Dismissed

Volga, v. Joint Registrar (General) of Co-Operative Societies

Kerala HC2 Jun 2022WA/506/2022

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed writ appeals challenging the disqualification of Managing Committee members and subsequent appointment of an Administrator. The court upheld the Registrar's finding based on the absence of signatures in the statutory Minutes Book, holding that it carries more probative value than the petitioners' Attendance Register or sitting fee vouchers.

What did the court decide?

The writ appeals were dismissed; the impugned judgment finding the petitioners absent and the consequent appointment of an Administrator were upheld.

Volga, Vs Joint Registrar (General) of Co-Operative… — Cooperative Societies | Kerala HC (2022)

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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 P.B.SURESH KUMAR

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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THURSDAY, THE 2^ND DAY OF JUNE 2022 / 12TH JYAISHTA, 1944

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WA NO. 500 OF 2022

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AGAINST THE JUDGMENT IN WP(C) 17200/2021 DATED 04.4.2022 OF HIGH COURT OF KERALA

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APPELLANTS/WRIT PETITIONERS:

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1 DILEEPKUMAR K. L. AGED 58 YEARS, S/O. LOHITAKSHAN, KOZHIKAPARAMBIL, ELAMKUNNAPUZHA, KOCHI - 682 503.

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2 A.K.BABU, S/O.KOCHANNAN, AMMAPARAMBIL, ELAMKUNNAPUZHA, KOCHI-682 503.

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3 N.K.RAJU, S/O.KOCHUMATHEW, NIKATHITHARA HOUSE, MALIPPURAM, KOCHI-682 511.

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4 GEORGE SIKKERA, S/O.AUGUSTINE SIKKERA, KAKKANASSERY HOUSE, ELAMKUNNAPUZHA, KOCHI-682 503.

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5 P.K.ANILKUMAR, S/O.P.A.KOCHAL, KULITHARA HOUSE, MALIPPURAM, KOCHI-682 511.

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6 P.K.BABU, S/O.KUMARAN, PARUTHIYEZHATH HOUSE, MALIPPURAM, KOCHI-682 511.

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BY ADVS. GEORGE POONTHOTTAM (SR.) ARUN CHANDRAN NISHA GEORGE

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RESPONDENTS/RESPONDENTS:

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1 THE JOINT REGISTRAR (GENERAL) CO-OPERATIVE SOCIETIES, ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI - 682 030.

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Writ Appeal Nos.500 & 506 of 2022 -: 2 :-

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2 THE ASSISTANT REGISTRAR (GENERAL) OF COOPERATIVE SOCIETIES, OFFICE OF THE ASSISTANT REGISTRAR (GENERAL), KOCHI-682 030.

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3 KARTHEDAM SERVICE CO-OPERATIVE BANK LTD. NO.123, MALIPPURAM, KOCHI-682 511, REPRESENTED BY ITS SECRETARY IN CHARGE.

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*4 THE STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN CODE-695 033., REPRESENTED BY ITS SECRETARY.

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IS IMPLEADED AS ADDL.R4 AS PER ORDER DATED 13/5/2022 IN I.A.2/22 IN WA 500/22.

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SRI.V.K.SUNIL SR GP R1 & R2 SRI.P.C.SASIDHARAN SC R3 SRI.LAKSHMI NARAYANAN R4

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.06.2022, ALONG WITH WA.506/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Writ Appeal Nos.500 & 506 of 2022

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-: 3 :-

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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 P.B.SURESH KUMAR

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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THURSDAY, THE 2^ND DAY OF JUNE 2022 / 12TH JYAISHTA, 1944

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WA NO. 506 OF 2022

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AGAINST THE JUDGMENT DATED 04.04.2022 IN WP(C) 17331/2021 OF HIGH COURT OF KERALA

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APPELLANTS/WRIT PETITIONERS:

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1 VOLGA, AGED 58 YEARS, W/O. OMPRAKASH, PARAYANGAT HOUSE, MALIPPURAM P.O, KOCHI-682 511 .

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2 M.B. AYOOB, S/O. BABU, MULLAPPALLY HOUSE, MALIPPURAM P.O, KOCHI-682 511.

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3 T.G. BIJU, S/O. GEORGE, THUNDIYIL HOUSE, MALIPPURAM, KOCHI 682 511.

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4 SEBASTIANRAJU K.J, S/O. JOSEPH, KOLLAMPARAMBIL, MALIPPURAM P.O, KOCHI-682 511.

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5 BINUKUTTAN M.K, S/O. KUNJAPPAN, MAKKIPADATHU, ELAMKUNNAPUZHA, KOCHI 682 503.

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6 PRAMEELA GOPALAKRISHNAN, W/O. GOPALAKRISHNAN, THEKKEDATH, ELAMKUNNAPUZHA, KOCHI 682 503.

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BY ADVS. GEORGE POONTHOTTAM (SR.) ARUN CHANDRAN NISHA GEORGE HANA KARNOLIA MADONA CYRIL

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Writ Appeal Nos.500 & 506 of 2022 -: 4 :-

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RESPONDENTS/RESPONDENTS:

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1 JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI-682 030

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2 THE ASSISTANT REGISTRAR (GENERAL) OF COOPERATIVE SOCIETIES, OFFICE OF THE ASSISTANT REGISTRAR (GENERAL), KOCHI-682030.

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3 KARTHEDAM SERVICE CO-OPERATIVE BANK LTD. NO. 123, MALIPPURAM, KOCHI-682 511, REPRESENTED BY ITS SECRETARY IN CHARGE.

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SRI.V.K.SUNIL SR GP R1 & R2 SRI.P.C.SASIDHARAN SC R3

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02.06.2022, ALONG WITH WA.500/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Writ Appeal Nos.500 & 506 of 2022

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-: 5 :-

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P.B.SURESH KUMAR & C.S.SUDHA, JJ.

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Writ Appeal Nos.500 & 506 of 2022

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Dated this the 2^nd day of June, 2022

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JUDGMENT

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P.B.Suresh Kumar, J.

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The above appeals are directed against the common judgment in W.P.(C) Nos.17331 and 17200 of 2021. Among the appeals, W.A. No.500 of 2022 is directed against the judgment in W.P.(C) No.17200 of 2021 and W.A.No.506 of 2022 is directed against the judgment in W.P.(C) No.17331 of 2021. The appellants are the petitioners in the writ petitions. Parties and documents are referred to in this judgment for convenience, as they appear in W.P.(C).No.17331 of 2021.

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The petitioners, six in number, were members of the Managing Committee of the third respondent, a Cooperative Society registered and functioning under the Kerala Co-operative Societies Act, 1963 (the Act). They were disqualified from holding the office under Rule 44 of the Kerala Co-operative Societies Rules, (the Rules) on the ground that

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Writ Appeal Nos.500 & 506 of 2022

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-: 6 :-

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they were absent in four consecutive meetings of the Managing Committee held on 14.12.2020, 18.12.2020, 23.12.2020 and 31.12.2020. Exts.P14 to P19 are the orders issued by the jurisdictional Joint Registrar, the competent authority, disqualifying the petitioners from holding office. Since the Managing Committee of the Society lost its quorum on account of the disqualification of the petitioners, an Administrator was appointed in terms of Section 33(1) of the Act. Ext.P13 is the order appointing the Administrator. W.P.(C) No.17331 of 2021 is instituted challenging Ext.P13 as also Exts.P14 to P19 orders and W.P.(C) No.17200 of 2021 is instituted by the remaining members of the Managing Committee challenging Ext.P13 order.

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The fact that absence in four consecutive meetings of the Managing Committee would invite disqualification of a member is not disputed in the writ petition. The contention of the petitioners, however, was that they have attended the meetings, and yet their signatures do not find a place in the minutes since the Minutes Book is not being properly maintained by the Secretary. The petitioners relied on the Attendance Register, vouchers regarding sitting fee as also

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Writ Appeal Nos.500 & 506 of 2022 -: 7 :-

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the entries in the Day Book indicating disbursement of sitting fee to them for having attended the meetings, in support of their contention. The contention of the petitioners in W.P.(C) No.17200 of 2021 was that there was non-compliance of the first proviso to Section 33(1) of the Act requiring publication to be effected in the notice board of the society calling for objection, before appointing Administrator. According to them, since the compliance of the aforesaid provision is mandatory, its non-compliance would make the resultant order illegal.

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As far as W.P.(C) No.17331 of 2021 is concerned, the learned Single Judge took the view that the presence of a member in a meeting is to be primarily proved by the marking of attendance in the minutes and since the minutes of the meetings do not contain the signatures of the petitioners on the relevant dates, it has to be presumed that they were absent in the said meetings. As regards the case of the petitioners that they have received sitting fee, it was observed by the learned Single Judge that receipt of sitting fee will not outweigh the probative value of the Minutes Book which is statutorily maintained. As far as W.P.(C) No.17200 of 2021 is concerned, the learned Single Judge took the view that the

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Writ Appeal Nos.500 & 506 of 2022 -: 8 :-

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requirement in terms of the first proviso to Section 31(1) is not mandatory; that insofar as there is no dispute to the fact that the Managing Committee lost its quorum on account of disqualification of the petitioners, the compliance of the said provision would not have served any purpose and therefore, the non-compliance of the provision does not vitiate the order appointing an Administrator. In the said view of the matter, the learned Single Judge dismissed the writ petitions affirming the orders impugned therein. As noted, the petitioners in the writ petitions are aggrieved by the decision of the learned Single Judge and hence, these appeals.

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Heard the learned Senior Counsel for the petitioners in the appeals, the learned Government Pleader as also the learned counsel for the third respondent.

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The learned Senior Counsel for the petitioners did not raise any argument as regards the decision in W.P.(C) No.17200 of 2021. Instead, it was argued that the decision in W.P.(C) No.17331 of 2021 is unsustainable, for in the event this Court accepting this argument, the decision impugned in W.P. (C) No.17200 of 2021 should necessarily be interfered with. As far as the decision in W.P.(C) No.17331 of 2021, the contention

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Writ Appeal Nos.500 & 506 of 2022 -: 9 :-

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raised by the learned Senior Counsel was that the petitioners have in fact attended the meetings, and the practice in vogue was to prepare a note of the decisions at the time of meeting and to prepare the minutes of the meeting later. It was submitted by the learned Senior Counsel that it is on account of the said reason that the signatures of the petitioners were absent in the minutes of the meetings on the relevant dates. The learned Senior Counsel attempted to reinforce the said submission placing reliance on the Attendance Register stated to have been maintained at the society as also on the entries in the Day Book concerning disbursement of sitting fee to the petitioners for having attended the meetings. The submission of the learned Senior Counsel, in the circumstances, was that merely for the reason that the signatures of the petitioners were found absent in the minutes of the meetings, the competent authority ought not have jumped into the conclusion that the petitioners were absent in the meetings. The relevant pages of the Minutes Book concerning the meetings would reveal that spaces where the petitioners ought to have affixed their signatures were scored out. According to the learned Senior Counsel, the scoring was not made by the Secretary of

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Writ Appeal Nos.500 & 506 of 2022 -: 10 :-

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the society and it was done in green ink by the competent authority on 23.01.2021 when the latter inspected the records. The learned Senior Counsel has also brought to our attention the minutes of one of the meetings in which the signatures of all the petitioners, except one, do reflect in order to strengthen his stand that one cannot solely rely on the minutes of the meetings to ascertain whether the members of the Managing Committee have participated in the meetings. The submission of the learned Senior Counsel, therefore, was that in a case of this nature, documents like Attendance Register, Day Book etc. should have been taken note of by the competent authority before arriving at the conclusion that the petitioners did not attend the meetings on the relevant dates. According to the learned Senior Counsel, the materials made available by the petitioners would convincingly show that they had in fact attended the meetings, and the finding rendered by the competent authority to the contrary is unsustainable in law.

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Per contra, the learned Government Pleader

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argued that the orders impugned in W.P.(C) No.17331 of 2021 are appealable in terms of Section 83 of the Act, and the writ petition, in the circumstances, was not maintainable.

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Writ Appeal Nos.500 & 506 of 2022 -: 11 :-

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According to the learned Government Pleader, the learned Single Judge ought not have entertained the writ petition on that sole ground, especially when, going by the contentions taken by the appellants, various factual issues were required to be adjudicated in the matter. It was also argued by the learned Government Pleader that in the light of Rule 29(2)(a) of the Rules, the Minutes Book recording the proceedings of the managing committee of a society being a statutory one, the entries therein shall be presumed to be genuine and merely for the reason that the Attendance Register produced by the petitioners, which is not a statutory document, indicates otherwise, a finding to the contrary cannot be arrived at. It was also argued by the learned Government Pleader that the competent authority in the order impugned in W.P.(C) No.17331 of 2021 has also taken note of the fact that sitting fee is being disbursed to the members of the Managing Committee irrespective of the fact as to whether they attended the meeting and therefore, no sanctity could be attributed to the entries in the Day Book indicating disbursement of sitting fee to the petitioners.

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The learned counsel for the third respondent

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Writ Appeal Nos.500 & 506 of 2022 -: 12 :-

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forcefully contended that the relevant pages of the Attendance Register produced by the petitioners along with the writ petition are documents fraudulently created by the petitioners for the purpose of these cases. In order to substantiate the said contention, the learned counsel has drawn our attention to the fact that the signatures of one of the members of the Managing Committee namely, P.L.Deepa which is absent in the Attendance Register of the dates namely, 18.12.2020, 23.12.2020 and 31.12.2020 find a place in the minutes of the said dates. It was also argued by the learned counsel that in the absence of any provision in the Act and the Rules as to how the minutes of the meetings of the managing committee is to be maintained, the practice followed in the various societies was not uniform and the Registrar of the Co-operative Societies, in the circumstances, issued a circular on 22.02.1972 as Circular No.11/1972 directing the co-operative societies to maintain Minutes Book in the manner indicated therein. According to the learned counsel, it is in accordance with the directions contained in Circular No.11/1972 that the minutes of the meetings of the Managing Committee in the case on hand have been prepared and therefore, the petitioners cannot be

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Writ Appeal Nos.500 & 506 of 2022 -: 13 :-

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heard to contend that a different procedure is being followed in the society.

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We have examined the arguments advanced by the learned counsel for the parties. We have also perused the records made available, especially the minutes of the meetings of the Managing Committee.

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As rightly pointed out by the learned Government Pleader, the orders disqualifying the petitioners from holding office which are impugned in W.P.(C) No.17331 of 2021 are appealable in terms of Section 83 of the Act. The fact that the said orders are appealable is not disputed by the learned Senior Counsel. According to him, the said remedy is not an efficacious one. As noted, the orders disqualifying the petitioners from holding office were challenged mainly on the ground that the petitioners have attended the meetings and that the factual finding to the contrary rendered by the competent authority is incorrect. In other words, what the petitioners sought in the writ petitions was an adjudication as to the correctness of the factual finding rendered by the competent authority that the petitioners have not attended the four meetings of the Managing Committee referred to in the

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Writ Appeal Nos.500 & 506 of 2022 -: 14 :-

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impugned orders. No doubt, if it is demonstrated that the alternative remedy available to a party invoking the jurisdiction of this Court under Article 226 of the Constitution is not an efficacious one, there is no impediment for this Court in exercising the jurisdiction under Article 226. But, we do not think that the said course could be adopted in a case of this nature where the correctness of a factual finding rendered by a statutory authority alone is the issue and where there is dispute between the parties as to the genuineness of some of the relevant documents. Be that as it may, insofar as the learned Single Judge has not relegated the petitioners to the alternative remedy, and adjudicated the issue on merits, we feel that it is inappropriate to relegate the petitioners to the alternative remedy available to them at this stage, and we therefore, propose to decide the matters on merits.

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As noted, the short question is as to whether the finding rendered by the competent authority that the petitioners have not attended the meetings of the Managing Committee of the society held on 14.12.2020, 18.12.2020, 23.12.2020 and 31.12.2020 is correct.

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The minutes of the meetings have been made

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Writ Appeal Nos.500 & 506 of 2022 -: 15 :-

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available by the competent authority along with the counter affidavit filed by him in the matter as Ext.R1(a). It is seen that at the beginning of each minutes, the particulars of the persons who have attended the meeting are shown with their signatures. Beneath the said particulars, the various decisions taken in the meeting are recorded. Beneath the decisions, it is seen that the particulars of the persons who attended the meetings have been recorded again with their signatures. All the minutes are prepared in this pattern. In all the minutes, although the names of the petitioners are recorded at the place where the particulars of the persons who have attended the meetings are recorded, their signatures are absent. That apart, the space earmarked for the signatures of the petitioners are seen scored out as well. Similarly, at the bottom portion in all the minutes except one, although the names of the petitioners are recorded, their signatures are absent. The space earmarked for the signatures of the petitioners in the bottom portion are also seen scored out.

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There is no provision in the Act and the Rules prescribing the manner in which the minutes of the meetings of the Managing Committee of the societies are to be prepared.

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Writ Appeal Nos.500 & 506 of 2022 -: 16 :-

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The general law as regards the conduct of meetings does not require that the minutes of the meetings are to be simultaneously recorded nor does it provide that all the participants of the meetings should affix their signatures in the minutes. It is seen that the Registrar of Co-operative Societies, nevertheless issued a circular on 22.02.1972 prescribing the manner in which minutes of the meetings are to be recorded, and the said circular, among others, provides that the blank spaces in the Minutes Book should be scored out. The relevant clause reads thus:

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“Blank spaces in the Minutes Book should be scored out and all corrections, overwritings, erasures etc. should be clearly noted at the end before the minutes are signed by the President and other committee members.”

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The extracted provision in the circular indicates beyond doubt that the requirement that the minutes should be signed by the President and other committee members was there even before the said circular and the same is re-affirmed. It is, therefore, clear that the minutes of the meetings of the Managing Committee which are made available are minutes prepared in accordance with circular No.11/1972. Going by the Minutes Book, the petitioners have not attended the meetings. As

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rightly pointed out by the learned Government Pleader, Rule 29(2)(a) of the Rules indicates that it is obligatory for every society to maintain Minutes Book for recording the proceedings of the Managing Committee. In other words, the Minutes Book is a statutory document and if so, what is recorded therein as to what is transpired in the meetings shall be presumed to be correct, unless the contrary is proved. It was argued by the learned counsel for the petitioners that the blank spaces in the minutes have in fact been scored out not by the Secretary, but by the competent authority when he inspected the records. It is unnecessary to go into that controversy since admittedly, the signatures of the petitioners are absent in all the four minutes at the places where attendance of the members of the committee who have participated in the meetings have been recorded.

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Let us now consider as to whether the petitioners have established that they have attended the meetings, to rebut the presumption attached to the genuineness of the contents of the Minutes Book. As noted, the main argument advanced by the learned Senior Counsel for the petitioners in this regard is that the names of the petitioners

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Writ Appeal Nos.500 & 506 of 2022

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-: 18 :-

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are reflected in the Attendance Register stated to have been maintained at the society. The fact that the Attendance Registers are maintained at the society is not disputed by the contesting respondents. As regards the Attendance Register, the specific case of the respondents is that after the inspection of the records by the competent authority, since it was not possible for the members to manipulate the Minutes Book, the petitioners have manipulated the Attendance Register so as to make it appear that they were present in the meetings on the relevant dates. Page numbers 14 to 17 in Ext.P7 are the relevant pages of the Attendance Register of the relevant dates produced by the petitioners. No doubt, signatures of the petitioners are appearing in those documents. But, we find force in the argument advanced by the learned counsel for the third respondent that the relevant pages of the Attendance Register produced before this Court are manipulated inasmuch as it does not contain the signature of one P.L. Deepa whose signature is appearing in the minutes of the relevant dates. Similarly, as rightly pointed out by the learned Senior Counsel for the petitioners, it is seen that the petitioners have received sitting fee for all the four meetings.

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Writ Appeal Nos.500 & 506 of 2022 -: 19 :-

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As rightly pointed out by the learned Single Judge, receipt of sitting fee by the petitioners cannot outweigh the probative value of the Minutes Book. In other words, no sanctity could be attributed to the entries in the Day Book indicating disbursement of sitting fee to the petitioners.

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In the light of the aforesaid discussion, we do not find any infirmity in the finding rendered by the competent authority that the petitioners have not attended the meetings of the Managing Committee of the society held on 14.12.2020, 18.12.2020, 23.12.2020 and 31.12.2020. Needless to say, the impugned judgment does not call for any interference.

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The writ appeals, in the circumstances, are devoid of merits and are accordingly, dismissed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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Sd/-

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C.S.SUDHA, JUDGE.

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ds 31.05.2022

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Writ Appeal Nos.500 & 506 of 2022

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-: 20 :-

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APPENDIX OF WA.NO.500 OF 2022

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APPELLANT ANNEXURE Annexure A1 TRUE COPY OF THE ELECTION NOTIFICATION BEARING NO.01/339/2022/E(2) S.C.E.C DATED 12.04.2022 ISSUED BY THE STATE CO-OPERATIVE ELECTION COMMISSION.

Volga, v. Joint Registrar (General) of Co-Operative Societies

Case brief

What is this about?

What did the court decide?

Volga, v. Joint Registrar (General) of Co-Operative Societies

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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