V.G. Vijayakumar and others v. Joint Registrar of Co-operative Societies (General), Kottayam and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN FRIDAY, THE 2ND DAY OF AUGUST 2013/11TH SRAVANA, 1935 WP(C).No. 19098 of 2013 (J) ---------------------------- PETITIONERS: ---------------- 1. V.G. VIJAYAKUMAR, VAZHACHARICKAL HOUSE, EZHACHERI P.O, PALA 2. PRASANTH KUMAR, ELIKUZHIYIL HOUSE, ARUNAPURAM P.O, PALA 3. SARALA DEVI, VADAKKANPARAMBIL HOUSE, PALA 4. PRADEEP.C.R, CHEERANKAVIL HOUSE, EDAMATTAM P.O, PALA 5. V. J. KURIAKOSE, VATTUKUNNEL HOUSE, RAMAPURAM P.O, PALA 6. SIVAPRASAD, SIVALAYAM HOUSE, RAMAPURAM P.O, PALA 7. SIBY THOTTUPURAM HOUSE, KIZHUTHADIYOOR P.O, PALA 8. SHERY MATHEW, VETTUKALLEL HOUSE, UZHAVOOR EAST P.O 9. A.S CHANDRAMOHAN, ANANTHANATTU HOUSE, MARANGATTUPALLY P.O BY ADV. SRI. P.N.MOHANAN RESPONDENTS: --------------- 1. THE JOINT REGISTRAR OF CO-OPERAITVE SOCIETIES (GENERAL), KOTTAYAM 686001 2. RONY MATHEW, THADIDIYEL HOUSE, LALAM VILLAGE, KIZHUTHADIYOOR KARA KIZHUTHADIYOOR P.O, MEENACHIL TALUK, PALA 686575 3. N.P SREEDHARAN NAIR, NADUVILEMADATHIL HOUSE, PULIYANNOOR P.O MEENACHIL TALUK, PALA 676575 4. K.A CHERIYAN, KAVIYIL HOUSE, RAMAPURAM P.O, PALA KOTTAYAM DISTRICT 686575 5. ANTONY JOSPEH, NELLALAPOIKAYIL HOUSE, POOVARANY P.O, PALA KOTTAYAM DISTRICT 686575 6. JOJO MATHEW, POOVATHNIYIL HOUSE, POOVARANY P.O, PALA KOTTAYAM DISTRICT 686575 7. THE CENTRAL MARKETING CO-OPERATIVE SOCIETY LTD. NO:K 1088, PALA, KOTTAYAM DIST.686 575 8. THE RETURNING OFFICER - (INSPECTOR OF CO-OP.SOCIETIES, RAMAPURAM UNIT) OFFICE OF THE ASSISTANT REGISTRAR (GENERAL) PALA – 686 575 9. THE CO-OPERATIVE ARBITRATION COURT THIRUVANANTHAPURAM – 695 001 R2,R4 & 6 BY ADV. SRI.LIJI.J.VADAKEDOM R BY GOVERNMENT PLEADER SHRI.RINY STEPHEN CHAMAPARAMBIL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19098 of 2013 (J) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------- EXHIBIT P1 TRUE COPY OF THE RESOLUTION DATED 04-06-2010 ISSUED BY THE SOCIETY EXHIBIT P2 TRUE COPY ELECTION NOTIFICATION DATED 18-11-2010 EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 11-10-2010 PUBLISHED BY THE RETURNING OFFICER EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 16-01-2010 PUBLISHED BY THE RETURNING OFFICER EXHIBIT P5 TRUE COPY OF THE LIST OF CANDIDATES PUBLISHED BY THE RETURNING OFFICER ON 25-11-2010 EXHIBIT P6 TRUE COPY OF THE RESOLUTION DATED 05-12-2010 REGARDING ELECTION OF MEMBERS TO THE SOCIETY EXHIBIT P7 TRUE COPY OF PETITION FILED BY THE RESPONDENT 2 TO 6 BEFORE THE IST RESPONDENT EXHIBIT P8 TRUE COPY OF PLANT IN ARC 4/2011 FILED BY THE RESPONDENT 2 TO 6 EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 03-01-2012 IN WPC NO 35259 OF 2011 EXHIBIT P10 TRUE COPY OF THE OBJECTION DATED 03-07-2011 FILED IN ARC 4/2011 EXHIBIT P11 TRUE COPY OF THE OBJECTION DATED 09-10-2011 FILED BY THE IMPLEADING PETITION N ARC 4/2011 EXHIBIT P12 TRUE COPY OF THE AWARD IN 4/2011 DATED 30-05-2011 RESPONDENT(S)' EXHIBITS NIL ------------------------- JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN,J ------------------------------- W.P(C) NO:19098 OF 2013 ---------------------------------Dated this the 2[nd] August, 2013. ## JUDGMENT The petitioners, elected members of the Managing Committee of Central Marketing Co-operative Society Ltd. No:K 1088, Pala have filed this writ petition seeking the following reliefs:- i) Call for records leading to Ext.P12 award and set aside the same by issuing a writ of certiorari. ii) issue direction to the Co-operative Arbitration Court to pass fresh award after considering the contentions of the petitioner on merit by perusing the original minute book of the society, the relevant documents relating to the publication of draft voters list, final list and other documents maintained by the Returning Officer and also report/decision of the Joint Registrar of Co-operative Societies (General) WPC 19098/2013 2 Kottayam in Ext.P7 application filed by the respondents 2 to 6. iii) Issue appropriate direction restraining the 1[st] respondent in implementing Ext.P12 award till the Arbitration Court passes a fresh award on merit.” According to Adv.P.N.Mohanan who appears for the petitioners, though the election of the petitioners have been set aside by Ext.P12 award of the ninth respondent, the same has been passed ex parte. My attention is drawn to the relevant portions of the said award wherein it has been noted by the Arbitration Court that, despite the grant of several opportunities to the defendants by the said court, they had not appeared or contested the case. Therefore, the award has been passed presuming that the allegations were true. According to the counsel, the ninth respondent ought to have called for the records of the case, examined them and ascertained the actual situation instead of passing the impugned award. Though the petitioners have a remedy of WPC 19098/2013 3 filing a statutory appeal against Ext.P12, they seek the grant of a breathing time to file the appeal since they apprehend that an Administrator would be appointed to take over the management of the society. 2. Adv.Liji J.Vadakedom appears for respondents 2, 4 and 6. According to the counsel, the petitioners were set ex parte on 14.5.2012. There were 14 or 15 postings of the case thereafter. However, the petitioners did not care to appear before the ninth respondent or to contest the case. Therefore, the ninth respondent had no other option but to proceed with the matter ex parte. 3. The learned Govt. Pleader Shri. Rinny Stephen Chamaparambil submits that an Administrative Committee appointed pursuant to Ext.P12 award has already taken charge on 29.7.2013. He has also handed over to me a copy of the report of taking charge submitted by the members of the Administrative Committee. Adv.P.N.Mohanan, counsel for the petitioners disputes the contention of the learned Government WPC 19098/2013 4 Pleader that the Administrative Committee has taken charge. The counsel has handed over to me a photostat copy of the relevant pages of the day book wherein, entries have been made and the accounts closed on 30.7.2013 by the President and the Secretary of the Society by affixing their signatures and seal. It is contended that without taking over the records of the Society and the cash, the assertion that charge has been taken over by the Administrative Committee cannot be countenanced. The learned Govt. Pleader responds to the above contention by pointing out that it is not necessary for the Administrator or the Administrative Committee to wait until they receive all the registers from the Society, for the purpose of taking charge. Reliance is placed on a Division Bench decision of this Court in Registrar of Co-operative Societies v. Sasi {1992(2) KLT 942}. It is contended that the Administrator can take charge on the basis of the order appointing him. WPC 19098/2013 5 4. Heard. It is to be noted at the very outset that since the petitioners have an equally efficacious statutory remedy against Ext.P12, this writ petition is not maintainable at this stage. It is for the petitioners to exhaust their statutory remedy before invoking the extraordinary jurisdiction under Art.226 of the Constitution. It is stated in the writ petition itself that they have invoked the jurisdiction of this Court only because of the fact that they apprehended the appointment of an Administrator to take over the affairs of the Society even before the statutory period for filing an appeal expires. However, according to the learned Govt. Pleader, an Administrative Committee appointed pursuant to Ext.P12 has already taken charge on 29.7.2013. It is true that the counsel for the petitioners has disputed the above contention by pointing out that the day book and other records of the Society were being maintained by the President and the Secretary till 30.7.2013. Adv.Liji J.Vadakedom on the other hand contends that the registers are all retained by the WPC 19098/2013 6 petitioners without handing them over to the Administrative Committee. Be that as it may, it is not possible for me within the limits of my summary jurisdiction under Art.226 of the Constitution to determine the correctness of the factual assertions made by one side and disputed by the other. However, in view of the dictum laid down by this Court in the decision reported in Registrar of Co-operative Societies v. Sasi (supra) the only conclusion possible is that the Administrative Committee has taken charge. While considering a similar contention, Thulasidas, J has observed as follows in paragraph 14 of the judgment:- “It is clear that his specific case is that he had assumed charge as administrator. There is no provision in the Act that when an administrator is appointed, he could start to function only after charge of office has been handed over to him and not otherwise. As far as we could see, the only provision where mention is made about taking charge is in R.38 which deals with cases coming under WPC 19098/2013 7 S.28 of the Act. That provision indeed, is inapplicable to the facts of this case. The administrator is entitled to assume charge even without a formal handing over of the same either by the Chairman or the managing committee. Under R.47 of the Rules, the custodian of the records and the properties of the society is its chief executive and not either the Chairman or the Committee. There is no procedure prescribed for handing over of records and properties to the administrator by the committee or the Chairman. He could assume charge on the strength of the order of his appointment by the Registrar, the appellant, who is the competent authority.” 5. His Lordship has further observed as follows in paragraph 15 of the judgment :- “There is a distinction between taking charge of the management of the society and taking over its records and properties. Assumption of charge of the records and properties and where a situation as contemplated in S.34 arises, resort could be WPC 19098/2013 8 had to get the records and properties by a warrant obtained from a Magistrate, on an application to be filed under sub-section (1) of the said section.” In view of the above binding dictum the contention that the Administrative Committee has not taken charge does not survive. For the foregoing reasons I do not find any grounds to interfere with Ext.P12 at this stage or to grant any of the reliefs sought for. This writ petition fails and is accordingly dismissed. Sd/K. SURENDRA MOHAN Judge jj /True copy/ P.S.to Judge WPC 19098/2013 9