Dismissed

G.Suganan v. the Jt Registrar of Co-Operative

Kerala HC8 Aug 2016WP(C)/14219/2010

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking to quash an order imposing a surcharge on co-operative society members. The court held that the order was appealable under the Act and that petitioners were provided sufficient opportunity to be heard, making Article 226 inapplicable.

What did the court decide?

The writ petition filed to quash the order under Section 68(2) was dismissed.

G.Suganan Vs the Jt Registrar of Co-Operative — Company and Corporate | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938

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WP(C).No. 14219 of 2010 (B)

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PETITIONER(S):

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G. SUGUNAN, S.L. BHAVAN, PUTHUKULANGARA, NEDUMANGAD, THIRUVANANTHAPURAM.

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T. ARJUNAN, KARTHIKA, PAZHAKUTTY, NEDUMANGAD, THIRUVANANTHAPURAM.

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B. HARIDAS, BHARGAVAM,

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ATTUKAL P.O.,NEDUMANGAD, THIRUVANANTHAPURAM.

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J.A. RASHEED, SUNITHA BHAVAN, NEDUMANGAD, THIRUVANANTHAPURAM.

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K. JAYACHANDRAN, KRISHNA VILASOM, ANAD P.O., NEDUMANGAD, THIRUVANANTHAPURAM.

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PAMPADI SHIHABUDEEN, PAMPADI HOUSE, PANAVOOR P.O., THIRUVANANTHAPURAM.

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C. APPUKUTTAN NAIR, ROADARIKATHU VEEDU, KARIKUZHY, PANAVOOR P.O.,THIRUVANANTHAPURAM.

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PARIYARAM MADHU, NEETHU BHAVAN,

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KADUVAKUZHY, MEENANKAL P.O.,THIRUVANANTHAPURAM.

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C. SAHADEVAN, ALAN RESIDENCE,

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KADUVAPPARA, PALAODE, THIRUVANANTHAPURAM.

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BY ADVS.SRI.B.S.SWATHY KUMAR, SMT.P.A.ANITHA.

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WP(C).No. 14219 of 2010 (B)

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RESPONDENT(S):

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1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM.

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***** ADDL. R2 IMPLEADED

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2. G. MOHANAN NAIR, PANCHAMI, ANADU P.O., NEDUMANGAD, THIRUVANANTHAPURAM-695 544.

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ADDL. 2ND RESPONDENT IS IMPLEADED AS PER ORDER DATED 10/02/2011 IN I.A. NO.16946/2010.

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R1 BY SR. GOVT. PLEADER SMT.C.S. SHEEJA. ADDL. R2 BY ADVS. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 14219 of 2010 (B)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE NOTICE NO.CRB 11085/08 DATED 22/10/2009 OF THE RESPONDENT.

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EXT.P2 COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER & OTHERS DATED 27/01/2010.

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EXT.P3 COPY OF THE ORDER NO.CRB 11085/08 DATED 24/02/2010 OF THE RESPONDENT.

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EXT.P4 COPY OF THE POSTAL COVER ADDRESSED TO THE 1ST PETITIONER.

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RESPONDENT'S EXHIBITS:-

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EXT.R2A COPY OF THE DEPOSIT LOAN RECEIPT DATED 02/12/2008.

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EXT.R2B COPY OF THE LIST SHOWING THE NAMES OF DEPOSITORS AND THE AMOUNT DUE.

//TRUE COPY//

P.S. TO JUDGE

rs.

SHAJI P. CHALY, J.

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W.P.(C)No.14219 of 2010

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----------------------------------------

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Dated this the 8^th day of August, 2016 JUDGMENT

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This writ petition is filed by the petitioners, who are

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elected President and members of the

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Thiruvananthapuram District Co-operative Marketing and Processing Society. In this writ petition petitioners have sought to quash Ext.P3 order passed by the first respondent purportedly under Section 68(2) of the Kerala Co-operative Societies Act (hereinafter called 'the Act').

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Material particulars for the disposal of the writ petition are as follows:-

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The managing Committee of the Society was removed

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from office on 19.1.2009 as provided under Section 33 of

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the Act on the ground that five persons out of ten members of the Managing Committee has resigned even

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W.P.(C)No.14219 of 2010

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though the term of office of the Managing Committee of which, first petitioner is the President was to expire only in May, 2010. Petitioners were served with notice on 24.4.2007 issued by the first respondent ordering enquiry under Section 65 of the Act, stating that Deputy Registrar (Vigilance) conducted an enquiry on the basis of a complaint dated 15.9.2006 with respect to the functioning and constitution of the Bank. The contention of petitioners is that, they were not served with documents referred in the said notice. Consequent to which first petitioner filed W.P.(C)No. 14854/2007 before this Court. Thereupon proceedings were quashed, but petitioners were again served with notice on 4.10.2007 and enquiry under Section 65 was ordered into the functioning of the Bank. Aggrieved by the same, petitioners again approached this Court by filing W.P.(C) No. 32125/2007 and the same was disposed of by a judgment dated 18.2.2008 quashing the order under Section 65 and directing the respondent to provide an

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W.P.(C)No.14219 of 2010

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opportunity to the first petitioner and also to give a copy of the letter dated 24.1.2007 enabling the first petitioner to place the objection and to take a final decision within three months, from receiving a copy of the judgment. Thereupon, petitioners have submitted a detailed objection against notice dated 10.12.2008 received by the society calling for an explanation in respect of certain defects reported by the Assistant Registrar, consequent to lightening inspection conducted on the basis of an order of the respondent based on certain news items published in a newspaper daily. Without waiting for reply, an enquiry was ordered under Section 66 of the Act into certain allegations which are exactly the same as that of the order directing enquiry under Section 65, which was quashed by this Court.

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The first petitioner was ousted under Section 33 alleging that there is lack of quarrum by an order dated 17.1.2009. The said order was challenged before this Curt by petitioners 1, 4 and 7 on the ground that the

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W.P.(C)No.14219 of 2010

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resignation letters were not submitted before the first respondent, who is the President of the Society and that petitioners 4 and 5 were not given any resignation letter and thereupon this Court directed the matter to be considered afresh, as to whether resignation is valid, and whether there is quorum, after hearing all the members of the Managing Committee. The said order was challenged by the Government by filing an appeal which according to the petitioners was dismissed.

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However, Ext.P1 notice was issued on 22.10.2009 under Section 68 asking petitioners to show cause as to why surcharge should not be imposed against them. Petitioners filed detailed reply as per Ext.P2 and thereafter filed W.P.(C)No.12483/2010 seeking to quash Ext.P1 and also for a direction to the respondent to consider, each and every point raised in Ext.P2, before passing any order. It is thereupon, as direction so issued, Ext.P3 impugned order is passed under Section 68(2) dated 24.2.2010. According to petitioners, consequent to

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W.P.(C)No.14219 of 2010

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the impugned order petitioners are prevented from contesting the election which is to take place shortly. That apart it is also contented that, though Ext.P3 order is an appealable order under Section 83(1)(J) of the Act and since the order is passed on political dictates, petitioners will not get any consideration if and when, a statutory appeal is filed. It is thus challenging Ext.P3, petitioners have filed this writ petition.

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The first respondent has filed a counter affidavit refuting the allegations, claims and demands raised by the petitioners. It is stated that, Ext.P3 order passed by the first respondent is in accordance with law and no manner of interference is required in the same invoking the power of judicial review conferred under Article 226 of the Constitution of India. That apart it is stated that, Ext.P3 order is passed after providing sufficient opportunity to the petitioners to contest the proceedings and only on evaluation of documents and fact situations the first respondent has arrived at the findings. Since

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W.P.(C)No.14219 of 2010

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petitioners have a contention that even though the order

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is dated 24.2.2010 the same was filed on a later date

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with a back date. It is contended that, Ext.P3 order was signed by the respondent on 25.2.2010. But, due to heavy work in fare copy section, there is unavoidable delay in typing Ext.P3 order, which resulted in the issuance of copy of Ext.P3 order at a later point of time.

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Additional second respondent submitted that, due to maladministration and misappropriation employed by the petitioners, additional respondent's fixed deposit is not returned by the Bank. According to the said respondent, there was clear misappropriation found in Ext.P3 and the factual circumstances leading to the misappropriation as well as maladministration was discussed in Ext.P3 order and the same is also passed by providing sufficient opportunity of hearing to the petitioners and finally culminated in the order imposing surcharge proceedings on the petitioners.

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Heard learned counsel for the petitioners and

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W.P.(C)No.14219 of 2010

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respective counsel appearing for respondents.

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The question to be considered is whether any manner of interference is required in Ext.P3 order passed under Section 68(2) of the Act. Predominantly, it is clear that, Ext.P3 order is an appealable order under Section 83(1)(J) of the Act. However, petitioners submitted that since Ext.P3 is issued on political dictates they will not get any consideration if an appeal is filed. First of all, when a statutory appeal is provided and when the subject matter is fully dependent on facts and circumstances of the case appeal is the proper remedy available to the affected parties. Merely because, petitioners apprehend that the same will not be duly considered by the appellate authority is not a sufficient ground for the petitioners from not seeking the statutory remedy provided under law. On a reading of Ext.P3 it is categoric and clear that several charges were raised against petitioners on the basis of the enquiry conducted. Petitioners have understood the charge as per Ext.P1, and submitted a

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W.P.(C)No.14219 of 2010

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detailed reply evident from Ext.P2, refuted the allegations raised in Ext.P1. Several opportunities were also provided to the petitioners to contest the proceedings. The proceedings were adjourned many times, in order to enable the petitioners to participate in the proceedings before the first respondent and finally on 6.2.2010 again time was sought for by the petitioners, which was declined and the matter was heard. It is categoric and clear from the said order, even though the matter was posted on 25.11.2009, 11.12.2009, 13.1.2010 and 27.1.2010 for hearing, petitioners were seeking time, and it was ultimately on 6.2.2010 the matter was heard. Therefore, it is vivid and clear that the contention raised by the petitioners that they were not provided with sufficient opportunity before Ext.P3 order was passed cannot be sustained under law. On a further scrutiny of Ext.P3 it is categoric and clear that each and every point under enquiry was considered by the first respondent and findings were rendered by assigning sufficient reasons.

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W.P.(C)No.14219 of 2010

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Therefore, the contention raised by the learned counsel for the petitioners that Ext.P3 order is a non speaking order cannot be sustained under law. On a reading of Ext.P3 it further reveals that, maladministration and misappropriation is at large which are based on factual circumstances and if petitioners had genuine and real grievances against Ext.P3, the remedy available and open to them under Section 83(1)(J) of the Act would have resorted to. Having not done so, invocation of Article 226 of the Constitution of India and requesting this Court to sit over the facts rendered in Ext.P3 by the first respondent, cannot be sustained.

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So far as the nature of proceedings are concerned, sufficient opportunity was provided to the petitioners by issuing Ext.P1, copy of the report was served, and which was replied by Ext.P2, and thereafter, after providing sufficient opportunity, Ext.P3 order was passed. Therefore, it can be seen that, the manner in which the proceedings were conducted by the first

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W.P.(C)No.14219 of 2010

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respondent cannot be said to be in any way arbitrary or il egal warranting interference of this Court under Artic e 226 of the Constitution of India.

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Taking into account the totality of the circumstances, I am of the considered opinion that petitioners have not succeeded in establishing the case put forth by them warranting interference of this Court exercising the power of judicial review . Upshot of the above discussion is that, writ petition fails and accordingly same is dismissed.

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Sd/-

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SHAJI P. CHALY, JUDGE

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dlk/9/8/

G.Suganan v. the Jt Registrar of Co-Operative

Case brief

What is this about?

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G.Suganan v. the Jt Registrar of Co-Operative

Case brief

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