KALLADA RAMESH AND OTHERS v. DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT, DIRECTORATE, PATTOM, THIRUVANANTHAPURAM, KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942** ## **WP(C).No.26243 OF 2020(E)** ## **PETITIONERS:** - **1 KALLADA RAMESH, CHAIRMAN, THIRUVANANTHAPURAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT NIRAPPURAVILAYIL, CHITTUMALA EAST KALLADA, KOLLAM.** - **2 S. SADASIVAN PILLAI, BOARD OF DIRECTOR OF THIRUVANANTHAPURAM REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT SOMASEKHARA VILASOM, MANJADITHARA, PALLICKAL P. O., ALAPPUZHA - 690 503.** - **3 MATHEW CHAMATHIL,** - **BOARD OF DIRECTOR OF THIRUVANANTHAPURAM REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT CHAMATHIL HOUSE, CHENGAROOR P. O., MALLAPPALLY VI PATHANAMTHITTA - 689 594.** - **4 KARUMADI MURALI** **BOARD OF DIRECTOR OF THIRUVANANTHAPURAM REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT CHERIYAKKADU HOUSE, KARUMADI P. O., AMBALAPUZHA, ALAPPUZHA - 688 564.** - **5 V. VENUGOPALA KURUP** **BOARD OF DIRECTOR OF THIRUVANANTHAPURAM REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT SREEVALSOM, ANAYADI P. O., SOORANADU NORTH, KOLLAM - 690 522.** ## **6 S. AYYAPPAN NAIR** **BOARD OF DIRECTOR OF THIRUVANANTHAPURAM REGIONAL COOPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT DWARAKA, KARODE P. O., AMARAVILA VIA, TRIVANDRUM - 695 506.** **WP(C).No.26243 OF 2020** **2** ## **7 S. GIREESH KUMAR** **BOARD OF DIRECTOR OF THIRUVANANTHAPURAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT SHAJI BHAVAN, KILIYOOR, VELLARADA P. O., TRIVANDRUM - 695 505.** ## **8 K. RAJASEKHARAN** **BOARD OF DIRECTOR OF THIRUVANANTHAPURAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT PADMAVILASOM, PUNNAKULAM, KULASEKHARAPURAM P. O., KOLLAM - 690 544.** ## **9 V. V. VISWAN** **BOARD OF DIRECTOR OF THIRUVANANTHAPURAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT VALIYAVEETIL, AARTHUNGAL P. O., CHERTHALA, ALAPPUZHA - 688 530.** ## **10 T. SUSHEELA** **BOARD OF DIRECTOR OF THIRUVANANTHAPURAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT LOVE SHORE, KEEZHKOLLA, VATTAVILA P. O., TRIVANDRUM - 695 132.** - **11 LISSY MATHAI** **BOARD OF DIRECTOR OF THIRUVANANTHAPURAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT KALIYANICKAL ANIL BHAVAN, PARANTHAL P. O., PANDALAM, PATHANAMTHITTA - 689 518.** ## **12 S. SHEEJA** **BOARD OF DIRECTOR OF THIRUVANANTHAPURAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD. NO.T 177 D APCOS, KSHEERA BHAVAN, PATTOM, THIRUVANANTHAPURAM, RESIDING AT PADIKKU MAMPUZHA VEEDU, OTTOOR, MOONGODE P. O., VARKALA, TVM - 695 144.** **BY ADVS. SRI.P.N.MOHANAN SRI.C.P.SABARI SMT.AMRUTHA SURESH** **WP(C).No.26243 OF 2020** **3** ## **RESPONDENT:** **DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT DIRECTORATE, PATTOM, THIRUVANANTHAPURAM, KERALA - 695 004.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.26243 OF 2020** **4** ## **JUDGMENT** The petitioners herein are the Chairman and Board of Directors of the Thiruvananthapuram Regional Co-operative Milk Producers Union (‘TRCMP Union’ for short). The TRCMP union is a central society registered under the Kerala Cooperative Societies Act, 1969 (for short ‘the Act’). 2. The petitioners have approached this Court challenging Exhibit P9 show cause notice by which they were called upon to respond to certain allegations levelled against them. The petitioners content that Exhibit P9 Notice is issued with mala fide intent and in a predetermined manner to supersede the society. It is in the above background that the petitioners have approached this Court seeking the following reliefs: 1. Call for the records leading to issue Exhibit P 9 and quash the same by issuing a Writ of certiorari or any other appropriate writ order or direction. 2. declare that an elected managing committee of the TRCMP union cannot be superseded on the basis of the allegations contained in Exhibit P9. 3. Sri.P.N.Mohanan, the learned counsel appearing for the petitioners submitted that the allegation in Exhibit P9 is mainly that the committee had failed to appoint a Managing Director on regular basis. It is also stated that the **WP(C).No.26243 OF 2020** **5** committee had removed certain primary societies from membership and that they had failed to give affiliation to some other societies. According to the learned counsel, none of these allegations are sufficient enough to initiate steps to supersede the society under Section 32 of the Act. He would further contend that the Managing Committee has filed a detailed objection, a copy of which is produced as Exhibit P10 as early as on 24.11.2020 and the same is pending before the respondent. According to the learned counsel, though ordinarily, this Court cannot be called upon to exercise its discretionary jurisdiction when a show cause notice is challenged, when it is made out from the records that the authority has already made up its mind and formed an opinion, this Court can interfere. 4. Sri. Ranjith Thampan, the learned Additional Advocate General, who appeared for the respondent submitted that the issuance of notice invoking Section 32(1) of the Co-operative Societies Act, 1969 was well within the jurisdiction of the respondent and none of the contentions raised before this Court merits any serious consideration. He would point out that Ext.P9 was issued as early as on 5.11.2020 and the petitioners have submitted Ext.P10 explanation for the same. Immediately thereafter, the petitioners were asked to appear before the respondent for a personal hearing and it is at that juncture that they have rushed to this Court challenging the show cause notice. It is submitted that the explanation offered by the petitioners shall also be considered by the respondent and he shall proceed in accordance with law bearing in mind **WP(C).No.26243 OF 2020** **6** the principles laid down by the Apex Court as well as this Court. He would contend that only if the findings against the committee are such that the continuance of the committee would be extremely prejudicial to the interest of the society that the exceptional and rare action under Section 32 shall be taken by the respondent. If the default is minor and negligible and not found to be persistent, an opportunity will be extended to the society to rectify the same. Relying on the judgment of the Hon’ble Supreme Court in **Manish S Pardasani(M/s Wine Komder) v. Inspector State Excise and others** [(2019) 2 SCC 660], it is contended that this Court will not be justified in issuing directions merely on anticipation of an order being passed by the Joint Registrar. 5. I have anxiously considered the submissions advanced. I find that the challenge in this petition is to the show cause notice issued by the respondent under Section 32(1) of the Act. The petitioners have filed Ext.P 10 explanation detailing their version and clarifying their position. They have been asked to appear before the respondent for a personal hearing. Unless exceptional cause is made out, this Court would refuse to exercise its discretionary jurisdiction by entertaining a writ petition questioning a notice to show cause. In the case on hand, the petitioners have no case that the order suffers from any jurisdictional infirmity or any other error. The only assertion of the petitioners is that an adverse order would be passed by the respondent and the society would be superseded. I am of the considered opinion that such apprehension is misconceived. **WP(C).No.26243 OF 2020** **7** 6. In **Manish S Pardasani** (supra), the Supreme Court had deprecated the issuance of directions which are essentially passed in anticipation of the order passed by an appellate authority, observing that such orders would interfere with the independence of the authority in deciding the matter before it in accordance with law. It was held thus in para 64 to 67. 64. We find that the High Court while disposing of the Writ Petitions also passed the following writ / directions in Para 20 which reads as under: “Since an apprehension is expressed and a serious one by the petitioners, we direct that in the event the fourth respondent passes any orders adverse to the petitioners, then such orders shall not take effect for a period of four weeks from the date they are communicated to the petitioners. Since we have set aside the fourth respondent's interim order and for the present not expressed any opinion on the contentions raised before us, interest of justice demands that the sealing of the premises by the authorities should be set aside. Therefore, the Superintendent or other functionary is directed to remove the seal, lock and key placed on the premises forthwith. This order will ensure to the benefit of such of the petitioners whose licenses are subsisting and are not cancelled. The other licences, which are no longer in operation on account of their termination, the holders thereof cannot avail the benefit of this order. However, we do not express any opinion on the remedies that are available to them and they can avail them as observed and held in the above paragraphs.” (Emphasis Supplied) 65. In our considered view, the High Court ought not to have issued directions of this nature. It was legally not permissible to do so. Indeed, the High Court by issuing such directions which are essentially passed in anticipation of the the order being passed by an appellate authority, interfered with the judicial independence of an appellate authority in deciding the appeals in accordance with law. **WP(C).No.26243 OF 2020** **8** 66. It is the sole discretion of the appellate authority under the Act to decide the appeal based on the facts involved in the appeal, and legal provisions which eventually result in passing a judicial order. No higher court can pass such directions merely on anticipation of an order being passed by an appellate authority. It is only after the order is passed, that the aggrieved person has a legal right to take recourse to a legal remedy available in law against such order by approaching to a higher forum and pray for grant of appropriate relief against such order. 67. This stage in this case is yet to arrive. The High Court should not have, therefore, pre-empted the passing of any order of the appellate authority, while deciding the Writ Petition. It is a settled law that the Court can stay or quash only those orders, which are impugned in the lis before it. A fortiori the Court cannot stay or/and quash the orders in anticipation before they are passed. We cannot, therefore, uphold such writ/directions issued by the High Court. 7. Since the matter is now pending consideration of the respondent, this Court in the light of the observations made above by the Apex Court will not be justified in issuing any directions merely in anticipation of an adverse order being passed. If the petitioners are aggrieved by the order passed by the respondent he has a legal right to take recourse to a legal remedy available in law against such an order. 8. In view of the apprehension expressed by the petitioners that the proceeding initiated under Section 32(1) is premeditated and with a view to supersede the elected committee, the respondent shall do well to remind itself of the principles laid down by the Apex Court as well as this Court. **WP(C).No.26243 OF 2020** **9** 9. In **Sanjay Nagayach** (supra), the Supreme Court had occasion to observe that supersession of an elected Managing Committee is an exception and can be resorted only in exceptional circumstances and normally the elected body should be allowed to complete the term for which it is elected. In paragraph No.42 of the judgment, the Apex Court had issued general directions taking note of the mushrooming of cases in various Courts challenging orders of supersession of elected Committees: The general directions are extracted below for easy reference. 1) Supersession of an elected managing Committee/Board is an exception and be resorted to only in exceptional circumstances and normally elected body be allowed to complete the term for which it is elected. 2) Elected Committee in office be not penalised for the shortcomings or illegalities committed by the previous Committee, unless there is any deliberate inaction in rectifying the illegalities committed by the previous committees. 3) Elected Committee in Office be given sufficient time, say at least six months, to rectify the defects, if any, pointed out in the audit report with regard to incidents which originated when the previous committee was in office. 4) Registrar/Joint Registrar are legally obliged to comply with all the statutory formalities, including consultation with the financing banks/Controlling Banks etc. Only after getting their view, an opinion be formed as to whether an elected Committee be ousted or not. 5) Registrar/ Joint Registrar should always bear in mind the consequences of an order of supersession which has the effect of not only ousting the Board out of office, but also disqualify them for standing for election in the succeeding elections. Registrar/Joint Registrar therefore is duty bound to exercise his powers bona fide and not on the dictation or direction of those who are in power. 6) Registrar/Joint Registrar shall not act under political pressure **WP(C).No.26243 OF 2020** **10** or influence and, if they do, be subjected to disciplinary proceedings and be also held personally liable for the cost of the legal proceedings. 7) Public money not to be spent by the State Government or the Registrar for unnecessary litigation involving disputes between various factions in a co-operative society. Tax payers money is not expected to be spent for settling those disputes. If found necessary, the same be spent from the funds available with the concerned Bank. ## 10. In **Vallapuzha Service Co-operative Bank Ltd. v. Joint** **Registrar** [2009 (3) KLT 838] this Court had observed that supersession of a democratically elected committee is a very drastic and extreme step. It is not necessary to cite any judicial precedents to hold that action under Section 32 of the Act cannot therefore be taken lightly for mundane violations. Only if the findings against the Committee are such that the continuance of the Committee would be extremely prejudicial to the interests of the Society, the exceptional and rare action under Section 32 of the Act shall be taken. Findings on the culpability of the Committee on their improper action should inform the action of the Registrar while initiating proceedings under Section 32 of the Act. In other words, the mere finding that the Committee has done the acts alleged alone is not sufficient; the same should be supported by a further finding that they did the same with a culpable mind, failing which the action of the Registrar would be improper. 11. These observations shall be borne in mind by the respondent while hearing the petitioner and other members of the managing committee of the Union. **WP(C).No.26243 OF 2020** **11** In that view of the matter, this writ petition will stand disposed of directing the petitioners to appear before the respondent in terms of the directions issued above and furnish their explanation. The respondent shall consider the same and take appropriate decision. ## **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** ps **WP(C).No.26243 OF 2020** **12** ## **APPENDIX OF WP(C) 26243/2020** **PETITIONERS EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE RELEVANT CLAUSE 21.2.16 OF THE BY-LAW REGARDING QUALIFICATION OF THE MANAGING DIRECTOR.** **EXHIBIT P2 THE RELEVANT BY-LAW APPROVED BY THE DIRECTOR OF DAIRY DEVELOPMENT.** **EXHIBIT P3 A TRUE COPY OF THE LETTER DATED 25.01.2020 OF THE SECOND RESPONDENT.** - **EXHIBIT P4 A TRUE COPY LETTER DATED 22.03.2020 OF THE SECOND RESPONDENT.** - **EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED 16.09.2020 IN W.P.(C) NO.9662/2020.** - **EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 01.10.2020 OF THE DISASTER MANAGEMENT DEPARTMENT OF THE GOVERNMENT OF KERALA.** - **EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 06.11.2020 OF THE DISTRICT COLLECTOR, PATHANAMTHITTA.** - **EXHIBIT P8 A TRUE COPY OF THE LETTER DATED 12.11.2020 OF THE DISTRICT COLLECTOR.** - **EXHIBIT P9 A TRUE COPY OF THE NOTICE DATED 05.11.2020 OF THE SECOND RESPONDENT.** **EXHIBIT P10 A TRUE COPY OF THE OBJECTION DATED 24.11.2020 FILED BY THE MANAGING COMMITTEE BEFORE THE RESPONDENT. EXHIBIT P11 A TRUE COPY OF THE JUDGMENT AS REPORTED IN 2013(2) KLT 733. EXHIBIT P12 A TRUE COPY OF THE JUDGMENT AS REPORTED IN 2012(4) KLT 941. EXHIBIT P13 A TRUE COPY OF THE JUDGMENT AS REPORTED IN 2007(1) KLT 88.**