Medical College Employees' Co-operative Society Ltd. No.K.703 represented by President, Gandhinagar, Kottayam-686008 v Joint Registrar of Co-operative Societies (General), Kottayam-686001

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 25TH DAY OF OCTOBER 2018 / 3RD KARTHIKA, 1940** **WP(C).No. 15136 of 2017** ## **PETITIONER/S:** **MEDICAL COLLEGE EMPLOYEES' CO-OPERATIVE SOCIETY LTD. NO.K.703 REPRESENTED BY PRESIDENT, GANDHINAGAR, KOTTAYAM-686008.** **BY ADV. SRI.P.N.MOHANAN** **RESPONDENT/S:** **JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KOTTAYAM-686001.** **BY SMT. MABLE C.KURIEN, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 15136 of 2017** **2** ## **JUDGMENT** The petitioner, the Medical College Employees' Co-operative Society, a Society registered under the provisions of the Kerala Co-operative Societies Act, 1969, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 order dated 08.12.2016 issued by the respondent Joint Registrar ordering inquiry under Section 65 of the Act in the working of the said Society regarding the matters specified in that order and Ext.P3 notice dated 16.03.2017 issued by the Assistant Registrar of Cooperative Societies. The petitioner has also sought for a declaration that the Managing Committee of the Society cannot be superseded under Section 32 of the Act without giving an opportunity to the petitioner and other members in the Managing Committee to rectify the defects, if any, on the basis Ext.P1 inquiry report. 2. On 05.05.2017, when this writ petition came **WP(C).No. 15136 of 2017** ## **3** up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for the respondent. This Court ordered that any action taken on the basis of the Section 65 inquiry shall be subject to further orders of this Court. 3. A counter affidavit has been filed on behalf of the respondent, wherein it has been stated that the inquiry under Section 65 of the Act culminated in Ext.R1(a) inquiry report dated 21.11.2017 and that, if the petitioner wants to submit any explanation, the same can be made and thereafter, the proceedings can be finalised. 4. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondent. 5. The learned counsel for the petitioner would submit that the petitioner and the members of the Managing Committee of the Society shall submit explanation to Ext.R1(a) enquiry report, within two weeks from the date of receipt of a certified copy **WP(C).No. 15136 of 2017** **4** of this judgment. 6. The learned Senior Government Pleader would submit that on receipt of such explanation, the respondent Joint Registrar shall consider the same and pass appropriate orders thereon, with notice to the petitioner and also the members of the Managing Committee and after affording them an opportunity of being heard. 7. Having considered the submissions made by the learned counsel on both sides, this Court finds that Ext.P1 order, which is under challenge in this writ petition, is an order issued by the respondent Joint Registrar ordering inquiry under Section 65 of the Act. It was during the course of that inquiry, the petitioner has been issued with Ext.P3 notice by the Assistant Registrar. Now, the inquiry has culminated in Ext.R1(a) report. Therefore, it is for the petitioner and also the members of the Managing Committee to submit explanation to Ext.R1(a) report. The respondent shall consider the **WP(C).No. 15136 of 2017** **5** same and take appropriate decision as to the further course to be taken in the matter. ## 8. In **State of M.P. v. Sanjay Nagayach** **[(2013) 7 SCC 25]** the Apex Court, in the context of Section 53 of the Madhya Pradesh Co-operative Societies Act, 1960 held that, the Registrar/Joint Registrar, while exercising powers of supersession has to form an opinion and that opinion must be based on some objective criteria, which has nexus with the final decision. A statutory authority shall not act with preconceived notion and shall not speak his masters' voice, because the formation of opinion must be his own, not somebody else in power, to achieve some ulterior motive. There may be situations where the Registrar/Joint Registrar are expected to act in the best interest of the society and its members, but in such situations, they have to act bona fide and within the four corners of the Statute. In paragraph 42 of the judgment (SCC @pages 44 & 45), the Apex Court laid **WP(C).No. 15136 of 2017** **6** down the general directions in the matter of supersession of the elected committee. 9. In **Sanjay Nagayach's case (supra)** , the order of supersession was passed by the Joint Registrar after a period of two and a half years of the issuance of show cause notice and most of the charges levelled against the Board of Directors were related to the period when the previous committee was in office and even the charges based on the audit report dated 25.9.2008 were also rectified by the Board of Directors by addressing the primary societies. Based on the decision of the Apex Court In **Sanjay Nagayach's case** , the Registrar of Co-operative Societies has issued Circular No.45/13 dated 12.07.2013. 10. In the result, the challenge made in this writ petition against Ext.P1 order and Ext.P3 notice is repelled, as the petitioner failed to make out a case warranting interference in exercise of the extraordinary jurisdiction of this Court **WP(C).No. 15136 of 2017** **7** under Article 226 of the Constitution of India. It is for the petitioner and the members of the Managing Committee to submit explanation to Ext.R1(a) report within two weeks from the date of receipt of a certified copy of this judgment. The respondent Joint Registrar shall consider the same and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and also the members of the Managing Committee and after affording them an opportunity of being heard, taking note of the law laid down by the Apex Court in **Sanjay Nagayach's case (supra)** , as expeditiously as possible, at any rate within a period of four weeks from the date of receipt of a certified copy of this judgment. The decision so taken shall be communicated to the petitioner without any delay. The writ petition is disposed of as above. **==> picture [30 x 11] intentionally omitted <==** ## **ANIL K.NARENDRAN,JUDGE** **WP(C).No. 15136 of 2017** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 08.12.2016 OF THE JOINT REGISTRAR EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 17.02.2017 OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES** **EXHIBIT P3 A TRUE COPY OF THE NOTICE DATED 16.03.2017 OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES EXHIBIT P4 A TRUE COPY OF THE INTERIM ORDER DATED 12.04.2017 IN W.P.(C)NO.13352/2017.** **RESPONDENTS' EXHIBITS :** **EXHIBIT R1(a) TRUE COPY OF THE ENQUIRY REPORT** AV/29/10