K.K. Muraleedharan v. V.S. Kuruvilla and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` WEDNESDAY, THE 5[TH] DAY OF JULY 2023 / 14TH ASHADHA, 1945 ``` ## **`RP NO. 654 OF 2023`** ``` AGAINST THE JUDGMENT DATED 08.06.2023 IN WP(C)NO.18405/2023 OF ``` ## **`HIGH COURT OF KERALA`** ## **`REVIEW PETITIONER/THIRD PARTY:`** ``` K.K. MURALEEDHARAN AGED 59 YEARS S/O. KARUNAKARAN NAIR, MEMBER AND FORMER PRESIDENT OF THE MANAGING COMMITTEE, THE KUDAYATHOOR SERVICE CO-OPERATIVE BANK LIMITED NO.3316, KUDAYATHOOR POST, THODUPUZHA, IDUKKI DISTRICT, PIN CODE- 685 590, RESIDING AT KUNNATHANIKKAL HOUSE, KANJAR P.O., IDUKKI DISTRICT, PIN - 685590 BY ADVS. NISHA GEORGE A.L.NAVANEETH KRISHNAN ANSHIN K.K GEORGE POONTHOTTAM (SR.) ``` ## **`RESPONDENTS/WRIT PETITIONER & RESPONDENTS IN W.P.(C):`** ``` 1V.S.KURUVILLA AGED 82 YEARS (MEMBERSHIP NO. 821) S/O.DEVASIA, VERUNKAL (H), KUDAYATHOOR.P.O., THODUPUZHA, IDUKKI DISTRICT, PIN - 685590 2THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, PAINAVU, IDUKKI DISTRICT, PIN - 685603 3THE ADMINISTRATOR KUDAYATHOOR SERVICE CO-OPERATIVE BANK LTD NO.3316, KUDAYATHOOR POST, THODUPUZHA, IDUKKI DISTRICT, PIN - 685590 4KUDAYATHOOR SERVICE CO-OPERATIVE BANK LTD NO.3316 KUDAYATHOOR POST, THODUPUZHA, IDUKKI DISTRICT- 685590, REPRESENTED BY ITS SECRETARY ``` ``` BY ADV SRI. SREEDHAR RAVINDRAN ``` ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 05.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.P.No.654 of 2023 IN W.P.(C)No.18405 of 2023 2 ## **O R D E R** The review petitioner is a former President of the Managing Committee of the Kudayathoor Service Co-operative Bank Ltd. He was not a party to the writ petition. He has approached this Court by filing the above review petition along with an application seeking the leave of this Court to file a review petition. 2. The learned senior counsel appearing for the review petitioner would submit that the filing of the writ petition was a collusive affair and that the filing of the writ petition is nothing but an abuse of process of this Court. It is submitted that there was no cause of action for the writ petitioner to have sought for a writ of mandamus to consider Ext.P3 representation filed by him at the hands of the Joint Registrar of Co-operative Societies (Idukki). It is submitted that the complaint which was filed by the writ petitioner, which is produced as Ext.P3 along with the writ petition, was the very same complaint which led to initiation of enquiry under Section 65 of the Kerala Co-operative Societies Act, 1969(‘the Act’ for short) on which, Ext.P1 report R.P.No.654 of 2023 IN W.P.(C)No.18405 of 2023 3 has been prepared. It is submitted that a reading of Ext.P3 complaint will itself show that the very same complaint, which was subject matter of the enquiry under Section 65 of the Act has now been sought to be considered at the hands of the Joint Registrar. 3. It is submitted with reference to the judgment of the Honourable Supreme Court in **Guruvayoor Devaswom Managing Committee and Another v. C.K.Rajan and Others** , [(2003) 7 Supreme Court Cases 546] that mandamus can be issued only when there is a failure by the State to perform any duty. It is submitted that on the earlier complaint of the writ petitioner, proceedings have been initiated under Section 65 of the Act and therefore, there was no justification whatsoever for the writ petitioner to approach this Court for a direction to the Joint Registrar of Co-operative Societies to consider and dispose of Ext.P3 complaint in accordance with the law. It is submitted that none of the affected parties were impleaded in the writ petition and this Court also did not deem it appropriate to hear affected parties before issuing a direction to consider Ext.P3 complaint produced along with the writ petition. R.P.No.654 of 2023 IN W.P.(C)No.18405 of 2023 4 4. The learned senior counsel appearing for the writ petitioner would submit that the enquiry under Section 65 of the Act was in relation to several matters including the grant of illegal memberships. It is submitted that even in Ext.P1 report, the enquiry officer finds that there are large number of memberships which have been granted illegally but does not proceed to adjudicate that matter finally in order to complete the enquiry within the time fixed. It is submitted that the review petitioner is not at any rate a person who is affected by any direction issued by this Court and he has absolutely no _locus standi_ to file a review petition. It is submitted that under Sub Rule (4) of Rule 16 of the Kerala Co-operative Societies Rules, 1969 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 such member has ceased to be a member of the society from the date of his order. It is submitted that the provisions of Sub Rule (4) of Rule 16 also contemplate that the affected party shall be given an opportunity to state his objection, if any, to the proposed action and also provides for an opportunity to such person to be R.P.No.654 of 2023 IN W.P.(C)No.18405 of 2023 5 heard before orders are issued under that provision. It is submitted that in such circumstances and considering the fact that the writ petitioner had only sought for a consideration of Ext.P3 in accordance with the law, it was not necessary to implead any party, who may be affected by any proceedings of the Joint Registrar. 5. The learned Government Pleader also submits that the review petition is not maintainable. It is submitted that the only direction issued by this Court was to consider Ext.P3 in accordance with the law and the mere fact that an earlier enquiry under Section 65 of the Act also considered the complaint regarding grant of illegal memberships, the jurisdiction of the Registrar/Joint Registrar under Sub Rule (4) of Rule 16 was not taken away in any manner. The learned Government Pleader also refers to page No.21 of Ext.P1 report to point out that the complaint regarding illegal membership could not be completed in proceedings under Section 65 of the Act. She refers to the following finding in Ext.P1: "ടി ബാങ്കിന്റെ നിയമാവലികക വിരുദ്ധമായി അംഗത്വം നൽകിയിരുന്നതായി (30/09/2004-നു മുൻപും) അന്വേ ഷണത്തിൽ കണ്ടെ ത്താനായിട്ടുണട. അംഗത്വ അപേ ക്ഷയയോടടൊപ്പം മുൻകാലങ്ങളിൽ അംഗത്വത്തിനര്ഹതയുണ്ടെ ന്നു കാണിക്കുന്ന R.P.No.654 of 2023 IN W.P.(C)No.18405 of 2023 6 രേഖകൾ ഉൾ്ക്കൊള്ളിച്ചിട്ടില്ലാത് ിനാൽ അപേ ക്ഷയിൽ ന സൂചിപ്പിച്ചിട്ടുള്ള വിവരങ്ങൾ പൂർണമായും ശരിയാണണോയെ പരിശശോധിക്കാൻ അന്വേ ഷണത്തിന്റെ സമയ പരിധിക്കുള്ളിൽ നിന്നുകകൊണ കഴിഞ്ഞിട്ടില്ല. ഇത് സംബന്ധിച്ച തുടർ പരിശശോധനകളിലൂടെ മാത്രമേ കൂടുതൽ വിവരങ്ങൾ ലഭ്യമാകൂ എന കാണുന്നു. xxx” 6. Having heard the learned senior counsel appearing for the review petitioner, the learned senior counsel appearing for the writ petitioner (first respondent in the review petition) and the learned senior Government Pleader appearing for the official respondents, I am of the view that this petition is not maintainable at the instance of the review petitioner. The review petitioner has not demonstrated as to how he is an aggrieved party by any direction issued by this Court in the judgment sought to be reviewed. The judgment sought to be reviewed only directs the Joint Registrar of the Co-operative Society to consider Ext.P3 in accordance with the law. That apart, even if I want to hold that the review petition is maintainable, I find that the grounds raised in the review petition are not tenable. The fact that the question of illegal membership was earlier considered in proceedings under Section 65 of the R.P.No.654 of 2023 IN W.P.(C)No.18405 of 2023 7 Act is no ground to hold that the jurisdiction of the Registrar/Joint Registrar to examine that question under Rule 16(4) of the Kerala Co-operative Societies Rules, 1969 was taken away in any manner. The writ petitioner has no doubt referred to the earlier complaint made by him which led to an enquiry being conducted in terms of the provisions contained in Section 65 of the Act. However, that does not preclude the writ petitioner from filing another complaint seeking the initiation of proceedings, as contemplated by Sub Rule(4) of Rule 16 especially, in the light of the fact that Ext.P1 report under Section 65 of the Act itself concludes that while there are several memberships granted contrary to the provisions of the by-laws, a detailed enquiry is necessary to condusively determine that question. 7. The contention of the learned senior counsel appearing for the review petitioner that none of the affected parties were heard cannot be accepted, as the provisions of Rule 16(4) itself contemplate that before taking action in terms of that Rule, the Registrar or Joint Registrar shall hear the affected parties before taking an action under that provision. R.P.No.654 of 2023 IN W.P.(C)No.18405 of 2023 8 8. It is no doubt true that a mandamus will issue only when there is a failure on the part of the authorities in exercising a jurisdiction vested in them under the law. The provisions of Rule 16(4) enjoins on the Registrar or Joint Registrar the authority to examine the question as to whether any person has been illegally granted membership in the society on a representation made in that regard. The writ petitioner filed Ext.P3 representation on 01.12.2022. The writ petition was filed on 05.06.2023 and was disposed of by judgment dated 08.06.2023 directing the consideration of Ext.P3 within a reasonable time. I am of the opinion that since Ext.P3 representation was filed as early as in the month of December 2022, there was demand and refusal justifying the issue of mandamus. The review petition fails and it is, accordingly, dismissed. Sd/- ## **GOPINATH P., JUDGE** rkj