Educational Empowerment and Welfare Co-operative Society, Kannur Ltd v. Joint Registrar of Co-operative Societies (General), Kannur; Registrar of Co-operative Societies, Thiruvananthapuram; State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937 WP(C).No. 29286 of 2015 (I) ---------------------------- PETITIONER: --------------- THE EDUCATIONAL EMPOWERMENT AND WELFARE CO-OPERATIVE SOCIETY, KANNUR LTD NO C 1570, VICHITHRA COMPLEX, KALTEX, KANNUR 2, REP BY ITS SECRETARY BY ADVS.SRI.SURESH KUMAR KODOTH SMT.HEMALATHA SRI.K.P.ANTONY BINU RESPONDENTS: - ------------------ 1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANNUR, KANNUR P O- 670 002. 2. REGISTRAR OF CO-OPERATIVE SOCEITIES, - THIRUVANANTHAPURAM-695 001 ## 3. STATE OF KERALA REP BY ITS SECRETARY, DEPARTMENT OF CO-OPERATION THIRUVANANTHAPURAM 695 001 R1-R3 BY ADV. SRI. G. GOPAKUMAR, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29286 of 2015 (I) -------------------------------- : 2 : ## **APPENDIX** PETITIONER'S EXHIBITS : ---------------------------- P1:-TRUE COPY OF THE REGISTERED BYE LAW IN RESPECT OF THE PETITIONER SOCEITY ALONG WITH ENGLISH TRANSLATION. P1(A):-TRUE COPY OF THE BYE LAW AMENDING BY WAY OF INSERTING CLAUSE 3Y APPROVED BY THE FIRST RESPONDENT AS PER PROCEEDING NO 6104/13/O ALONG WITH ENGLISH TRANSLATION. P2:-TRUE COPY OF THE RESOLUTION ALONG WITH ENGLISH TRANSLATION. P3:-TRUE COPY OF PROCEEDING OF IST RESPONDENT DTD 24/11/2014. P4:-TRUE COPY OF CIRCULAR NO 16/2014 ALONG WITH ENGLISH TRANSLATION. P5:-TRUE COPY OF CIRCULAR NO 21 OF 2009 ALONG WITH ENGLISH TRANSLATION. P6:-TRUE COPY OF THE LETTER DTD 7/2/2015. P7:-TRUE COPY OF THE COMMUNICATION DTD 22/4/2015. P8:-TRUE COPY OF THE REVISION PETITION ALONG WITH ENGLISH TRANSLATION. P9:-TRUE COPY OF CHALLAN RECEIPT FOR PAYMENT OF FEE. P10:-TRUE COPY OF APPLICATION FOR CONDONATION OF DELAY. P11:-TRUE COPY OF LETTER DTD 24/7/2015 ALONG WITH ENGLISH TRANSLATION. RESPONDENTS' EXHIBITS : NIL ------------------------------ /True Copy/ P.A to Judge. rv DAMA SESHADRI NAIDU, J. ---------------------------------W.P. (C) No. 29286 of 2015 ---------------------------------Dated this the 29[th] day of January, 2016. JUDGMENT The petitioner, a Co-operative Society has assailed Ext.P3 order of the first respondent and Ext.P11 order of the third respondent, through which the respective authorities refused to grant approval to the petitioner's Ext.P2 resolution for having a housing scheme. 2. The facts in brief are that the petitioner is a Co-operative Society classified as a social welfare society having, among other things, an objective of promoting the welfare of the teaching and non-teaching staff of the educational institutions spread across three Taluks in Kannur District. It had its Ext.P1 bye-law initially registered on 19.01.2002. In the course of time, having amended the said bye-law through Ext.P1(a), it had them again registered on 20.12.2013. On the strength of the registered bye-law, the petitioner society passed Ext.P2 resolution as regards the housing scheme and sought the first respondent's approval. 3. As can be seen from the record, the first respondent, W.P.(C.) No.29286/2015 -2- through Ext.P3, refused to approve Ext.P2 resolution essentially on the premise that the loan the society has proposed to extend to its members crosses the upper limit fixed in Circular No.21 of 2009. At a later point of time, though the petitioner filed a revision invoking Section 87 of the Kerala Co-operative Societies Act (the Act), the third respondent, the Government, rejected it on the grounds that it was barred by limitation and there was no provision for condoning the delay. Aggrieved, the petitioner has filed this writ petition. 4. Sri. Suresh Kumar Kodoth, the learned counsel for the petitioner, has submitted that Ext.P2 is in accordance with the regnant regulations governing the petitioner society. In elaboration, he has submitted that through Ext.P4 circular, the Government has already raised the limit of housing loan to `25,00,000/- from `10,00,000/-, which was the initial amount fixed through Ext.P5 circular. He has further contended that in the face of Ext.P1(a) amended bye-law, the society is competent to float a housing scheme and provide the necessary benefit to its members. 5. As regards Ext.P11 order of rejection passed by the third respondent in appeal filed by the petitioner, the learned counsel W.P.(C.) No.29286/2015 -3- contends that initially the petitioner filed an appeal before the second respondent, who, in turn, through Ext.P6 directed the petitioner to approach the very first respondent, who passed Ext.P3, by filing a review. Under those circumstances, at a later point of time, the petitioner filed Ext.P6 statutory revision before the Government invoking Section 87 of the Act. 6. It is the singular contention of the learned counsel for the petitioner that initially the petitioner has bona fide approached the second respondent well within the time by filing an appeal; nevertheless, the said authority has directed the petitioner to approach the primary authority. According to the learned counsel, the delay, if any, has been occasioned bona fide, especially while the petitioner was pursuing a right remedy, perhaps, before a wrong forum. Under those circumstances, the third respondent, contends the learned counsel, ought to have entertained the petitioner's statutory revision application. 7. Per contra, the learned Government Pleader has strenuously defended both Exts.P3 and P11 orders of the first and third respondents respectively. To begin with, the learned Government W.P.(C.) No.29286/2015 -4- Pleader has contended that, as can be seen from Ext.P2, the petitioner society has proposed to extend the housing loan to its members beyond `10,000,00/-, to be precise `25,00,000/-. He has also submitted that the very project is unviable and the society has not put much thought on it. 8. In elaboration of his submissions, the learned Government Pleader has also contended that the major objective of the society is to undertake the welfare activities for its members. The construction of houses in the land owned by the society for and on behalf of the members or in the land owned by the members and provide advance for such construction etc. are not the functions of a Social Welfare Society. 9. The learned Government Pleader has further drawn my attention to the fact that the deposit outstanding as on 31.03.2013 was `16.53 crores as against the outstanding loans of `13.50 crores. According to him, the balance of `3 crores is not sufficient for the project the petitioner society has intended to undertake. Finally, the learned Government Pleader has contended that given the very nature of the scheme proposed by the petitioner Bank, it requires to interact W.P.(C.) No.29286/2015 -5- and co-ordinate with private agencies, who alone have expertise in the field of construction, but unfortunately, the provisions of the Act or the Rules made thereunder do not permit the petitioner society to undertake any such venture in collaboration with private entities. 10. Heard the learned counsel for the petitioner society and the learned Government Pleader, apart from perusing the record. 11. At the outset, Ext.P3 order of rejection passed by the primary authority is very cryptic. The sole ground that has weighed with the authority is that the petitioner society had intended to extend housing loan to its members to a tune of `25,00,000/-, which according to the said authority is impermissible. Indeed, the rest of the grounds, as a matter of an afterthought, have been raised in the counter affidavit. It is too well established to be caviled about, as has been emphatically laid down by a Constitution Bench of the Hon'ble Supreme Court in Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others[1] ~~,~~ that while considering the validity of an impugned order, the reasons assigned therein alone shall be taken into account, but not the supplemental reasons supplied thereafter by the authorities. Accordingly, this Court 1 AIR 1978 SC 851 W.P.(C.) No.29286/2015 -6- confines its discussion to the grounds espoused by the first respondent in Ext.P3. 12. As has rightly been contended by the learned counsel for the petitioner, through Ext.P4 circular, initially the housing loan limit was fixed at `10,00,000/-. At any rate, later, through Ext.P4 circular, it was raised to `25,00,000/-. Under those circumstances, it cannot be said that Ext.P2 resolution passed by the petitioner society suffers from any incurable latches or legal infirmities. 13. Though the third respondent has refused to entertain the statutory revision on technical grounds, namely that it is barred by limitation and that there is no provision for condoning the delay, I am of the considered opinion that the petitioner's conduct is bona fide. Within the time permitted i.e., three months, the petitioner filed an appeal, as is evident from Ext.P6, before the second respondent, the Registrar. Later, having realised that it is the third respondent, the competent authority, to consider, he filed Ext.P8 revision and thus occurred certain delay. In other words, the petitioner did file an appropriate application, but before a wrong authority. Thus, it is, therefore, at best a remedy pursued bona fide before a wrong forum, W.P.(C.) No.29286/2015 -7- which shall not, in my considered view, deprive the petitioner of his statutory remedy. 14. At any rate, this Court has been seized of the issue under Article 226 of the Constitution of India. To render complete justice, it is always advisable to consider the issue on merits, rather than let a just cause perish on the altar of technicalities. 15. Under those circumstances, having examined the issue on merits, this Court is of the opinion, for the reasons mentioned above, that Ext.P3 order passed by the first respondent and the consequential Ext.P11 order cannot be sustained. As a result, they are set aside. As a natural corollary, this Court directs the first respondent to consider the petitioner's Ext.P2 proposal and take an appropriate decision in that regard confining the objective that had already been raised in Ext.P3 order, and pass further orders, keeping in view the decision rendered presently. This writ petition is disposed of as above. sd/-DAMA SESHADRI NAIDU, JUDGE. rv W.P.(C.) No.29286/2015 -8-