W.P.(C) No. 9218 of 2017 (B) - The Chairman, Malabar Tourism Development Co-operative Society Limited vs Registrar of Co-operative Societies & Joint Registrar of Co-operative Societies

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **WEDNESDAY, THE 1ST DAY OF NOVEMBER 2017/10TH KARTHIKA, 1939** ## **WP(C).No. 9218 of 2017 (B) ---------------------------** **PETITIONER(S): -------------------THE CHAIRMAN, MALABAR TOURISM DEVELOPMENT CO-OPERATIVE SOCIETY LIMITED OLD BUILDING, P.C.A.R.B BANK NAYAK'S ROAD, KASARGODE-671 121** ## **BY ADV. SRI.BINISH MATHEW** |**RESPONDENT(S):**|**RESPONDENT(S):**| |---|---| |**-------------------**|| |**1.**|**THE REGISTRAR OF CO-OPERATIVE SOCIETIES**| ||**STATUE, NEAR PRESS CLUB, THIRUVANANTHAPURAM-695 001**| |**2.**|**THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES**| ||**KASARGOD.P.O., PIN-671 121**| ||**BY SPL. GOVERNMENT PLEADER SRI.K.S.MOHAMMED HASHIM**| ||**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON**| ||**01-11-2017, THE COURT ON THE SAME DAY DELIVERED THE**| ||**FOLLOWING:**| **WP(C).No. 9218 of 2017 (B) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **--------------------------------** **EXT. P1 TRUE COPY OF THE NOTICE ISSUED BY THE INSPECTING OFFICER UNDER SECTION 66 OF THE COOPERATIVE SOCIETIES ACT TO SRI. P.MADHAVAN NAIR EXT.P2 TRUE COPY OF THE STATEMETN GIVEN BY THE CHARIMAN OF THE SOCIETY BEFORE THE INSPECTING OFFICER EXT.P3: TRUE COPY OF THE ORDER DATED 16.3.2017 EXT.P4: TRUE COPY OF THE LETTER DATED 12.7.2013 GIVEN BY THE PRESIDENT OF THE SOCIETY TO THE ASSITANT REGISTRAR OF COOPERATIVE SOCIETIES, KASARAGOD EXT.P5: TRUE COPY OF THE MINUTES OF THE MEETING HELD ON DATES 5.1.2016, 4.7.2016, 26.12.2016 AND 9.1.2017 EXT.P6: TRUE COPY OF COMMUNICATION ISSUED BY THE 3RD RESPONDENT. EXT.P7: TRUE COPY OF THE AUDITED STATEMENT SUBMITTED BY THE PETITIONER SOCIETY** **RESPONDENT(S)' EXHIBITS: NIL -------------------------------------** **//TRUE COPY//** **P.A. TO JUDGE** **dlk** ## SHAJI P. CHALY, J. ------------------------------------- W.P.(C) No. 9218 of 2017 --------------------------------Dated this the 1st day of November, 2017 ## JUDGMENT This writ petition is filed by the petitioner seeking the following reliefs:- “i Issue a writ in the nature of certiorari quashing Exhibit-P3 Order; ii Declare that the 2[nd] respondent is bound to hear the petitioner before passing any orders under section 33 of the Kerala Co-operative Societies Act.” 2. Material facts for the disposal of the writ petition are as follows:- Petitioner is the Chairman of a Society registered under the Kerala Cooperative Societies Act, 1969 and the Society was established in the year 2006. The second respondent has issued orders under Section 66 of the Act, 1969, for the supervision and inspection of the petitioner society, evident from Ext.P1 notice. Petitioner has submitted Ext.P2 reply to the same. It is also stated that, the petitioner and three other Directors of the society had given statement. According to the petitioner, the Inspecting Officer on a preplanned script made a report in tune with the direction given by the ruling party and submitted the W.P.(C) No. 9218 of 2017 2 same to the second respondent on 15.3.2017. The writ petition was filed by the petitioner apprehending that the second respondent for political reasons will issue orders on supersession under Section 32 of Act, 1969 without giving notice to the petitioner. 3. It is further submitted that, after filing of the writ petition, second respondent has issued orders under Section 33 of Act, 1969, according to the petitioner with a prior date of 16.3.2017, evident from Ext.P3. It is also contended that, the copy of the order was not served to the petitioner till date. Any how, the writ petition was amended at that point of time. It is further contended that, no explanation was sought from the petitioner in respect of any irregularities in the functioning of the society before passing the said order. The copy of the report upon which the impugned order was passed was not given to the petitioner till date. The order was received from the court, evident from Ext.P3. It is the contention of the petitioner that, findings and observations contained in Ext.P3 order is false. It is further contended that, the Managing committee meeting of the society has taken place on various dates i.e., 5.1.2016, 4.7.2016, 26.12.2016 and 9.1.2017. That apart, it is submitted that, the general body meeting of the society has taken place on 7.7.2013, 27.7.2015 and lastly on 8.8.2016. Other contentions are also raised with respect to the W.P.(C) No. 9218 of 2017 3 attendance of the members for the general body meeting etc., etc. The letter given by the President of the society to the Assistant Registrar of Co-operative Societies and minutes of the meeting of the Managing Committee held on various dates are produced as Exts.P4 and P5. With the factual circumstances stated so, the sole ground raised in the writ petition is as follows:- “A. The 2[nd] respondent has appointed an administrator under Section 33 of the Co-operative Societies Act for the reason that the society has not convened the meeting consecutively for 6 months, The document produced as Exhibit-P5 will evidence that the said finding is not correct. The petitioner was not given prior notice before issuing Exhibit-P3 order. Thus the principles of natural justice as enshrined in the Indian Constitution has been violated.” 4. Therefore, according to the petitioner, interference of this Court is warranted to Ext.P3 order. Additional documents are also produced by the petitioner along with IA No.5526/2017, which are marked as Exts.P4 to P7. 5. A statement is filed for and on behalf of the second respondent refuting the allegations, claims and demands raised by the petitioner. Various circumstances are recited to in the statement W.P.(C) No. 9218 of 2017 4 justifying interference invoking the powers conferred under Section 33 of Act, 1969. According to respondents, Ext.P3 order is passed after complying with all the statutory requirements, and therefore, no interference is warranted to Ext.P3 order. 6. I have heard learned counsel for the petitioner, learned special Government Pleader and perused the pleadings and documents on record. 7. The summary of fact discussions made above would make it clear that the sole question to be considered is whether any manner of interference is warranted to Ext.P3 order passed by the second respondent dated 16.3.2017, apparently invoking the powers conferred under Section 33 of Act, 1969. No doubt, the same is an appealable order. As I have pointed out earlier, the sole ground raised in the writ petition is that there is no circumstances justifying the interference of the second respondent under Section 33 is the contention. The order impugned is passed purely on factual circumstances and under normal and ordinary circumstances, the writ court is not expected to interfere, unless there is patent illegality and arbitrariness. However, during the course of the argument the prime contention advanced by learned counsel for the petitioner is that, no notice was issued to the petitioner before passing an order under W.P.(C) No. 9218 of 2017 5 Section 33 of Act, 1969. In order to substantiate the said proposition, judgments of this Court in State of Kerala v. Urukunnu Service Cooperative Bank Ltd. [2013(2) KLT 74 ] and Rajeevan v. Sukumaran [2013(3) KLT 253] are brought to my notice. But, I find, those are judgments rendered in the background of Section 32 of Act, 1969. On a reading of the stipulations contained under Section 32, the same has no bearing with the stipulations contained under Section 33 of Act, 1969. So far as the contention with respect to non-issuance of notice to the petitioner is concerned, I have gone though Section 33 elaborately, and find that, the notice is contemplated as per the 1[st] proviso to Section 33(1)(b), wherein, it is provided that before making such order, the Registrar shall publish a notice on the notice board of the Headoffice of the society inviting objections to the making of the order within the period specified in the notice and consider such objections. The 2[nd] proviso stipulates that it shall not be necessary to publish such notice in cases where the Registrar is satisfied that it is not reasonably practicable to do so. There is no contention at all raised by the petitioner in the writ petition that a notice in accordance with law is not published in the notice board. The contention advanced by the petitioner is that, there is no notice issued to the petitioner before passing Ext.P3 order. In view of the particular provisions of law W.P.(C) No. 9218 of 2017 6 discussed above, I am of the considered opinion that, there is no statutory requirement on issuing any individual notice to the society. It is also clear from the 2[nd] proviso thereto that, when there are extra ordinary circumstances the Registrar is vested with powers to waive the notice if it is not practically to do so. In my considered opinion, when there is no contention with respect to non-publication of the notice as is prescribed as per the 1[st] proviso to Section 33(1)(b) of Act, 1969, it is to be legally presumed that such a notice was issued by the statutory authority. The contention advanced by learned counsel for the petitioner is that, the statutory authority is bound under law to show that it had published a notice in accordance law. In my considered opinion the statutory authority has passed Ext.P3 order in his official capacity, and therefore, as provided under Section 114(e) of the Indian Evidence Act, it is presumed that, Ext.P3 order is passed by the statutory authority in accordance with law. When there is such a statutory presumption available it is for the petitioner to plead and establish before the court that the statutory requirements contemplated under law is not carried out by the authority. As I have pointed out earlier, there is no such ground raised by the petitioner in the writ petition. Therefore, I am constrained to arrive at a conclusion that Ext.P3 order is passed, in accordance with law. W.P.(C) No. 9218 of 2017 7 8. More over, aggrieved by Ext.P3 order the society has not filed any proceeding, it is the Chairman of the society who has filed the writ petition. However, in the body of the writ petition it is stated that, petitioner is a society registered under the Kerala Co-operative Societies Act, 1969. 9. Having evaluated the situations factually and legally I am of the considered opinion that, petitioner has not made out a case justifying interference of this Court under Article 226 of the Constitution of India, there being no illegality or arbitrariness in Ext.P3 order. So also as per the provisions of the Co-operative Societies Act, 1969, petitioner is left with a remedy to prefer an appeal before the State. Therefore, leaving open the liberty of the petitioner to file any appeal in accordance with law, this writ petition is dismissed. 10. I make it clear that, the observations and directions contained above shall not be construed as an expression of opinion on merits of the matter or rival interest of the parties. Writ petition is disposed of accordingly. Sd/- ## SHAJI P. CHALY, JUDGE dlk/4/11/