WP(C).No.25046/2018 & WP(C).No.26253/2018: The Governing Body, Rajiv Gandhi House Construction Co-operative Society Ltd. v. State of Kerala & others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY ,THE 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940** # **WP(C).No. 26253 of 2018** ## **PETITIONER:** ## **THE GOVERNING BODY,** **RAJIV GANDHI HOUSE CONSTRUCTION CO-OP SOCIETY LTD.NO.C1598, REPRESENTED BY THE PRESIDENT, RAJIV GANDHI HOUSE CONSTRUCTION CO-OP.SOCIETY LTD, NARAVOOR, KUTHUPARUMBA,KANNUR DISTRICT, KERALA, PIN-670643.** **BY ADVS. SRI.VARUN C.VIJAY KUM.A.ARUNA** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF PORTS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM-695001.** - **3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES GENERAL KANNUR-670001.** - **4 ENQUIRY OFFICER** **SPECIAL GRADE INSPECTOR/MATTANNUR UNIT INSPECTOR, OFFICE OF THE CO-OPERATIVE SOCIETY ASSISTANT REGISTRAR(GENERAL), KUTHUPARAMBA-670643.** ## **BY ADV** **SMT. C. S. SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.09.2018, ALONG WITH WP(C).25046/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 25046 & 26253/18 2 ## **JUDGMENT** W.P.(C).No.25046/2018: The 1[st] petitioner in this writ petition is Rajiv Gandhi House Construction Co-Operative Society Ltd, a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969, represented by its Secretary and the 2[nd] petitioner is the President of that Society. The petitioners have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 order dated 24.12.2016 of the 3[rd] respondent Joint Registrar of Co-operative Societies, whereby the 4[th] respondent Inspector of Koothuparambu Unit in the Office of the Assistant Registrar of Cooperative Societies, Koothuparambu has been appointed as an Inquiry Officer under Section 65 of the Act, to conduct inquiry and submit a report as to the matters enumerated in that order in connection with the working of the 1[st] petitioner Co-operative Society; Ext.P3 notice dated 26.03.2017 issued by the 3[rd] respondent Joint WPC 25046 & 26253/18 3 Registrar; Ext.P4 inquiry report dated 23.12.2017 of the Inquiry Officer and also Ext.P12 notice dated 30.06.2018 issued by the 3[rd] respondent Joint Registrar. The petitioners have also sought for other consequential reliefs, including a declaration that the inquiry ordered under Section 65 of the Act, against the petitioners, vide Exts.P1, P3, P4 and P12 are totally unwarranted. 2. W.P.(C).No. 26253/2018: The petitioner in this writ petition is the Governing Body of Rajiv Gandhi House Construction Co-operative Society Ltd, the 1[st] petitioner in W.P.(C)No.25046/2018. The petitioner has filed this writ petition during the pendency of W.P(C)No.25046/2018, seeking the very same reliefs sought for in that writ petition. 3. A statement has been filed on behalf of the 3[rd] respondent opposing the relief sought for in W.P.(C)No.25046/2018. 4. Heard the learned counsel for the petitioners in these writ petitions and also the WPC 25046 & 26253/18 4 learned Senior Government Pleader appearing for the respondents. 5. The pleadings and materials on record would show that the proceedings are initiated against the 1[st] petitioner Society in W.P(C)No.25046/2018, based on Ext.P1 order dated 24.12.2016, under Section 65 of the Kerala Cooperative Socities Act. The Inquiry Officer, who was appointed in terms of Ext.P1 order, submitted Ext.P4 Inquiry Report, based on which the petitioners were issued with Ext.P3 notice by the 3[rd] respondent Joint Registrar, which was followed by Ext.P12 notice dated 30.06.2018 of the 3[rd] respondent Joint Registrar. On receipt of Ext.P12 notice, the petitioners submitted Ext.P13 reply dated 20.07.2018 and thereafter, approached this Court in these writ petitions with an apprehension that the proceedings initiated against the society under Section 65 of the Act are with intention to supersede the committee by invoking provisions under Section 32 of the Act. WPC 25046 & 26253/18 5 6. In the statement filed in W.P(C)No.25046/2018 by the 3[rd] respondent, the facts and circumstances which necessitated an inquiry under Section 65 of the Act and also the subsequent proceedings by the issuance of Ext.P3 and P12 notices have been stated. In paragraph 4 of the said statement it has been stated that, the petitioner apprehends Ext.P12 as a notice under Section 32 of the Act. No such notice under Section 32 of the Act is issued by the 3[rd] respondent, as alleged by the petitioner. 7. As already noticed, the inquiry conducted under Section 65 of the Act, is in terms of Ext.P1 order dated 24.12.2016 of the 3[rd] respondent Joint Registrar. Having failed to challenge the said order at appropriate time, the belated challenge made in this writ petition against the said order, after submission of Ext.P4 inquiry report, cannot be entertained. As far as the challenge made against Ext.P4 inquiry report of the 4[th] respondent Inquiry Officer is concerned, based on WPC 25046 & 26253/18 6 the findings of the said inquiry report, the petitioners have already been issued with Ext.P3 notice, to which they submitted Ext.P5 reply. Thereafter, the petitioners were issued with Ext.P12 notice, to which they submitted Ext.P13 reply. Therefore, further course, to be taken pursuant to Ext.P4 inquiry report has to be decided with reference to the explanation offered by the petitioners, as evidenced by Exts.P5 and P13. 8. In **State of U.P v. Brahm Datt Sharma [(1987) 2 SCC 179]** the Apex Court held that, when the show cause notice was issued under a statutory provision calling upon to show cause, the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford an opportunity of hearing and once cause is shown it is open to the authority to consider the matter in the light of the facts and submission WPC 25046 & 26253/18 7 placed before it and only thereafter a final decision in the matter could be taken. Therefore, interference by the Court before that would be premature. 9. In **Seimens Ltd v. State of Maharashtra** **[(2006) 12 SCC 33]** the Apex Court held that ordinarily, a writ court may not exercise its discretionary jurisdiction to entertain a writ petition questioning a notice to show cause unless the notice appears to have been without jurisdiction. ## 10. In **Union of India v. Vicco Laboratories** **[(2007) 13 SCC 270]** the Apex Court held that, 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 authorities concerned and satisfy the authorities concerned about the absence of case for proceeding against the person against whom the WPC 25046 & 26253/18 8 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 authorities concerned 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 the show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. The 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 factual adjudication would be necessary, interference is ruled out. **==> picture [386 x 10] intentionally omitted <==** decisions referred to supra, no interference under Article 226 of the Constitution of India is WPC 25046 & 26253/18 9 warranted on a show cause notice issued under a statutory provision unless the notice is shown to have been issued palpably without any authority of law or that it is an abuse of process of law. The mere assertion in the writ petition that the show cause notice has been issued without any authority of law or that it is an abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, no interference of this Court in exercise of the extraordinary jurisdiction under Article 226 of the Constitution is warranted. 12. Having considered the averments and also the grounds raised in these writ petitions and also the submissions made by the learned counsel on both sides, this Court finds that the petitioners have not made out a case warranting interference on Exts.P3 and P12 notices, in exercise of the extraordinary jurisdiction of this WPC 25046 & 26253/18 10 Court under Article 226 of the Constitution of India. 13. 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 WPC 25046 & 26253/18 11 Court laid down the general directions in the matter of supersession of the elected committee. 14. 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. 15. In the result, the challenge made in these writ petitions against Exts.P1, P3, P4 and P12 stands repelled as the petitioners failed to make out a case warranting interference, in exercise of the extraordinary jurisdiction of this WPC 25046 & 26253/18 **==> picture [13 x 9] intentionally omitted <==** Court under Article 226 of the Constitution of India. 16. It is for the 3[rd] respondent Joint Registrar to consider the explanation offered by the petitioners in Exts.P3 and P13 to Exts.P3 and P12 notices and pass appropriate orders thereon, with notice to the petitioners and after affording them an opportunity of being heard. **==> picture [386 x 13] intentionally omitted <==** taken, strictly in accordance with law, taking note of the law laid down by the Apex Court in ## **Sanjay Nagayach's case,** referred to supra. All legal and factual contentions raised by the petitioners are left open to be raised before the 3[rd] respondent Joint Registrar at appropriate stage. Sd/- ## **ANIL K.NARENDRAN, JUDGE** WPC 25046 & 26253/18 13 ## WP(C)No.26253/2018 ## APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 COPY OF THE ORDER DATED 24.12.2016 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2 COPY OF THE ORDER DATED 18.11.2017 ISSUED BY 3RD RESPONDENT. EXHIBIT P3 COPY OF THE NOTICE DATED 26.03.2017 ISSUED BY 3RD RESPONDENT. EXHIBIT P4 COPY OF THE REPORT DATED 23.12.2017 SUBMITTED BY THE SPECIAL GRADE INSPECTOR/MATTANNUR UNIT INSPECTOR, OFFICE OF CO-OPERATIVE SOCIETY ASSISTANT REGISTRAR, KUTHUPARAMBA. EXHIBIT P5 COPY OF THE REPLY DATED 23.04.2018. EXHIBIT P6 COPY OF THE QUESTIONNAIRE DATED 09.05.2018. EXHIBIT P7 COPY OF THE REPLY DATED 15.06.2017 ISSUED TO THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P8 COPY OF THE APPLICATION DATED 17.07.2015 SUBMITTED UNDER THE RIGHT TO INFORMATION ACT TOGETHER WITH REPLY DATED 12.06.2017. EXHIBIT P9 COPY OF THE REPLY DATED 21.12.2017 ISSUED BY STATE PUBLIC INFORMATION OFFICER/DEPUTY REGISTRAR ) (ADMINISTRATION) KANNUR. EXHIBIT P10 COPY OF THE LETTER DATED 01.12.2017. EXHIBIT P11 COPY OF THE ORDER DATED 02.11.2017. EXHIBIT P12 COPY OF THE NOTICE DATED 30.06.2018. WPC 25046 & 26253/18 14 EXHIBIT P13 COPY OF THE REPLY DATED 19.07.2018. RESPONDENTS' EXHIBITS : NIL // TRUE COPY // PA TO JUDGE RR