K. R. Bhaskaran and others v Sultan Bathery Taluk Primary Co-operative Agricultural and Rural Development Bank Ltd and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY ,THE 28TH DAY OF MARCH 2019 / 7TH CHAITHRA, 1941** **WA.No. 744 of 2019** **AGAINST THE JUDGMENT IN WP(C) 33339/2017 of HIGHCOURT** ## **APPELLANTS:** - **1 K.R.BHASKARAN AGED 54 YEARS S/O.RAMAN,KARUTHEDATH HOUSE, KOLANGAPPARA POST,WAYANAD DISTRICT-673591.** - **2 V.T.THOMAS, AGED 57 YEARS S/O.THOMAS VARIYATH HOUSE,PADICHIRA.P.O,PULPPALLY, SULTAN BATHERY,WAYANAD-673579.** - **3 SEENA BABU, AGED 46 YEARS W/O.BABU,KAITHAMATTAM HOUSE, NADAVAYAL.P.O,WAYANAD-670721.** - **4 PUSHPA CHANDRAN, AGED 45 YEARS W/O.CHANDRAN,CHALITHODIKAYIL HOUSE, EDAYKKAL,AMBALAVAYAL.P.O,WAYANAD-673581.** - **5 SANDHYA RAJENDRAN, AGED 41 YEARS W/O RAJENDRAN,VADAKKASSERIYIL,NENMENI.P.O, SULTAN BATHERY,WAYANAD-673592.** - **6 ANTONY.V.A, AGED 51 YEARS S/O ANTONY,VADAKKEKANNAMANGALATH HOUSE,CHETTAPPALAM.P.O,PULPPALLY, WAYANAD-673579.** - **7 SIVARAMAN.M.N, AGED 57 YEARS** **WA.No. 744 of 2019** **2** **S/O NARAYANAN,MADAPPATTU HOUSE, KALLOOR,NOOLPUZHA.P.O,SULTHAN BATHERY, WAYANAD-673592.** - **8 N.C.KRISHNA KUMAR, AGED 51 YEARS S/O CHOYIKUTTY,NECHOLI HOUSE, VADUVANCHAL.P.O,AMBALAVAYAL, WAYANAD-673581.** - **9 T.J.JOSEPH, AGED 61 YEARS S/O JACOB,THELAKKAD HOUSE,KUPPADI.P.O, SULTHAN BATHERY,WAYANAD-673592.** - **10 M.T.KARUNAKARAN, AGED 44 YEARS** **S/O MANI,THIRUMUKHATH HOUSE, PAKKAM.P.O,PULPPALLY,WAYANAD-673579.** ## **BY ADVS.** **SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS:** - **1 THE SULTAN BATHERY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD NO.W.299 SULTAN BATHERY P.O,WAYANAD DISTRICT-673592. REPRESENTED BY THE SECRETARY** - **2 THE PART TIME ADMINISTRATOR, THE SULTHAN BATHERY TALUK PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LIMITED NO.W.299, SULTAN BATHERY.P.O,WAYANAD DISTRICT-673592.** - **3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, WAYANAD DISTRICT-673001.** - **BY ADV. SRI.M.SASINDRAN** ## **SPECIAL GOVERNMENT PLEADER SRI MOHAMMED HASHIM.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **WA.No. 744 of 2019** **3** ## **JUDGMENT** ## C.T RAVIKUMAR This appeal is filed against the judgment dated 11-12-2018 in WP(C) No. 33339 of 2017. The appellants herein were the petitioners therein and they filed the said writ petition seeking quashment of Ext.P3 notice issued by the Joint Registrar, the 3[rd] respondent and also seeking a declaration that the 2[nd] respondent viz., the Part Time Administrator is not having the power to issue new membership or to remove members already enrolled in the Society. In short it is their contention that in such circumstances Ext.P3 series of notice and similar communications are having no force of law. The respondents filed counter affidavits. The learned Single Judge considered the rival contentions and passed the impugned judgment. Evidently, upon considering the **WA.No. 744 of 2019 4** rival pleadings the learned Single Judge found that the only issue that calls for consideration is whether Ext.P3 notice issued in the Rule 3 of Rule 16 of the Kerala Co-operative Societies Rules (for brevity 'The Rules') warrants interference. As per Ext.P3 the appellants/petitioners were asked to appear before the 2[nd] the Part Time Administrator on respondent, 19-10-2017 and to show cause why the grant of A class membership should not be cancelled. 2. The learned Single Judge took note of the fact that Ext.P3 series of notices are only show cause notices and thereby the appellants were asked only to show cause why they should not be removed from the membership of the Society on account of irregularity in their enrollment and in such circumstances, as per the impugned judgment held that it would only be proper for the petitioners to appear before the Authority and **WA.No. 744 of 2019 5** show cause why they should not be removed form the membership of the Society. The scope of interference with such show cause notice in exercise of the power under Article 226 of the Constitution of India has been considered by the learned Single Judge in the light of various decisions of the Hon'ble Apex Court as can be seen from the impugned judgment. In the decision in **State of U.P v. Brahm Datt Sharma [(1987) 2 SCC 179]** the Apex Court held that, when an Authority issued show cause notice under a statutory provision calling upon persons to show cause, the Courts should be reluctant to interfere with such notice at that stage unless the notice is shown to have been issued palpably without any authority of law. Besides the said decision, the decisions of the Apex Court in **Seimens Ltd v. State of Maharashtra [(2006) 12 SCC 33]** and in **Union of India v. Vicco Laboratories [(2007) 13 SCC 270]** were **WA.No. 744 of 2019 6** also referred to by the learned Single Judge. Those decisions also restate the earlier view of abstinence from interference at the stage of questioning of a mere show cause notice unless it is issued without jurisdiction or the very issuance of notice is an abuse of process of law. 3. For a proper appreciation of the challenge against the judgment of the learned Single Judge it is only appropriate to refer to Rule 16 of the Rules and it reads thus:- 16. Conditions to be complied with for admission for membership- (1) No person shall be admitted as a member of a society unless- - (a) he has applied in writing in the form if any laid down by the society. - (b) his application is approved by the committee of the society; - (c) he has fulfilled all other conditions laid down in the Act, Rules and Bye-laws; - (d) in the case of other societies or a body **WA.No. 744 of 2019** **7** of persons, whether incorporated or not, and any statutory or non-statutory Board, approved by the Government, Committee or Corporation constituted for the development of any industry the application for membership shall be accompanied by a resolution authorising it to apply for such membership. - (2) No person shall be eligible for admission - as a member of a Co-operative Society, if he,- - (a) has not attained the age of 18 years; - (b) is not a resident of or does not own or possess land within the area of operation of the society, provided that this clause shall not apply in the case of a society formed exclusively for the students of any School or College; - (c) has applied to be adjudicated as an insolvent or is an undischarged insolvent; (d) has been sentenced for any offence, other than an offence of a political character or an offence not involving moral **WA.No. 744 of 2019** **8** turpitude and a period of five years has not elapsed from the date of expiry of the sentence; or (e) is a paid employee of the Society or of its financing Bank or of any society for which it is the financing Bank, provided that this restriction shall not apply to Co-operative Motor Transport Societies, Co-operative Workshops, Societies for the employees of Financing Banks, and Societies formed for benefit of actual workers; or - (f) has been surcharged under S.68 and a period of 3 years has not elapsed since the payment of money or restoration of property as directed in the said order of surcharge. - (3) Where a person already admitted to - membership is seen to have been ineligible for membership at the time he was so admitted as a member or if he subsequently becomes ineligible for membership the Committee of the Society **WA.No. 744 of 2019 9** may remove the person from membership after giving him an opportunity for making his representation if any, and the person concerned shall thereupon cease to be a member of the society. (4) Where a member of a society becomes ineligible to continue as such, the Registrar may of his own motion or on a representation made to him by any member of the society or by the financing Bank, by an order in writing declare that he has ceased to be a member of the society form the date of his order. The Registrar shall give such person an opportunity to state his objection, if any, to the proposed action and if the person wishes to be heard, he shall be given an opportunity to be heard before passing an order as aforesaid. 4. We have referred to Rule 16 of the Rules to show that the Rules carry provision for removal from the membership of a Society and it also provides the **WA.No. 744 of 2019 10** procedure therefore. At this stage there is no material before us to treat issuance of Ext.P3 as an abuse of process of law. That apart, paragraph 15 of the impugned judgment would reveal that the learned Single Judge had afforded opportunity to the petitioners/the appellants herein to offer their explanation to Ext.P3 series of notices before the 2[nd] respondent, with appropriate, consequential directions to the 2[nd] respondent. Above all, it was further held therein thus:- “All legal and factual contentions raised by the petitioners are left open to be raised before the 2[nd] respondent at appropriate stage.” Thus, it is obvious that the learned Single Judge had not gone into the merits of the contentions and only relegated the parties to the proceedings before the 2[nd] respondent who issued Ext.P3 series of notices going by **WA.No. 744 of 2019 11** the normal rule. In such circumstances, in the light of the decisions at this stage when the petitioners are called upon only to show cause why they should not be removed from the membership of the Society, we are of the considered view that the learned Single Judge has rendered the judgment perfectly in tune with the dictum laid down by the Apex Court in the aforesaid decisions, taking note of the nature of Ext. P3 series of notices. We do not find any illegality in the impugned judgment passed by the learned Single Judge warranting an appellate interference. In such circumstances, this appeal is liable to be fail and consequently it is dismissed. However, we make it clear that in case the appellants offer their explanations to Ext.P3 series of notices, within two weeks from the date of receipt of a copy of this judgment the 2[nd] respondent shall consider the same and pass appropriate orders thereon, in the **WA.No. 744 of 2019** **12** light of the directions contained in paragraph 15 of the impugned judgment passed by the learned Single Judge, if no orders have already been passed pursuant to Ext.P3 series of notices. **Sd/-** **C.T.RAVIKUMAR JUDGE Sd/N.NAGARESH JUDGE** SVP //TRUE COPY// Sd/PA TO JUDGE