Sulthan Bathery Co-Operative Urban Bank Ltd., v. State of Kerala

Kerala HC17 Dec 2018WP(C)/30991/2018

Case brief

AI extract

What is this about?

The High Court of Kerala set aside the Registrar's order deferring an application for new bank branches due to pending appeals. The Court held that mere pendency without interim stay does not justify delay and directed the Registrar to reconsider within one month.

What did the court decide?

Ext.P16 order dated 06/09/2018 set aside; respondent directed to reconsider matter within one month.

Sulthan Bathery Co-Operative Urban Bank Ltd., Vs State… — Company and Corporate | 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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MONDAY ,THE 17TH DAY OF DECEMBER 2018 / 26TH AGRAHAYANA, 1940

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WP(C).No. 30991 of 2018

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PETITIONER:

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SULTHAN'S BATTERY CO-OPERATIVE URBAN BANK LTD., NO.D2034, SULTHAN BATHERY, WAYANAD DISTRICT- 673 592, REPRESENTED BY ITS GENERAL MANAGER.

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BY ADVS. SRI.T.A.SHAJI (SR.) SRI.ATHUL SHAJI SRI.S.ABHILASH VISHNU

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVT., CO-OPERATION (C) DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001.

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2 THE JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, WAYANAD, P.O. KALPETTA - 673121.

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3 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM - 695001.

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BY SRI.BIMAL K.NATH, SR.GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 30991 of 2018

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JUDGMENT

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The petitioner, which is a Primary Co-operative Urban Bank, registered under the Kerala Co-operative Societies Act, 1969 and the rules made thereunder, has

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filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P16 order dated 06/09/2018 of the 3^rd respondent Registrar of Co-operative Societies, whereby Ext.P7 application made by the Bank, before the 2^nd respondent Joint Registrar of Co-operative Societies, seeking permission to open new branches stands rejected. The petitioner has also sought for a writ of mandamus commanding the 3^rd respondent, to grant permission to open new branches at Vythiri and Karthikulam in Wayanad District, as applied for in Ext.P7; a declaration that, the petitioner is entitled to open new branches within its area of operation,

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after obtaining permission and license from the Reserve Bank of India; and a writ of mandamus

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WP(C).No. 30991 of 2018

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commanding the 3^rd respondent to consider and pass orders on Ext.P7 forthwith, irrespective of the pendency of the writ appeals referred to in Ext.P16.

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On 24/09/2018, when this writ petition came

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for admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for respondents 1 to 3. The respondents were directed to file counter affidavit, if any, within three weeks.

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A counter affidavit has been filed by the 2^nd

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respondent. Paragraphs 5 to 7 of the said counter affidavit read thus:

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“5. It is submitted that the objection raised by the Kalpetta Urban Co-operative Society is tenable. In order that, this respondent also filed an appeal against the order. The appeals are pending and this respondent believe that this appeal will be allowed by this Hon'ble Court.

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6. It is submitted that the hindrance in front of this respondent is only the pending appeals before the Hon'ble Court. A decision on the petitioner's application will defeat the very purpose of the appeal itself. So the petitioner can wait until the disposal of the said appeals. This respondent has no other

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WP(C).No. 30991 of 2018

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option. There is no willful laches in not granting permission of new Branches on the part of this respondent.

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7. It is submitted that this respondent filed an appeal as WA No.2005/2016 and this Hon'ble Court has stayed the operation of the declaration that the Section 7(1) (c) of Kerala Co-operative Societies Act is ultra virus and unconstitutional. It is pertinent to note that the opening of new branch will be considered only after the decision taken on the appeal. It is therefore just and necessary that the Hon'ble Court may be pleased to keep away or reserve the order until the disposal of the said appeals. The 3^rd respondent had taken a decision

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as directed by this Hon'ble Court. There is no illegality in issuing an order as Ext.P16. The 3^rd respondent has considered all the material facts on issuance of Ext.P16 order. Hence there is no arbitrariness or illegality. There is no question of violation of the judgment. The 3^rd respondent had considered all the material aspects on issuance of Ext.P16 order. The 3^rd respondent has no other options since an order is issued by respondent No.3 will defeat the very purpose of the appeal. So the petitioner can submit the application after the disposal of the said appeal.”

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Heard the learned counsel for the petitioner

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and also the learned Senior Government Pleader

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appearing for the respondents.

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WP(C).No. 30991 of 2018

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The sole issue that arises for consideration

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in this writ petition is as to whether any interference is warranted on Ext.P16 order dated 06/09/2018 issued by the 3^rd respondent Joint

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Registrar.

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A reading of Ext.P16 order would show that, the request made by the petitioner in Ext.P7, seeking permission to open new branches stands rejected, on account of the pendency of W.A.Nos.2222/2016, 1684/2016, 1680/2016, 1683/2016 and 2005/2016. The learned Senior Counsel for the petitioner would contend that Ext.P7 application made by the

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petitioner, seeking permission to open new branches requires consideration at the hands of the 3^rd respondent Registrar, in terms of the guidelines

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issued vide Ext.P8 circular No.55/2015 dated 22/12/2015.

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The learned Senior Government Pleader would

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WP(C).No. 30991 of 2018

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point out that, the consideration of the request made by the petitioner in Ext.P7 is deferred for the time being on account of the pendency of the writ appeals referred to in Ext.P16. The learned Senior Government Pleader would also submit that, in those writ petitions this Court has not granted any interim stay.

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In Abdu Rahiman v. District Collector, Malappuram , [2009 (4) KLT 485 ] , a Division Bench of this Court held that merely because the judgment is stayed, it does not loose its binding precedent.

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Having considered the submissions made by the

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learned counsel on both sides and also perusing the pleadings and materials on record, this Court finds that the Ext.P7 application made by the petitioner, seeking permission to start new branches requires consideration at the hands of the 3^rd respondent,

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taking note of the statutory provisions under the Kerala Co-operative Societies Act, the rules made thereunder, and also the guidelines issued in Ext.P8

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WP(C).No. 30991 of 2018

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circular No.55/2015. Admittedly, this Court has not granted any interim stay in the writ appeals referred

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to in Ext.P16 order and as such, mere pendency of those writ appeals cannot be a reason for not considering the request made by the petitioner in Ext.P7.

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The learned Senior Counsel for the

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petitioner, after referring to Ext.P4 and P5 licences granted by the Reserve Bank of India for starting

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branches at Vythiri and Karthikulam would point out that an early disposal of Ext.P7 application is highly

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essential, since the validity of Ext.P4 and P5

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licences, which have already expired on 04/10/2018, has now been extended for a further period of 6 months.

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In such circumstances, this writ petition is

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disposed of by setting aside Ext.P16 order dated 06/09/2018 of the 3^rd respondent and the said

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respondent is directed to reconsider the matter with

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WP(C).No. 30991 of 2018

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notice to the petitioner and other affected persons, taking note of the statutory provisions under the Kerala Co-operative Societies Act, the Rules made thereunder and also the guidelines issued as per Ext.P8 circular No.55/2015 as expeditiously as possible at any rate within a period of one month from the date of receipt of a certified copy of this judgment.

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It will be open to the petitioner, to raise all legal and factual contentions before the 3^rd respondent, at the time of consideration of the Ext.P7 application.

ANIL K.NARENDRAN

JUDGE

WP(C).No. 30991 of 2018

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE REGISTERED BYE-LAWS OF THE PETITIONER BANK.
EXHIBIT P2	TRUE COPY OF THE COMMUNICATION DATED 23/03/2017 ISSUED BY THE DY. G.M. OF R.B.I.
EXHIBIT P3	TRUE COPY OF THE COMMUNICATION DATED 05/10/2017 ISSUED BY THE DY.G.M. OF R.B.I.
EXHIBIT P4	TRUE COPY OF THE LICENCE, BL NO.315 DATED 05/10/2017 IN RESPECT OF VYTHIRI BRANCH OF THE PETITIONER BANK ISSUED BY THE DGM OF R.B.I.
EXHIBIT P5	TRUE COPY OF THE LICENCE NO. BL. NO.316 DATED 05/10/2017 IN RESPECT OF KARTIKULAM BRANCH ISSUED BY THE DEPUTY GENERAL MANAGER OF R.B.I.
EXHIBIT P6	TRUE COPY OF THE CIRCULAR NO.39/11 OF THE REGISTRAR DATED 16/06/2011.
EXHIBIT P7	TRUE COPY OF THE APPLICATION DATED 23/10/2017 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT, ALONG WITH THE RESOLUTION DATED 20/10/2017 OF THE MANAGING COMMITTEE.
EXHIBIT P8	TRUE COPY OF CIRCULAR NO.55/2015 DATED 22/12/2015 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P9	TRUE COPY OF THE ORDER DATED 06/04/2013 OF THE 2ND RESPONDENT.
EXHIBIT P10	TRUE COPY OF THE ORDER DATED 26/03/2015 OF THE DEPUTY GENERAL MANAGER OF R.B.I.
EXHIBIT P11	TRUE COPY OF THE COMMUNICATION DATED 16/10/2015 OF THE REGISTRAR OF CO- OPERATIVE SOCIETIES.

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WP(C).No. 30991 of 2018

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EXHIBIT P12	TRUE COPY OF THE LETTER DATED 29/12/2015 OF THE JOINT REGISTRAR, WAYANAD.
EXHIBIT P13	TRUE COPY OF THE JUDGMENT DATED 09/08/2016 AS REPORTED IN 2016(4) K.L.T. 802.
EXHIBIT P14	TRUE COPY OF THE ORDER DATED 18/10/2016 IN WA NO.2005/2016.
EXHIBIT P15	TRUE COPY OF THE JUDGMENT DATED 22/06/2018 IN WP(C) NO.19531/2018 OF THIS HON'BLE COURT.
EXHIBIT P16	TRUE COPY OF THE ORDER DATED 06/09/2018 OF THE 3RD RESPONDENT.

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RESPONDENT'S EXHIBITS: NIL

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//TRUE COPY//

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PA TO JUDGE

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Sulthan Bathery Co-Operative Urban Bank Ltd., v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sulthan Bathery Co-Operative Urban Bank Ltd., v. State of Kerala

Case brief

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