The Managing Committee, The Thumboor Primary Co-operative Society Limited v. Joint Registrar of Co-operative Societies (General) Thrissur District & Anwar A.A. & Mini W/o Ajayan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940** **RP.No. 203 of 2019 IN WA. 315/2019 AGAINST THE JUDGMENT OF THIS HON'BLE COURT IN WA 315/2019 DATED 12.02.2019** ## **REVIEW PETITIONERS/APPELLANTS:** **1 THE MANAGING COMMITTEE, THE THUMBOOR PRIMARY CO-OPERATIVE SOCIETY LIMITED NO.R-1204, THUMBOOR.P.O., THRISSUR DISTRICT, KERALA STATE-680 662. REPRESENTED BY ITS PRESIDENT.** **2 THE PRESIDENT, MANAGING COMMITTEE, THE THUMBOOR PRIMARY COOPERATIVE SOCIETY LIMITED NO.R-1204, THUMBOOR.P.O., THRISSUR DISTRICT, KERALA STATE 680662.** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** **1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL ), THRISSUR DISTRICT, PIN CODE-680 001.** **2 ANWAR.A.A, ALUVAKKARAN HOUSE, VATTEPPADAM, KOTTAMALLUR.P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT, KERALA STATE -680 662.** **3 MINI W/O.AJAYAN, MEMBER NO.9017, THUMBOOR SERVICE COOPERATIVE BANK LTD.NO.359. THUMBOOR, RESIDING AT, THARAYIL HOUSE, THUMBOOR.P.O., KOTTANELLUR, THRISSUR680662.** 2 Review Petition No.203 of 2019 in W.A.No.315 of 2019 **SRI.T.RAJASEKHARAN NAIR SR GP ADV.SRI.M.SASINDRAN FOR R2** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 07.03.2019, THE COURT ON 12.03.2019 PASSED THE FOLLOWING:** 3 Review Petition No.203 of 2019 in W.A.No.315 of 2019 ## **V.CHITAMBARESH &** ## **R.NARAYANA PISHARADI, JJ.** ************************** Review Petition No.203 of 2019 in W.A.No.315 of 2019 ---------------------------------------------Dated this the 12[th] day of March, 2019 ## **O R D E R** ## **R.Narayana Pisharadi, J** This review petition is filed by the Managing Committee and its President of a Primary Co-operative Society, who were the appellants in W.A.No.315/2019, for reviewing the judgment dated 12.02.2019 rendered by this Court in that appeal. 2. The first respondent issued Ext.P1 notice dated 08.06.2017 to the petitioners to show cause why steps shall not be taken under Section 32 of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as 'the Act'). Ext.P1 notice was issued based on a report dated 08.03.2017 submitted under Section 66 of the Act by the Senior Inspector to the first 4 Review Petition No.203 of 2019 in W.A.No.315 of 2019 respondent. The inspection had been directed to be conducted by the first respondent by order dated 09.11.2016. 3. The petitioners filed W.P.(C) No.20804/2017 challenging the validity of Ext.P1 notice. The learned Single Judge disposed of the writ petition with a direction to the first respondent to give opportunity to the petitioners for personal hearing and thereafter to take appropriate action in the matter. The petitioners filed W.A.No.315/2019 challenging the judgment of the learned Single Judge . 4. As per the judgment dated 12.02.2019, this Court dismissed the writ appeal holding as follows: _“The notice for supercession under Section 32 of the Kerala Co-operative Societies Act, 1969 based on a report of the inspection under Section 66 of the Act cannot be nipped in the bud as stated by the learned Single Judge. Many factual disputes arise particularly when the parties are at variance and an opportunity has been afforded to the appellants to respond to the notice. Any order passed finally can also be challenged statutorily and the writ petition challenging Ext.P1 notice of supercession was rightly not entertained.”_ 5 Review Petition No.203 of 2019 in W.A.No.315 of 2019 5. Aggrieved by the judgment of this Court in the writ appeal, the petitioners filed S.L.P.No.5333/2019 before the Hon'ble Supreme Court. The petitioners sought permission to withdraw the special leave petition with liberty to file review petition before this Court and therefore, by order dated 20.02.2019, the Hon'ble Supreme Court dismissed the special leave petition as withdrawn. Thereafter, the petitioners have filed this review petition. 6. We have heard the learned senior counsel for the petitioners and the learned Government Pleader and also the learned counsel for the party respondents. We have perused the statement filed by the learned Government Pleader. 7. It is stated in the review petition that Ext.P1 notice is silent as to the provision under which it has been issued. This statement is not correct. It is specifically stated in Ext.P1 notice that it is issued to show cause why proceedings shall not be taken under Section 32 of the Act in continuation of the report submitted to the first respondent by the Unit Inspector under 6 Review Petition No.203 of 2019 in W.A.No.315 of 2019 Section 66 of the Act. 8. Another plea in the review petition is that Ext.P1 does not refer to any of the four conditions stipulated under Clauses (a) to (d) of Section 32(1) of the Act. It is to be noted that the notice was issued on the basis of the report of inspection submitted to the first respondent under Section 66 of the Act. Along with Ext.P1 notice, the petitioners had also been served with a copy of the report under Section 66 of the Act. Therefore, it cannot be found that there was no material before the first respondent for issuing a notice under Section 32(1) of the Act. Only a, prima facie, satisfaction of the existence of any of the conditions under Clauses (a) to (d) of Section 32(1) of the Act by the Registrar is sufficient for issuing a notice. On the other hand, if the Registrar had fully satisfied that there existed any of the grounds mentioned under Clauses (a) to (d) of Section 32(1) of the Act, it would mean that he had prejudged the issue and already made up his mind for supercession of the committee. Review Petition No.203 of 2019 in W.A.No.315 of 2019 7 ## 9. In **Union of India v. Vicco Laboratories : (2007) 13** **SCC 270** , to which reference is made also by the learned Single Judge, it has been held as follows: _“Normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their contentions before the concerned authorities and to satisfy the concerned authorities about the absence of case for proceeding against the person against whom the show cause notices have been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the concerned authorities is the normal rule. However, the said rule is not without exceptions. Where a Show Cause notice is issued either without jurisdiction or in an abuse of process of law, certainly in that case, the writ court would not hesitate to interfere even at the stage of issuance of show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where_ 8 Review Petition No.203 of 2019 in W.A.No.315 of 2019 _factual adjudication would be necessary, interference is ruled out”._ 10. True, in the judgment rendered in the writ appeal, we had not gone deep into the factual details. It was not necessary to delve deep into the factual aspects when challenge is made only against a show cause notice. What is to be looked into is only whether the notice was issued without jurisdiction. 11. In the statement dated 05.03.2019 filed by the learned Government Pleader, it is mentioned that Ext.P1 notice was issued by the Registrar on the basis of the findings made in the enquiry under Section 66 of the Act. 12. We are not convinced that there is any error apparent on the face of record in the judgment sought to be reviewed. It is advantageous here to quote the words of caution given by the Hon'ble Supreme Court in **Special Director v. Mohd. Ghulam Ghouse : AIR 2004 SC 1467** which read as follows: _“This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding_ 9 Review Petition No.203 of 2019 in W.A.No.315 of 2019 _investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court.”_ 13. There is no sufficient ground to review the judgment. The review petition is liable to be dismissed. Consequently, the review petition is dismissed. No costs. ## (sd/-) ## **V.CHITAMBARESH, JUDGE** ## (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/08/03/2019 True Copy PS to Judge 10 Review Petition No.203 of 2019 in W.A.No.315 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE I** **SPECIAL LEAVE PETITION NO.5333/2019, FILED BY THE PETITIONERS BEFORE THE HONOURABLE SUPREME COURT, WITHOUT ANNEXURES** ## **ANNEXURE II** **COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT DATED 20/02/2019 IN SPECIAL LEAVE PETITION NO.5333/2019.** ## **ANNEXURE III** **COPY OF THE NOTICE NO.C.R.P/5427/16 DATED 22.02.2019 ISSUED BY THE JOINT REGISTRAR TO THE PETITIONERS.** ## **RESPONDENTS' ANNEXURES:** ## **NIL** TRUE COPY PS TO JUDGE