Managing Committee of Vishnupuram Social Welfare Co-operative Society Ltd v. Joint Registrar of Co-operative Societies (General)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940 WP(C).No. 4745 of 2019** ## **PETITIONER:** **MANAGING COMMITTEE OF VISHNUPURAM SOCIAL WELFARE CO-OPERATIVE SOCIETY LTD NO.T.1597, REPRESENTED BY ITS PRESIDENT, PERUMPAZHUTHUR, NEYYATTINKARA, THIRUVANANTHAPURAM.** **BY ADVS. SRI.P.N.MOHANAN SMT.AMRUTHA SURESH SRI.C.P.SABARI** ## **RESPONDENT:** **THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KAITHAMUKKU, THIRUVANANTHAPURAM-695024.** **SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.4745 of 2019** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is the Managing Committee of Vishnupuram Social Welfare Co-operative Society, which is a Society registered under the Kerala Cooperative Societies Act, 1969 and the rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 order dated 28.9.2018 of the respondent Joint Registrar, whereby an inquiry under Section 65 of the Act has been ordered in the working of the Society, by appointing the Unit Inspector in the office of the Assistant Registrar, Neyyattinkara, as the Inquiry Officer, for the matters enumerated in Ext.P1 order. The petitioner has also sought for a declaration that an inquiry cannot be conducted on the basis of the dictation of the Minister, as seen from Ext.P1. ## **W.P.(C)No.4745 of 2019** **:-3-:** 2. On 18.2.2019, when this writ petition came up for admission, the learned Senior Government Pleader sought time to get instructions. While adjourning the matter to 25.2.2019, further proceedings pursuant to Ext.P1 order was directed to be deferred for the time being. 3. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondent. 4. Ext.P1 order dated 28.9.2018 of the respondent Joint Registrar is one issued under Section 65 of the Act, ordering inquiry into the working of the petitioner Society for the matters enumerated in the said order. 5. The procedure for conduct of an inquiry under Section 65 or inspection under Section 66 of the Kerala Co-operative Societies Act, is provided under Rule 66 of the Kerala Co-operative Societies Rules. Sub-rule (1) of Rule 66 deals with inquiry ## **W.P.(C)No.4745 of 2019** ## **:-4-:** under Section 65 or inspection under Section 66 of the Act. Sub-rules (1) and (2) of Rule 66 read thus: “66. Procedure for the conduct of inquiry and inspection:- (1)(i) An order, authorising inquiry under Section 65 or inspection under Section 66 shall among other things, contain the following: (a) the name of the society whose affairs are to be inquired into or whose books of accounts are to be inspected; (b) the name of the person authorised to conduct the inquiry or inspection; (c) in specific point or points on which the inquiry or inspection is to be made, the period within which the inquiry or inspection is to be completed and report submitted to the Registrar; (d) costs of inquiry or inspection; (e) any other matter relating or pertaining to the inquiry or inspection. (2) A copy of every order authorising inquiry under Section 65 or inspection under Section 66 shall be issued to the President or the Secretary of the Society concerned by ## **W.P.(C)No.4745 of 2019** ## **:-5-:** registered post with acknowledgment due. A copy of the order shall also be made available to the Central Society or societies, to which the society in respect of which the order is issued, is affiliated.” 6. A reading of provisions under sub-rule (1) of Rule 66 would make it explicitly clear that the order in writing for an inquiry under Section 65 or inspection under Section 66 of the Act shall among other things, contain the matter enumerated in sub- clauses (a) to (e) of clause (i) of sub-rule (1), which includes specific point or points on which the inquiry or inspection is to be made. 7. In the context of the provisions under Section 65 of the Act and sub-rule (1)(i) of Rule 66 of the Rules, this Court in **Cheranellur Co-** ## **operative Society Ltd v. Deputy Registrar [1976 KLT** **353]** held that, under Section 65 of the Act, the Registrar or any other officer of the department to whom the powers of the Registrar are delegated by ## **W.P.(C)No.4745 of 2019** ## **:-6-:** the notification can order an inquiry. But in ordering an inquiry the specific point or points on which the inquiry is to be made are to be made known in the proceedings that is issued. This is what is insisted by Rule 66(1)(c) of the Rules. Not only that, without indicating the proceedings that is to precede an inquiry, the point or points on which inquiry is to be conducted, it goes without saying that no proper inquiry will be possible. Again, for the society and its office bearers to face the inquiry in a just manner the indication of the point or points on which the inquiry is to be conducted in the proceedings is only essential. Paragraphs 4 and 5 of the said decision reads thus: “4. Shri Siby Mathew, learned counsel for the petitioner, contends that the 2[nd] respondent cannot overlook the mandatory provisions contained in Rule 66(1) of the Rules in issuing the proceedings like Ext.P1 ordering an enquiry under Section 65 of the Act. Rule 66 (1) of the Rules reads: ## **W.P.(C)No.4745 of 2019** ## **:-7-:** “66. Procedure for the conduct of inquiry and inspection.-(1)(i) An order, authorising inquiry under Section 65 or inspection under Section 66 shall among other things, contain the following: (a) the name of the society whose affairs are to be inquired into or whose books of accounts are to be inspected; (b) the name of the person authorised to conduct the inquiry or inspection; (c) the specific point or points on which the inquiry or inspection is to be made, the period within which the inquiry or inspection is to be completed and report submitted to the Registrar; (d) costs of inquiry or inspection; (e) any other matter relating or pertaining to the inquiry or inspection.” Learned Government Pleader has no specific answer to the above contention raised by the learned counsel for the petitioner. The stand taken by the learned Government Pleader is that there are charges of misappropriation in ## **W.P.(C)No.4745 of 2019** ## **:-8-:** the petitioner society which are being enquired into by the Vigilance Department and in the above circumstances an enquiry under Section 65 of the Act cannot be said to be out of place. 5. No doubt, under Section 65 of the Act, the Registrar or any other officer of the department to whom the powers of the Registrar are delegated by the notification can order an enquiry. But in ordering an enquiry the specific point or points on which the enquiry is to be made are to be made known in the proceedings that is issued. This is what is insisted by Rule 66(l)(c) of the Rules. Not only that, without indicating in the proceedings that is to precede an enquiry, the point or points on which enquiry is to be conducted, it goes without saying that no proper enquiry will be possible. Again, for the society and its office bearers to face the enquiry in a just manner the indication of the pointer points on which the enquiry is to be conducted in the proceedings is only essential. In this view of the matter, Ext.Pl proceedings cannot be sustained. Hence I quash Ext.Pl.” 8. Having considered the pleadings and ## **W.P.(C)No.4745 of 2019** ## **:-9-:** materials on record, in the light of the law laid down by this Court in **Cheranellur Co-operative Society Ltd case (supra)** , this Court finds that Ext.P1 order issued by the respondent Joint Registrar ordering inquiry under Section 65 of the Act, without mentioning the specific point or points on which the inquiry is to be made, cannot be sustained in law. In such circumstances, this writ petition is disposed of by setting aside Ext.P1 order dated 28.9.2018 of the respondent Joint Registrar; however, without prejudice to the right of the respondent to pass a fresh order, if found necessary, after complying the statutory mandate of Rule 66 of the Kerala Co-operative Societies Rules. Sd/- **ANIL K.NARENDRAN JUDGE** ami/ ## **W.P.(C)No.4745 of 2019** ## **:-10-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 28.09.2018 OF THE JOINT REGISTRAR.** **EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGE OF THE BYE-LAW. EXHIBIT P3 A TRUE COPY OF THE NOTICE DATED 01.02.2019 ISSUED BY THE ENQUIRY OFFICER.** **EXHIBIT P4 A TRUE COPY OF THE PETITION DATED 13.02.2019 OF THE MANAGING COMMITTEE MEMBERS.** **EXHIBIT P5 A TRUE COPY OF THE JUDGMENT IN 1994(2) KLT 564.** **EXHIBIT P6 A TRUE COPY OF THE JUDGMENT REPORTED IN 2018(2) KHC 143.**