Quashed

Athikkal Valson v. Joint Registrar of Co-Operative Societies (G)

Kerala HC2 Mar 2018WP(C)/1585/2018

Case brief

AI extract

What is this about?

The High Court, Ernakulam, exercised writ jurisdiction under Article 226 to set aside an order removing the petitioners from the membership of a cooperative bank committee. The court held the order was passed in violation of the mandatory opportunity to be heard mandated by Rule 44(3) without remitting the matter on merits.

What did the court decide?

Ext.P2 order dated 11.1.2018 is set aside and the 2nd respondent is directed to reconsider the matter after affording an opportunity of being heard to the petitioners.

Athikkal Valson Vs Joint Registrar of Co-Operative… — Property and Title | Kerala HC (2018)

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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 ANIL K.NARENDRAN

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FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939

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WP(C).No. 1585 of 2018

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PETITIONER(S)

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1 ATHIKKAL VALSON, S/O KANNAN, ATHIKKAL HOUSE, VELIMANAM P.O. KANNUR, DIRECTOR, ARALAM SERVICE CO-OPERATIVE BANK.

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2 SEBASTIAN PUTHANPURAKKAL, PUTHANPURAKKAL HOUSE, ARALAM P.O. KANNUR, DIRECTOR, ARALAM SERVICE CO-OPERATIVE BANK.

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BY ADVS.SRI.P.N.MOHANAN

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SRI.C.P.SABARI

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RESPONDENT(S):

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1. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KANNUR- 670 001.

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2. ARALAM SCB, KEEZHPALLY P.O. KANNUR- 670 704, REP. BY ITS SECRETARY.

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3. JOSHY MATHEW, KUZHIKKOMBIL, PAYAM P.O..

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4. PAYAM SERVICE CO-OPERATIVE BANK, REP. BY ITS SECRETARY, PAYAM P.O, KANNUR- 670 704.

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R1 BY GOVERNMENT PLEADER SRI.K.P.HARISH R2 BY ADV. SRI.R.SREEHARI R3 BY ADV. SRI.M.SASINDRAN R4 BY ADV. SRI.CIBI THOMAS

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 1585 of 2018 (W)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 A TRUE COPY OF THE COMMUNICATION OF THE PAYAM SERVICE CO-OPERATIVE BANK LTD 26-12-2017

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EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 11-01-2018 OF THE FIRST RESPONDENT.

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RESPONDENT(S)' ANNEXURES

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ANNEXURE R1(A):- TRUE COPY OF THE VOTERS LIST PUBLISHED ON 14.8.2017.

/TRUE COPY/

PS TO JUDGE

TS 12/03/2018

ANIL K. NARENDRAN, J.

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W.P(C) No.1585 of 2018

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Dated this the 2^nd day of March, 2018

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J U D G M E N T

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The petitioners, who are members of the managing committee of the 2^nd respondent Service Co-operative Bank, are before this Court in this writ petition filed under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P2 order dated 11.1.2018 of the 1^st respondent Joint Registrar and seeking a declaration that they cannot be removed from the membership of the 2^nd respondent Society in the light of Ext.P2 order.

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On 16.1.2018 when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for the 1^st respondent. This Court issued urgent notice on admission by special messenger to respondents 2 to 4 returnable by 22.1.2018. The learned Senior Government Pleader was directed to get instructions and this Court has also ordered that status quo as on 16.1.2018 shall continue for a period of one week. The said interim order, which was extended from time to time, is still in force.

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W.P(C) No.1585 of 2018 :2:

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A statement has been filed on behalf of the 1^st respondent opposing the relief sought for in this writ petition, raising various legal and factual contentions.

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Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the 1^st respondent, the learned counsel for the 2^nd respondent Service Co-operative Bank, the learned counsel for the 3^rd respondent and also the learned counsel for the 4^th respondent Service Cooperative Bank.

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The sole issue that arises for consideration in this writ petition is as to the legality or otherwise of Ext.P2 order passed by the 1^st respondent dated 11.1.2018, whereby the petitioners are removed from the membership of the 2^nd respondent Service Co-operative Bank.

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One of the specific contentions taken by the petitioner in this writ petition is that the personal hearing was conducted on 29.12.2017 by one Suresh, who was the Joint Registrar (General) of Co-operative Societies, Kannur. In that personal hearing Adv.Joshy Jose, represented the petitioners and advanced arguments. Subsequent to the hearing the said Suresh retired from service on 31.12.2017. Thereafter, Ext.P2

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W.P(C) No.1585 of 2018 :3:

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order has been passed by his successor namely Mr.Krishnadasan, who is holding the charge of the Joint Registrar (General), Kannur, who had no occasion to hear either the petitioners or their counsel or other affected persons.

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The fact that Ext.P2 order is not issued by one who heard the petitioners on 29.12.2017 is not in dispute. The learned Senior Government Pleader would submit that after conducting the hearing on 29.12.2017, a draft order was approved by the then Joint Registrar, who heard the petitioners. Thereafter he retired from service on superannuation on 31.12.2017. After his retirement, the Joint Registrar holding charge of the 2^nd respondent passed Ext.P2 order dated 11.1.2018, which is perfectly legal which warrants no interference on the ground of violation of principles of natural justice.

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Rule 44 of the Kerala Co-operative Societies Rules, 1969 deals with disqualification of membership. Sub-rule (3) of Rule 44 provides that, if any person is or becomes disqualified to be a member of the committee, the Registrar may on his own motion or on a representation made to him by any member of the society or by its Financing Bank by an order in writing

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W.P(C) No.1585 of 2018 :4:

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declare that he shall cease to be a member of the committee of the society concerned from the date of such qualification. Before passing an order, the Registrar shall give such person an opportunity to state his objections, if any, against the proposed action and if the person wishes to be heard he shall be given an opportunity to be heard. Therefore, sub-rule (3) of Rule 44 mandates that, before passing an order disqualifying a member of the managing committee the Registrar shall give such person an opportunity to state his objections, if any, against the proposed action. Sub-rule (3) mandates further that, if the said person wishes to be heard, he shall be given an opportunity to be heard.

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Viewed in the light of the mandatory provisions contained in sub-rule (3) of Rule 44 of the Rules, Ext.P2 order passed by the 2^nd respondent can only be treated as one passed without affording the petitioners an opportunity of being heard, as provided under the said sub-rule and also in violation of the principles of natural justice. In that view of the matter, Ext.P2 order can only be set aside, thereby directing the 2^nd respondent to reconsider the matter with notice to the petitioners and after affording them an opportunity of being heard. The 2^nd

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W.P(C) No.1585 of 2018 :5:

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respondent shall take an appropriate decision within one month from the date of production of a certified copy of this judgment.

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It is made clear that this Court has not dealt with the rival contentions on merits and that, Ext.P2 order has been set aside only for the reason stated hereinabove.

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All the legal and factual contentions raised by both sides are left open to be raised before the 2^nd respondent at appropriate stage.

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Sd/- ANIL K. NARENDRAN JUDGE

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Athikkal Valson v. Joint Registrar of Co-Operative Societies (G)

Case brief

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Athikkal Valson v. Joint Registrar of Co-Operative Societies (G)

Case brief

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