Jayaraja A.K. and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **TUESDAY, THE 25TH DAY OF JUNE 2019 / 4TH ASHADHA, 1941** ## **WP(C).No.16304 of 2019** ## **PETITIONERS:** |**1**|**JAYARAJA A.K.**| |---|---| ||**AGED 30 YEARS**| ||**S/O.AITHAPPA K., RESIDING AT CHOORITHADKA HOUSE,**| ||**BAMBARA (P.O), KASARAGOD DISTRICT, PIN-671321.**| - **2 BALAKRISHNA RAI, AGED 55 YEARS S/O.CHIKKAPPA RAI, RESIDING AT BANOTTU HOUSE, PAIVALIKE (P.O.), KASARAGOD DISTRICT, PIN-671348.** - **3 KRISHNAN ADUKKATHOTTI, AGED 65 YEARS S/O.KUNHIRAMAN, RESIDING NEAR GOVINDA PAI MEMORIAL COLLEGE, MANJESHWARAM (P.O.), KASARAGOD DISTRICT, PIN-671323.** **BY ADVS. SHRI.JAWAHAR JOSE SMT.CISSY MATHEWS SRI.SARUN RAJAN** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, CO-OPERATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.** - **2 THE REGISTRAR OF CO-OPERTIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, D.P.I.JUNCTION, THYCAUD (.P.O), THIRUVANANTHAPURAM, PIN-695014.** - **3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CIVIL STATION (P.O.), KASARAGOD, PIN-671123.** - **4 THE MANJESHWARAM PRIMARY CO-OPERATIVE AGRICULTURAL RURAL DEVELOPMENT BANK, UPPALA (P.O.), KASARAGOD DISTRICT, PIN-671322, REPRESENTED BY ITS SECRETARY.** **WP(C).No.16304 of 2019 2** - **5 SOMASHEKHARA J.S., AGED 39 YEARS** - **S/O.JANARDHANA NAYAK, RESIDING AT SHENI HOUSE, SHENI (P.O.), KASARAGOD DISTRICT, PIN-671552.** - **6 MANJUNATHA ALVA, AGED 66 YEARS S/O.RAMAYYA ALVA, RESIDING AT MADVA HOUSE, ICHLAMPADY, KODIYAMME (P.O.), KASARAGOD DISTRICT, PIN-671321.** - **7 MOHAMMED HANEEF, AGED 70 YEARS** **S/O.SEKALI, RESIDING AT SHANAD COMPOUND, CHEVAR, KUDALAMERKALA (P.O.), KASARAGOD DISTRICT, PIN-671324.** - **8 SADASIVA A., AGED 30 YEARS S/O.SUBRAYA NAYAK, RESIDING AT ALCHAR HOUSE, SHENI (P.O.), KASARAGOD DISTRICT, PIN-671552.** - **9 PRADEEP KUMAR SHETTY, AGED 62 YEARS S/O.BHASKARA SHETTY, RESIDING AT VASANTHA BAGH, RAILWAY STATION ROAD, UPPALA (P.O.), KASARAGOD DISTRICT, PIN-671322.** - **10 NUSAIBA, AGED 27 YEARS W/O.ABDULLA NASIR M., RESIDING AT PAIVALIKA HOUSE, PAIVALIKA (P.O.), KASARAGOD DISTRICT, PIN-671348.** - **11 KALYANI, AGED 43 YEARS W/O.LATE VIJAYA, RESIDING AT PAJANGAR HOUSE, MOODAMBAIL (P.O.), KASARAGOD DISTRICT, PIN-671323.** - **12 SHASHIDHARA NAIK, AGED 49 YEARS** **S/O.NARAYANA NAIK, RESIDING AT POYYE HOUSE, VORKADY (P.O.), KASARAGOD DISTRICT, PIN-671323.** - **13 SARA C.H., AGED 35 YEARS** - **D/O.IBRAHIM, RESIDING NEAR K.S.E.B. SUB STATION, BADAJE (P.O.), KASARAGOD DISTRICT, PIN-671323.** ## **BY ADVS.** **WP(C).No.16304 of 2019 3** **SHRI.HARIKRISHNAN S. SRI.MANJUNATH MENON SRI.P.PRIJITH SRI.S.SREEKUMAR (SR.) SRI.THOMAS P.KURUVILLA SRI.P.MARTIN JOSE** **SMT.C.S.SHEEJA, SR.GP, SRI.MARTIN JOSE(R12), SRI.S.SREEKUMAR(R5)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16304 of 2019 4** ## **JUDGMENT** The petitioners are stated to be the members of the 4[th] respondent - Manjeshwaram Primary Co-operative Rural Development Bank (hereinafter referred to as 'the society' for short) as also the members of its Managing Committee, which appears to have been now removed and substituted by an Administrative Committee, for the reasons that I will presently deal with. 2. The petitioners say that the strength of the Managing Committee of the Society was 13 as per the Bye-laws, out of which 6 members resigned on 09/11/2018; and coupled this with an earlier resignation, the quorum of the Managing Committee was lost and therefore, that the competent Joint Registrar of Co- operative Societies issued Ext.P2 order appointing an Administrative Committee to be in charge of the Society. The petitioners say that, however, thereafter the three of such members resiled and impelling an allegation **WP(C).No.16304 of 2019 5** that their resignations were, in fact, manipulated and obtained by the petitioners herein, by making them believe that they are signing documents meant to secure loans to members of the Society, rather than being their resignation letters. 3. The petitioners say that the members who resigned from the Society, thereafter approached this Court by filing W.P(C)No.37404 of 2018, which was ordered through Ext.P3 judgment, wherein they were directed to approach the competent Authority of the Government of Kerala under Section 83(i)(j) of the Kerala Co-operative Societies Act (hereinafter referred to as 'the KCS Act' for short). The petitioners say that pursuant thereto the members, who resiled from their resignation, approached the Government through an Appeal and that Ext.P6 order was thereupon issued by the Government, finding that the resignations were not in order and consequently, setting aside Ext.P2 proceedings ## **WP(C).No.16304 of 2019 6** of the Joint Registrar, appointing the Administrative Committee. The petitioners contend that Ext.P6 order is untenable, since it has been issued without adverting to the necessary provisions of law. 4. Shri.Jawahar Jose, the learned counsel appearing for the petitioners, supplemented the afore narration of facts available on record, by saying that going by Rule 38(3) and 38(4) of the KCS Rules and Section 33 of the KCS Act, once a member of a Managing Committee tenders his/her resignation to the President of the Society, such resignation takes effect immediately and that it cannot be thereafter withdrawn. He relies for support of this submission on a judgment of a learned Judge of this Court in _**Divakaran**_ ## _**v. Joint Registrar of Co-operative Societies**_ _**[2014 (4) KLT 297].**_ According to the learned counsel, therefore, the findings and conclusions of the Government in Ext.P6 order, that the 6 members of the Managing Committee **WP(C).No.16304 of 2019 7** who had submitted resignations to the President, with copies of them marked to the Joint Registrar, could not have been found to have not resigned solely because the President did not place them before the Managing Committee because, on account of the very factum of such resignations, the Managing Committee had lost its quorum and therefore, could not have been convened in terms of law. He says, therefore, that the admitted fact that the members had tendered their resignations to the President, ought to have been seen by the Government to be under Rule 38(3) of the KCS Rules, resultantly warranting action for appointment of an Administrative Committee under Section 33 of the KCS Act. He thus assails Ext.P6 as being illegal and unlawful. 5. Shri.S.Sreekumar, the learned senior counsel instructed by Shri.Martin Jose, submits that he has been instructed to appear on behalf of the 5[th] respondent, who is the ## **WP(C).No.16304 of 2019 8** President of the Managing Committee and that his client has not received any of the resignations, that are involved in this case, at any point of time. The learned Senior Counsel submits that it has been clearly averred by his client in the counter pleadings on record, that none of the other party respondents had approached him with resignation letters and that he had not placed it before any Authority, as has been alleged. He adds that going by the mandate of Rules 35(3) and 35(4) of the KCS Rules, the President, on receipt of a resignation ought to place it before the Managing Committee within a period of seven days and that only thereafter will the resignations come into effect. He says that in this case none of these steps had been taken and that his client had not received any resignations at all; and therefore, that Ext.P6 is completely in order and does not deserve to be intervened or disturbed by this Court through these **WP(C).No.16304 of 2019 9** proceedings. 6. Shri.Thomas Kuruvila, the learned counsel appearing for respondent No.12, submits that the petitioners' challenge against Ext.P6 is without any locus since the question whether his client had resigned or otherwise is a matter between him and the statutory Authorities. The learned counsel submits that it is the specific case of his client, as is evident from the counter affidavit filed by him, that he had not tendered his resignation, but that he was tricked to signing some papers by the petitioners themselves, under the wrong information that it was being used for availing loans by certain other members; but that it was then manipulated by them to make it appear to be a resignation letter and that they then presented it before the Joint Registrar, who acted upon it leading to Ext.P2 order. 7. The learned counsel says that no ## **WP(C).No.16304 of 2019 10** resignation can be tendered to the Joint Registrar as per Rule 38(3) of the KSC Rules, and therefore, that even assuming that his client had done so, it would not amount to a valid resignation under law. He, therefore, prays that Ext.P6 be allowed to operate without any interdiction from this Court. 8. The learned Senior Government Pleader, Smt.C.S.Sheeja in refutation of the submissions made on behalf of the petitioners, submits that, as is evident from Ext.P6, the Government clearly found that the resignations were made by the 6 members to the President, with its copies marked to the Joint Registrar. She says that this was completely unnecessary because the Joint Registrar has no role to play in these matters, but that since the said Registrar himself was convinced that these resignations had been made by the 6 members on their own volition, there was no other option for him but to make an order under Section 33 of the KCS Act; because otherwise, there would ## **WP(C).No.16304 of 2019 11** have been a stalemate for the administration of the Society. She says that in paragraph 5 of Ext.P4, which is a counter affidavit filed by the Joint Registrar in an earlier round of litigation he has explained the true facts as under:- It is submitted that on 09/11/2018, six Managing Committee members 1) Jayaraja A.K. (2) Sara C.H. (3) Krishnan Adukkathotty, (4) Kallyani (5) Shashidhar Naik (6) Balakrishnan Rai of the Manjeshwaram Primary Cooperative Agricultural Rural Development Bank came to the office of the 3rd respondent and handed over the copy of their resignation letters, which were addressed to the President of the Bank. On receiving this, the 3rd respondent authorized Manjeswaram Assistant Registrar, who was in the office at that time, to verify their signature with the signature in the Minutes Book. The Secretary of the bank was directed over telephone to produce the Minutes Book of the Bank in the office of the 3rd respondent. The Secretary of the Manjeshwaram Primary Co-operative Agricultural Rural Development Bank produced Minutes Book. The resignation letter of the 7th petitioner which was in Kannada language was read and the contents was confirmed by our staff knowing Kannada. The Assistant Registrar, Manjeshwaram who was at office for ## **WP(C).No.16304 of 2019 12** official purpose at that time, verified the signature of those who signed in the resignation letter, with their signature in the Minutes Book and confirmed the signature. Therefore, their resignation was confirmed and the 3rd respondent as per Exhibit P2 Proceedings No.O/4405/2018 dated 09/11/2018 appointed Part Time Administrator in the Bank. 9. When I hear the learned counsel for the parties as afore, it becomes indubitable that the essential question in this case is whether there had been any resignation at all. It is only after this issue is properly resolved can the adjunct aspects, as to the manner in which such resignation had to be accepted and as to further consequences thereupon will require to be considered. This is vital because, if after a proper process it is found that there were no resignations at all, then all other considerations become completely unnecessary. 10. Therefore, what the Government ought to have done in Ext.P6 was to first find out if the resignations, as alleged by the ## **WP(C).No.16304 of 2019 13** petitioners herein, were made validly by the petitioners, notwithstanding whether it was handed over to the President or the Joint Registrar, which is only a corollary issue. It is only if the resignations, allegedly made by the 6 members, are found to be genuine and valid, will the other aspects become necessary; particularly because, if the contrary position is established, then whether the resignations were accepted by the President or by the Joint Registrar or whether it has placed before the Committee or otherwise, would be completely irrelevant. 11. Unfortunately going by Ext.P6 order this specific and most requisite enquiry or investigation is completely lacking. Interestingly, Ext.P6 proceeds as if the resignations were valid and that they were handed over to the President with a copy to the Joint Registrar, as has been alleged. The allegations made by the party respondents herein, that no such resignations were ## **WP(C).No.16304 of 2019 14** tendered to the President; that they signed blank papers which were misused by the petitioners herein; that they went to the Joint Registrar being under the wrong impression that they were being invited for securing loans to other members and that they had no idea that these documents will be misused in the manner as has been done in this case have not been considered, let alone been even referred to by the competent Authority, while issuing Ext.P6 order. 12. To confirm that my afore view is without error, I asked the learned Senior Government Pleader to verify from the records available on the files of this case and tell me whether this line of enquiry had been attempted or endeavored by the competent Authority, while issuing Ext.P6. The learned Senior Government Pleader, after doing so, submitted that though it is not specifically so stated, a reading of the order as a whole would indicate that the finding is that the ## **WP(C).No.16304 of 2019 15** resignations were valid and made properly by the 6 members involved. 13. I am afraid that Ext.P6, therefore, in the manner that it is presently worded cannot obtain the imprimatur of this Court, even though it is stated therein that it is the Joint Registrar of Co-operative Societies who have confirmed that he had received the resignations from the 6 members. As I have already said above and to restate it reiteratingly, the fundamental issue that the Authority ought to have considered in Ext.P6 was whether the resignations were validly made and whether the case of the members, who made such resignations, that they were tricked into the same, are true or otherwise. Without such an enquiry all other processes would become untenable and without legs to stand on. 14. In the afore perspective and for the sole reason above, without further entering into the merits of any of the other contentions of the rival parties, I deem it ## **WP(C).No.16304 of 2019 16** appropriate to set aside Ext.P6 order, not because I have affirmatively dealt with its contents; but so as to pave wave for a fresh consideration at the hands of the same, Authority who issued the same, after making an enquiry on the afore lines. 15. Resultantly, this writ petition is allowed to the limited extent as afore and I set aside Ext.P6; consequentially directing the competent Secretary to the Government to reconsider the Appeal filed by the party respondents herein, which led to the said order, after affording necessary opportunity to all sides and after making the enquiry as afore to the validity and genuineness of the resignation letters; and thereafter, issue an apposite order, as expeditiously as is possible but not later than one month from the date of receipt of a copy of this judgment. 16. To obtain an expeditious disposal of the directions in this judgment, I direct the petitioners and respondents 5 to 13, as also ## **WP(C).No.16304 of 2019 17** the Secretary of the 4[th] respondent- Society along with the 3[rd] respondent-Joint Registrar of Co-operative Society, to mark appearance in the Office of the competent Secretary of the Government of Kerala at 11.00 am on 06/07/2019; on which day, the said Secretary will hear the parties, also permitting them to produce and adduce all necessary evidence, as may be necessary for the purpose of the establishment of the validity or otherwise of the resignation letters, and to thereafter issue the final order within the time frame fixed above. 17. Until the afore exercise is completed and the final order issued by the competent Secretary to the Government, the Managing Committee will continue to be in charge of the Society but strictly in the nature of an Administrative Committee acting under the orders of this Court; and therefore, they will take no decisions as to policy matters nor will they admit new members and will be ## **WP(C).No.16304 of 2019 18** subject to every rigour, as would be applicable to an Administrative Committee. Needless to say, they will also not co-opt any member to the Committee until such time as a decision is taken by the competent Secretary of the Government of Kerala in terms of this judgment. This writ petition is thus ordered. **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** MC/29.6.19 **WP(C).No.16304 of 2019 19** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RESIGNATION LETTERS TENDERED BY THE PETITIONERS ALONG WITH THE RESPONDENTS 11 TO 13 TO THE PRESIDENT OF THE SOCIETY (TOGETHER WITH THE TRANSLATION). EXHIBIT P2 TRUE COPY OF THE ORDER DATED 9.11.2018 ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETY. EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 6.2.2019 IN W.P.(C) NO.37404/2018 OF THIS HON'BLE COURT. EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES BEFORE THIS HON'BLE COURT IN W.P.(C) NO.37404/2018. EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE SECRETARY OF 4TH RESPONDENT SOCIETY BEFORE THIS HON'BLE COURT IN W.P.(C) NO.37404/2018. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 3.6.2019 PASSED BY THE GOVERNMENT. RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF THE RESIGNATION LETTER OF THE 7TH PETITIONER, WHICH WAS HANDED OVER BY THE PRESIDENT TO THIS DEPONENT EXHIBIT R1(B) TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.R1(A) EXHIBIT R1(C) TRUE COPY OF THE RESIGNATION LETTER OF THE 8TH PETITIONER DATED 09.11.2018, HANDED OVER BY THE PRESIDENT TO THIS DEPONENT EXHIBIT R1(E) TRUE COPY OF THE COVERING LETTER DATED 09.11.2018 SUBMITTED BY THIS DEPONENT BEFORE THE JOINT REGISTRAR OF CO-OPERATIVE (GENERAL), KASARAGOD EXHIBIT R4(A): TRUE COPY OF COUNTER AFFIDAVIT FILED BY 4TH RESPONDENT IN WPC.NO.37404 OF 2018 DATED 26/11/2018 EXHIBIT R5(A) TRUE COPY OF LETTER DATED 23.11.2018 ISSUED BY THE HEAD MISTRESS, GHS, BANGRA, MANJESWARAM** **WP(C).No.16304 of 2019 20** **EXHIBIT R5(B) TRUE COPY OF REPRESENTATION DATED 31.10.2018 SUBMITTED BY MOHAMMED SHAFI K.P. EXHIBIT R5(C) TRUE COPY OF JUDGMENT IN W.P(C) NO.37404 OF 2018 DATED 06/02/2019 EXHIBIT R5(D) TRUE COPY OF APPEAL SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT.** **EXHIBIT-R11(A) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 11TH RESPONDENT TO THE 3RD RESPONDENT IN KANNANDA EXHIBIT-R11(B) TRUE COPY OF THE MALAYALAM TRANSLATION OF EXHIBIT-R11(A) EXHIBIT-R11(C) TRUE COPY OF THE REPLY AFFIDAVIT IN W.P(C) 37404/2018 SUBMITTED BY THE 11TH RESPONDENT EXHIBIT-R11(D) TRUE COPY OF THE PRINTOUT OF THE PHOTO TAKEN BY THE DAUGHTER OF THE 11TH RESPONDENT IN HER MOBILE PHONE ON 09/11/2018 EXHIBIT-R11(E) TRUE COPY OF THE APPEAL SUBMITTED BY THE 11TH RESPONDENT BEFORE THE 1ST RESPONDENT EXHIBIT-R12(A) TRUE COPY OF APPEAL SUBMITTED BY THE 12TH RESPONDENT BEFORE THE 1ST RESPONDENT EXHIBIT-R13(A) TRUE COPY OF THE APPEAL SUBMITTED BY THE 13TH RESPONDENT BEFORE THE 1ST RESPONDENT** **MC** **(TRUE COPY) PA TO JUDGE**