WA No. 1554 of 2023 (The Kerala State Co-operative Housing Federation Ltd. & Another v State of Kerala & Others)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL & THE HONOURABLE MR. JUSTICE EASWARAN S. MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 WA NO. 1554 OF 2023** **AGAINST THE JUDGMENT IN WP(C) NO.22007 OF 2014 OF HIGH COURT OF KERALA** ## **APPELLANTS/PETITIONERS:** - **1 THE KERALA STATE CO-OPERATIVE HOUSING FEDERATION LTD. NO.4330, P.B. NO. 1896, KALOOR, COCHIN-17, REPRESENTED BY ITS MANAGING DIRECTOR., PIN - 682017** - **2 MANAGING DIRECTOR THE KERALA STATE CO-OPERATIVE HOUSING FEDERATION LTD NO. 4330, P.B. NO. 1896, KALOOR, COCHIN-17., PIN - 682017** **BY ADV A.N.RAJAN BABU** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, KERALA STATE CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001., PIN - 695001** - **2 REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM, PIN - 695001** - **3 KERALA KAITHARI BEEDI THOZHILALI BHAVANA NIRMAN CO-OPERATIVE SOCIETY LTD. NO. 4425, NEAR SANNIDHAN TOURIST HOME, KANNUR-2, REPRESENTED BY ITS SECRETARY., PIN - 670002** - **4 RAJEEV GANDHI BHAVANA NIRMAN CO-OPERATIVE SOCIETY LTD NO. 1598 KOOTHUPARAMBU, KANNUR, REPRESENTED BY ITS SECRETARY., PIN - 670001** **BY ADVS. KALEESWARAM RAJ THULASI K. RAJ(K/000814/2015)** **THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 03.06.2024, THE COURT ON** **THE SAME DAY DELIVERED THE FOLLOWING:** **WA NO. 1554 OF 2023** **2** ## JUDGMENT ## Amit Rawal, J. The Judgment dated 1.6.2023 rendered in W.P(C) No.22007 of 2014 is under challenge in this court. 2. The facts in brief are that the respondent No.4 Society under Section 8A(2) of the Co-operative Societies Act, submitted an application on 26.7.2007 to the appellant Kerala State Housing Cooperative Federation for affiliation. Within a period of 15 days, vide communication Ext.P2 dated 14.8.2007, respondent No.4 was informed that the application for affiliation cannot be granted owing to the financial constraints. 3. For a period of two years, there was a complete mundane. A complaint was submitted to the Registrar against the appellant of not having taken a call on the application for affiliation. It is on that complaint, action was initiated resulting into passing of the impugned orders. 4. The stand of the appellant was that besides the application of the 4[th] respondent there were ninety four (94) applications and all of them are pending approval. There was a determination as provided under Section 8A(2) of the Act. Therefore, respondent No.4 much less the authorities could not have interpreted the provisions in a different manner to grant deemed **WA NO. 1554 OF 2023** **3** affiliation. 5. Learned Single Judge rejected the argument of the appellant. One of the other ground was during the pendency of the writ petition since 2014, there was no interim stay. 6. Sri. Rajan Babu, learned counsel appearing on behalf of the appellant-writ petitioner in support of the memorandum of appeal submitted that the authorities have misread and misinterpreted the provisions of Section 8A(2) of the Act. 7. On plain and simple reading of the communication Ext.P2 dated 14.8.2007, there had been a determination which could not have been construed to be either accepted or rejected as mentioned in sub Section 2 of 8A of the Act to form an opinion of granting a deemed affiliation. No explanation has come forth on behalf of the respondent No.4 of acting under the deemed affiliation for a period of two years as the contents of the counter statement are conspicuously wanting viz-a-viz activities undertaken. Moreover, there is no compulsion upon the Society like the respondent No.4 to seek affiliation as expression used in sub Section (1) of Section 8A is 'may'. 8. Learned counsel appearing on behalf of the respondent supported the findings of the Single Bench as well as the authorities on the ground that it is settled law that whenever the provisions of the Act provides something to be done in a proper manner, in the **WA NO. 1554 OF 2023** **4** absence of the same, adverse inference is liable to be drawn on the authorities to take a call. The language of Ext.P2 does not expressly convey the rejection of acceptance and rightly so, the advantage of deemed affiliation was taken. It was just a precautionary measure that after two years an application/complaint was submitted to the Registrar against the appellant-Housing Federation Ltd. In support of the contentions relied upon judgment of the Supreme Court in Raj Soni v. Air Officer in charge Administration and Another (1990 KHC 839) . It was further submitted that the Government by noticing all the contentions of the parties and on reconsideration, found that the appellant had been remiss in not complying the provision of Section 8A (2) of the Act in letter and spirit. Moreover, efflux of time was also liable to be taken in a positive stride ie., in favour of the respondent No.4. 9. We have heard the learned counsel for the parties and appraised the paper book. Provisions of Section 8A (1) and (2) of the Act reads as under: 8A. Affiliation to apex Society.-(1) Every Primary Co-operative Society or Central Co-operative Society may, within such time and in such manner, as may be prescribed, apply for affiliation to the concerned apex society or Central Society, as the case may be. (2)Where the apex society or central society does not, within sixty days from the date of receipt of the application for affiliation, determine whether such affiliation should be given or not, such affiliation shall be deemed to have been given to the applicant society from the date on which the said period of sixty days expires. 10. On perusal of the provisions of sub Section (1), it is evident **WA NO. 1554 OF 2023** **5** that there is no mandate for any Society to seek affiliation with the Apex Society. It would also be worthwhile to extract the contents of communication dated 14.8.2007, Ext.P2. The same reads thus: It is informed that the matter of providing affiliation in the Federation will be considered as and when the financial position of the Federation improves enabling the Federation to sanction funds for the functioning of the Societies to which affiliation is newly given. 11. Thereafter there was complete impasse. In other words, respondent No.4 was in slumber and had woken up only in 2009. Registrar of the Co-operative Society was apprised regarding the inaction on the part of the appellant-writ petitioner. Noticing all the contentions while granting the interim stay, we had recorded as under: 2. Inter alia alleges that the learned Single Bench failed to notice the fact that application submitted by the respondent for affiliation with the Apex Society dated 26/07/2007 was rejected vide Ext.P2 within 15 days as per the byelaws vide communication dated 26/07/2007. Without availing the remedy of appeal as provided under Sub Section 3 of Section 8A of the Co-operative Societies Act, respondent/Society submitted an application to the Registrar in 2009 on the premise that the application as per 8A will be deemed to have been granted after expiry of sixty (60) days. Though the said order was assailed before the Government by alleging non compliance of the principles of natural justice, Ext.P4 was passed and thereafter, again when went to the Government Ext.P8 has been passed. All these factors do not at any point of time convey non compliance of the provisions of sub section 2 of Section 8A of the Act. 3. Issue notice before admission. Learned Senior Government Pleader takes notice for R1 and R2. Advocate Kaleeswaram Raj takes notice for R4. Notice to R3 by registered post. In the mean time there shall be interim stay of the impugned orders Exts.P3, P4 and P8 till the next date of hearing. 12. After having undergone the rigmarole as noticed above, the **WA NO. 1554 OF 2023** **6** Government vide Ext.P8 dated 3.7.2014 extracted herein below, though simultaneously ordered for holding an enquiry against the appellant of not taking an action strictly as per the provisions of Section 8A(2) of the Act, directed the appellant Housing Federation to grant affiliation. Ref: Letter No.2597/14/M/Co-op dated 29.4.14 of the Hon'ble Minister for Co-operation Your attention is invited to the refence cited. A copy of the application received as per reference cited is attached herewith for conducting enquiry. You are directed to inform this office of the action taken on the matter at your end. The action taken report regarding the action taken by you on the Government Order No- 816 / 2013 dated 17.12.2013 also shall be attached. The Government have issued orders, and without giving rise to further complaints, the said order shall be implemented and affiliation shall be given to the said society. The circumstance of giving order for a deemed affiliation shall be avoided. 13. Not only this, the pleading/counter of the respondent No.4 had been vague and evasive. No act or details of activities or any action taken under the deeming provisions have been explained to form a different opinion, particularly, the time consumed for an adjudication of the controversy. The plain and simple reading of the letter Ext.P2, extracted above, leaves no manner of doubt that there was a determination in application. At the best, in our considered view respondent No.4 ought to have made a separate application or request for revival of the application for seeking affiliation. All these factors have not been taken into consideration by the learned Single Bench, thus there is an abdication. Order is set aside. Writ petition is allowed. Consequently, Writ Appeal is **WA NO. 1554 OF 2023** **7** also allowed. However, in case the respondent No.4 submits a fresh application, the same shall be considered by the appellant, uninfluenced by the reasoning assigned in the earlier decision. Sd/- AMIT RAWAL JUDGE sab Sd/EASWARAN S. JUDGE **WA NO. 1554 OF 2023** **8** ## **APPENDIX OF WA 1554/2023** ## **PETITIONER EXHIBITS** **Exhibit -P2 True Translation of Ext P2 Exhibit -P7 Tru7e translation of Exhibit P7 Exhibit -P8 True Translation of Exhibit P8 EXHIBIT P5 True translation of Ext. P 5 EXHIBIT P3 True translation of Ext.P 3 EXHIBIT P4 True translation of Ext. P 4 EXHIBIT P6 True copy of Ext. P 6**