K. Achuthan & J. Sabhapathy v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** ## **WA.No.1655 OF 2019** **AGAINST THE JUDGMENT DATED 12.04.2019 IN WP(C) 15953/2018(T) OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** - **1 K.ACHUTHAN,AGED 69 YEARS FORMER PRESIDENT, MANAGING COMMITTEE OF TATTAMANGALAM SERVICE CO-OPERATIVE BANK LTD NO.P 502, TATTAMANGALAM-678102, PALAKKAD.** - **RES. CHALAKKALAM, THATHAMANGALAM.P.O., PALAKKAD678102** - **2 J.SABHAPATHY, FORMER MEMBER, MANAGING COMMITTEE OF TATTAMANGALAM SERVICE CO-OPERATIVE BANK LTD NO. P 502, TATTAMANGALAM-678102, PALAKKAD. RES. SOUPARNIKA, CHUNGAM, ARANGAM ROAD, TATHAMANGALAM.P.O., PALAKKAD-678102** **BY ADVS.SRI.MATHEW B. KURIAN SRI.K.T.THOMAS SRI.K.JAJU BABU (SR.)** ## **RESPONDENT/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT CO-OPERATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1** W.A.No.1655 of 2019 2 - **2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHPAURAM-1** - **3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, PALAKKAD-678582** - **4 THE ASSISTNAT REGISTRAR(GENERAL) OF CO-OPERATIVE SOCIETIES, CHITTUR, PALAKKAD-678582** - **5 TATTAMANAGALAM SERVOICE CO-OPERATIVE BANK LTD NO. P 502, TATTAMANGALAM-678102, PALAKKAD, REPRESENTED BY ITS SECRETARY.** - **6 UNNIKRISHNAN C** **S/O.BHAMALOCHANA, PALLATHUMPULLY, TATTAMANGALAM POST, PIN-678102, PALAKKAD** ## **SPL GP- SRI MOHMMAD HASHIM.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1655 of 2019 3 ## **JUDGMENT** ## **Ravikumar, J.** The appellants who were the petitioners in W.P.(C)No.15953 of 2018 filed the captioned appeal on being aggrieved by the judgment passed thereon by the learned Single Judge. They are the former President and former Member of the Managing Committee of the Thathamangalam Service Co-operative Bank which was superseded as per order dated 11.5.2018 viz., Ext.P16, under Section 32 of the Kerala Co-operative Societies Act, 1969 (for brevity `KCS Act'). Earlier, when notice was issued to the members of the Managing Committee the first appellant, the then President of the Society approached this Court by filing W.P.(C)No.12375 of 2018. The said writ petition was disposed of as per Ext.P13 judgment dated 9.04.2018 taking note of the submission of the learned Government Pleader that the order impugned therein viz., Ext.P12 is only a notice and further orders would be passed thereon only after considering all the contentions raised therein by the petitioner therein. Further it was stated therein thus:- “It is stated that the necessity for taking action for Supersession of the Committee will also be considered and if it is not absolutely required, the Society will be given a chance to rectify the defects.” In Ext.P13 judgment the learned Single Judge further ordered thus:- W.A.No.1655 of 2019 4 “If the order passed is adverse to the interest of the petitioner, the same shall be kept in abeyance for a period of one week to enable the petitioner to avail of legal remedies available.” Ext.P16 dated 11.5.2018 is the order passed subsequently. As noticed hereinbefore, it is an order for supersession of the Managing Committee of the Society passed under Section 32 of the KCS Act. It is in the said circumstances that the petitioner in W.P.(C)No.12375 of 2018 along with another former Member of the Committee filed W.P.(C)No.15953 of 2018. The third respondent herein resisted the contentions raised by the appellants/writ petitioners. After considering the rival contentions the learned Single Judge dismissed the writ petition. It is in the said circumstances that the captioned appeal has been preferred. 2. Heard the learned Senior Counsel appearing for the appellants and also the learned Special Government Pleader. 3. The learned Senior Counsel for the appellants drew our attention to paragraph 8 of the impugned judgment which reads thus:- “The scope of judicial review is limited. The petitioners had not chosen to invoke the remedy of revision under Section 87 of the Act.” It is submitted that against an order passed under Section 32 of the KCS Act virtually, an appeal is provided under Section 83(1)(j) of the KCS Act. It is further submitted that after observing that the scope of judicial review is very limited and there exists a remedy of revision to W.A.No.1655 of 2019 5 the petitioner virtually, the learned Single Judge went on to consider the writ petition on merits, after observing that the sole question posed for consideration is whether the finding of fact would warrant invocation of Section 32 of the KCS Act. The learned Single Judge held that the Joint Registrar had acted based on the report of an inspection conducted under Section 66 of the KCS Act. It is further submitted that a scanning of the impugned judgment would reveal that the learned Single Judge virtually, declined to consider the factual aspects involved in the matter. In that regard, it is submitted by the learned Senior Counsel that if the factual aspects were gone into, the order impugned viz., Ext.P16 would not have been sustained. In short, the contention is that the appellants are deprived of an opportunity to raise contentions based on facts and to prove the unsustainability of the reasons for supersession given in Ext.P16. According to the learned Senior Counsel, in view of the observation made in paragraph 8 of the impugned judgment, though pertaining to the existence of a statutory remedy of revision, the disinclination to go into the factual aspects, the learned Single Judge ought not to have considered the sustainability of Ext.P16 without adverting to the grounds founded on facts. That apart, it is submitted that the actual term of the erstwhile committee in which the first appellant was the President and the second appellant was a Member had expired in December, 2018 and in the subsequent election W.A.No.1655 of 2019 6 the first appellant got elected and three other members who were members of the superseded Committee were also elected. In such circumstances, depriving them the opportunity to assail Ext.P16, raising factual aspects as well would adversely affect their right for continuance in the new Committee in view of Rule 44 of the Kerala Co-operative Societies Rules. 4. In the context of the contentions it is only appropriate to refer to Section 32(1)(e) of the KCS Act. It reads thus:- “ **32. Supersession of Committee** .-(1) If the Registrar, after an inquiry by himself or through his subordinate or on a report of the financing bank, or the Vigilance and Anticorruption Bureau of the Government or the Vigilance Officer or otherwise, is satisfied that the committee of any society,- ….................................. (e) Every member of the committee superseded under this section shall from the date of order of such supersession stand disqualified to contest in the election to or to be nominated to the committee of any Society or to be appointed as an administrator in any society for two consecutive ” terms. (emphasis added) 5. It is submitted that the pleadings in the writ petition would reveal that the appellants herein had taken up various contentions based on factual aspects and further that the learned Single Judge had declined to go into such contentions. It is the further submission that had the petitioners been relegated to avail the remedy W.A.No.1655 of 2019 7 under Section 83(1)(j) of KCS Act they could have taken up all such contentions based on factual aspects as well, as it is an appellate remedy. It is submitted that as regards the first appellant and the others who were members of the erstwhile Committee that was superseded and subsequently elected Ext.P16 order would visit them with adverse civil consequences as is evident from Section 32(1)(e) of the KCS Act. 6. Per contra, the learned Special Government Pleader submitted that it is a case where immediately on serving of notice, prior to passing of order under Section 32 of the KCS Act, the first appellant herein had approached this Court by filing W.P.(C)No.12375 of 2018 which ultimately culminated in Ext.P13 judgment. While the learned Special Government Pleader contends that the impugned Ext.P16 order was passed after considering all contentions in terms of Ext.P13 judgment the learned Senior Counsel appearing for the appellants contended that a bare perusal of Ext.P16 itself would reveal that consideration that culminated in Ext.P16 was not in terms of Ext.P13 judgment. Based on the submission that the learned Single Judge after referring to the scope of judicial review and after taking note of the existence of alternative remedy declined to consider the contentions raised by the appellants based on factual aspects we have carefully gone through the impugned judgment. The pleadings in the writ W.A.No.1655 of 2019 8 petition would reveal that the appellants had actually taken up certain contentions based on factual aspects. Their contention is that if such contentions based on factual aspects are gone into and their verity was ascertained based on materials available many of the objections that persuaded issuance of Ext.P16 would have been held as unsustainable. In short, it is contended that disinclination to go into the factual aspects; so also the non-relegation to appellate remedy that provides such an opportunity would cause great prejudice to the appellants. When the scope of judicial review is limited and efficacious alternative remedy of appeal was available to the appellants/petitioners in the light of the observation in paragraph 8 of the impugned judgment, the learned Single Judge ought not to have gone into the merits of the contentions. On a careful scanning of the impugned judgment we have found that there is substance and force in the contention of the learned Senior Counsel for the appellants inasmuch as, various contentions in the writ petition based on factual aspects were not at all gone into. True that, in view of the scope of judicial review such contentions could not have been gone into in a writ petition. In view of the scope of an appellate remedy and the revealed reluctance to go into the factual contentions we are of the view that it would have been only proper to relegate the petitioners viz., the appellants herein to avail the appellate remedy wherein they would have obtained proper opportunity to raise W.A.No.1655 of 2019 9 all contentions based on factual aspects as well. But, the fact is that after declining to consider the manifold contentions based on factual aspects the learned Single Judge considered the legal contentions and declined to interfere with Ext.P16 order of supersession. We have already taken note of the fact that some members of the superseded Committee viz., the first appellant and three others were elected in the subsequent election. In this context, it is also relevant to note that the order impugned in the writ petition viz., Ext.P16 was stayed by this Court while admitting W.P.(C)No.15953 of 2018 and the stay had been in force till the disposal of the writ petition as per the impugned judgment. It is a fact that in the meanwhile, the term of the Committee had expired and subsequent election was also conducted. Taking into account all such situations and the contentions that were raised in the writ petition and are raised in this appeal we are of the view that interest of justice demands granting of an opportunity to the appellants who are entitled to prefer an appeal against the impugned Ext.P16 order in view of the provisions under Section 83(1)(j) of the KCS Act. But, at the same time, the fact is that going by the provisions under Section 83(2) of KCS Act, a period of 60 days alone was available for preferring an appeal and the said period had already expired. 7. The admitted fact is that much prior to the expiry of the said period of 60 days the appellants herein had approached this Court W.A.No.1655 of 2019 10 and filed W.P.(C)No.15953 of 2018 challenging Ext.P16 order. In the contextual situation, we are of the view that the decision of a learned Single Judge of this Court in **Abraham** v. **Kumaranalloor Service Coop. Bank** reported in **1993 (2) KLT S.N.7 (Case No.8)** assumes relevance. That was a case where against an order of the Joint Registrar exercising the power of Registrar under Section 83(1)(j) of the KCS Act an appeal was moved before the Registrar under Section 83(2)(b) of the Act. In fact, an appeal would lie only before the Government and not before the Registrar, in such circumstances. The appeal was filed before the Registrar instead of the Government within the time prescribed. This Court, as per the judgment virtually, permitted re-presentation of the appeal before the Government and directed the Government to dispose of the same on merits without being inhibited by the question of limitation. In the case on hand, against Ext.P16 order the remedy of appeal under Section 83(1)(j) of the KCS Act was available. The petitioners had approached this Court by filing a writ petition which culminated in the impugned judgment. Since an appellate remedy was available and the learned Single Judge did not entertain the contentions based on factual aspects we are of the view that the petitioners/appellants ought to have been relegated to appellate remedy under Section 83(1)(j) of KCS Act. When the fact discernible from the impugned judgment is that such factual W.A.No.1655 of 2019 11 contentions were not at all gone into and when the position is that in an appeal all such contentions could have been gone into and also, taking into account the impact of non-consideration owing to the fact that the first appellant and three others were elected to subsequent Committee, we are of the view that, in the interest of justice, after setting aside the judgment the petitioners/appellants should be permitted to avail the remedy to file appeal under Section 83(1)(j) of KCS Act. In view of the aforesaid discussion we are granting liberty to the appellants to avail the remedy of appeal under Section 83(1)(j) of KCS Act against Ext.P16 order passed by the 3[rd] respondent. In case such an appeal is filed before the first respondent within two weeks from today, the same shall be considered without going by the question of limitation. In other words, in such circumstances, appeal shall be considered on merits. To avail such consideration, the impugned judgment is set aside. The appeal is disposed of as above. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **N.NAGARESH Judge** TKS