IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
THURSDAY, THE 3RD DAY OF JANUARY 2013/13TH POUSHA 1934
WP(C).No. 349 of 2013 (P) -------------------------
PETITIONERS:
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1. E.K.SASI, AGED 60, S/O.KARUNAKARAN, ERETHARA HOUSE, THALAYAZHAM P.O, VAIKOM.
2. THANKACHAN, AGED 48, S/O.THANKAPPAN, KAMBIYIL HOUSE, VECHOOR P.O, VAIKOM.
3. JOSEPH EDATHIL, AGED 73, S/O.OUSEPH, EDATHIL HOUSE, THALAYAZHAM P.O, VAIKOM.
BY ADVS.SRI.T.A.SHAJI (SR.) SRI.M.A.ASIF
RESPONDENTS:
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1. THALAYAZHAM SERVICE CO-OPERATIVE BANK LTD. NO.509, THALAYAZHAM P.O, VAIKOM, REPRESENTED BY ITS SECRETARY K.O.JOS, PIN – 686607.
2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOTTAYAM, PIN 686 002.
3. THE ASSISTANT REGISTRAR (GENERAL), CO-OPERATIVE SOCIETIES, VAIKOM – 686 141.
4. K.KUMARAN, AGED 45 YEARS, S/O.KUTTAPPAN CHATHUKKOPALLITHARA, THALAYAZHAM P.O, KOTTAYAM, PIN 686 607.
5. B.L.SEBASTIAN, AGED 47 YEARS, S/O.LUKA, BHAGAVATHYPARAMBU HOUSE, THALAYAZHAM P.O, KOTTAYAM, PIN – 686 607.
6. T.N.ANIL KUMAR, AGED 39 YEARS, S/O.NANAPPAN, THOTTUCHIRA HOUSE, THALAYAZHAM P.O, PIN – 686 607.
R2 & R3 BY SPECIAL GOVERNMENT PLEADER SRI D.SOMASUNDARAM R1 BY ADVOCATE SRI S.RAJ MOHAN R4 TO R6 BY ADVOCATE SRI T.R.HARIKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 349 of 2013 (P)
## **A P P E N D I X**
PETITIONERS' EXHIBITS
EXT.P1: TRUE COPY OF THE REPRESENTATION DATED 05.07.2012.
EXT.P2: TRUE COPY OF THE CLAUSE 4 AND 5 OF THE BYELAWS OF THE 1ST RESPONDENT BANK.
EXT.P3: TRUE COPY OF THE JUDGMENT DATED 25.07.2012 IN W.P(C) NO.16532 OF 2012.
EXT.P4: TRUE COPY OF THE CERTIFICATE DATED 03.07.2012 SAID TO BE ISSUED BY THALAYAZHAM GRAMA PANCHAYAT.
EX.P5: TRUE COPY OF THE LETTER NO.5872/12 DATED 26.12.2012 ISSUED BY THE SECREATRY OF THALAYAZHAM SPECIAL GRADE GRAMA PANCHAYAT.
EXT.P6: TRUE COPY OF THE NOTICE OF THE 3RD RESPONDENT DATED 26.07.2012. EXT.P7(a):TRUE COPY OF THE NOTICE DATED 19.10.2012 ISSUED ON THE 1ST PETITIONER.
EXT.P7(b):TRUE COPY OF THE NOTICE DATED 19.10.2012 ISSUED ON THE 2ND PETITIONER.
EXT.P8(a):TRUE COPY OF THE SALE DEED NO.296 OF 2009 OF VAIKOM SUB REGISTRY OF THE 1ST PETITIONER.
EXT.P8(b):TRUE COPY OF THE EMPLOYMENT CERTIFICATE DATED 5.8.2012 OF THE SECOND PETITIONER.
EXT.P9: TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT BEARING NO.CRP(2) 5334/12 DATED 12.11.2012.
/TRUE COPY/
P.A TO JUDGE
## **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.349 of 2013-P ---------------------------------------------------Dated this the 3[rd] January, 2013**
## **J U D G M E N T**
The petitioners challenge Ext.P9 order passed by the 2[nd] respondent holding that a number of persons including them, were ineligible to continue as members of the Co-operative Bank.
It is contended by the learned Senior Counsel Sri T.A.Shaji, who appears for the petitioners, that the power to remove persons who have already become members is conferred only on the Managing Committee of the 1[st] respondent as per Rule 16(3) of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as `the Rules' for short). Therefore, the order Ext.P9 is absolutely without jurisdiction. Apart from the above, it is contended that a person is eligible to become a member, in all cases where he either resides permanently within the area of operation of the Society or owns immovable property within the said area. Reliance is placed on Ext.P5 sale deed to point out that the 1[st] petitioner owns properties within the area of operation of the 1[st] respondent Society. However, the notices issued by the 2[nd] respondent had required a person to produce
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only proof of the fact that the concerned person was carrying on business within the area of operation. In the absence of any such proof, the person has been disqualified. In view of the above, it is contended that an essentially relevant fact has been omitted to be considered while issuing Ext.P9. It is also contended that the impugned proceedings are politically motivated and are bereft of bona fides.
2. The learned Special Government Pleader Sri D.Somasundaram who appears for respondents 2 and 3 opposes the contentions of the learned counsel for the petitioners pointing out that Ext.P9 is a well considered order where objections against as many as 1627 members were considered by the 2[nd] respondent. An enquiry was conducted, initially through the Assistant Registrar and thereafter by the Joint Registrar directly. The persons against whom objections were raised, were given sufficient opportunity for producing evidence in support of their claims for membership and to disprove the allegations against them. They were also personally heard. After considering all the aspects it was found that complaints against a number of persons were baseless and therefore rejected. Only some of the persons who were found to
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be ineligible have been disqualified. For the above reasons, it is contended that Ext.P9 does not call for any interference at the hands of this Court. Apart from the above, according to the learned counsel for the petitioners, the order Ext.P9 has been issued in exercise of the power under Section 66 of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as `the Act'). The supervisory power available to the Registrar as well as the 2[nd] respondent sufficiently empowers the said authorities to issue an order in the nature of Ext.P9, it is contended. Since Ext.P9 is an order issued under Section 66 of the Act, it is also pointed out that the same is amenable to correction in exercise of the right of appeal provided in Section 83(1) (j) of the Act.
3. Advocate T.R.Harikumar appears for respondents 4 to 6 and Advocate S.Rajmohan appears for the 1[st] respondent. I have heard the learned counsel appearing for the contesting parties at length. I have been taken through the relevant provisions of the Act and the Rules. I have considered the rival contentions anxiously.
4. It is the contention of the learned Senior Counsel Sri T.A.Shaji, who appears for the petitioners, that though Ext.P9 is issued in purported exercise of the power under Section 66 of
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the Act, the said provision does not confer the power to pass an order in the nature of Ext.P9. According to the learned counsel, this Court has held in the decision reported in **Porinchu v. Joint Registrar of Co-op.Societies** [2009(4) KLT 105] that, once a person has been granted membership in a society, even if the grant of such membership is illegal, he can be removed only by following one of the procedures laid down by Sub Rules 3 or 4 of Rule 16. For the above reason, it is contended that the exercise of power by the Registrar is unsustainable.
5. It is true that Rule 16(3) & (4) stipulates the manner in which a person already admitted to the membership of a Cooperative Society can be removed. Sub Rule 3 of Rule 16 confers power on the Committee of the Society to remove such members. Sub Rule 4 deals with the power of a Registrar to exercise a like power. However, the learned Senior Counsel points out that the power under Sub Rule 4 of Rule 16 that is available to the Registrar does not extend to a disqualification at the inception of the membership and that the power of the Registrar can apply only to a subsequent disqualification. In view of the above distinction, it is contended that Ext.P9 order cannot be sustained under Rule 16(4) also. However, it is worth noticing that Ext.P9
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specifically states that the said order has been issued in exercise of the power under Section 66 of the Act. Even assuming the exercise of such power to be without authority or in excess of the power conferred, it has to be held that such errors would have to be corrected in the first place in exercise of the statutory remedy that has been provided by the Act. It is certainly open to the petitioners to challenge the impugned order Ext.P9 alleging all the grounds set forth in this Writ Petition, by invoking the remedy under Section 83(1) (j) of the Act. Since the remedy by way of an appeal is available to the petitioners, I refrain from considering the contentions noted above, that were raised and argued before me touching the merits of the case. It is also worth noticing that the factual questions on the basis of which the impugned decisions in Ext.P9 have been taken are better decided by the statutory authority that has been conferred with the power to do so by the Act.
For the above reasons, I decline interference and relegate the petitioners to their statutory remedy under the Act. It is made clear that I have not expressed any opinion on the merits of the rival contentions raised before me.
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## **W.P(c) No.349 of 2013-P**
This Writ Petition is accordingly dismissed.
_**(K.SURENDRA MOHAN, JUDGE)**_
rtr/
