguous terms, the learned Single Judge made it very clear that any observations made in the impugned judgment touching the merits, were made solely for the purpose of disposal of the writ petition and on merits of the rival contentions, no observation was, in fact, made under the said impugned judgment. In the light of the said **WA. No.237 of 2019** **9** paragraph, it is evident that Ext.P7 and additional explanation, if submitted, based on the findings in Ext.P6 report are to be considered by the authority untrammelled by observations, if any, made in the impugned judgment. When that be the position, we do not find any reason to interfere with the impugned judgment. We also make it clear that it would be open to the petitioner to take up all legal and factual contentions untrammelled by any observation made in the impugned judgment at the time of consideration of Ext.P6 in the light of Ext.P7 explanation and the additional explanation filed, if any. Needless to say that before passing any such orders based on the impugned judgment, all parties including the additional 5[th] respondent shall be put on notice. The decision based on the impugned judgment subject to the observation and this judgment shall be made by the 2[nd] respondent, as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. Additional explanation, if not already filed carrying all legal and factual contentions, will be **WA. No.237 of 2019** **10** filed by the petitioner within a period of one week. Writ appeal is disposed of as above. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks/26.07.2019 **WA. No.237 of 2019** **11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **ANNEXURE I** **TUE COPY OF THE REFERENCE ORDER DATED 14.8.2018 IN W.A.NO.1554 OF 2017 AND WPC NO.36951 OF 2017.**