The Palakkad Service ... vs The State Of Kerala
2021 Latest Caselaw 16851 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
             THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
                                &
               THE HONOURABLE MR.JUSTICE N.NAGARESH
 THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
                       WA NO. 1600 OF 2017
 AGAINST THE JUDGMENT DTD. 1.10.2014 IN W.P.(C)3229/2009 OF
                 HIGH COURT OF KERALA, ERNAKULAM
APPELLANTS/PETITIONERS:

  1       THE PALAKKAD SERVICE CO-OPERATIVE BANK LIMITED
          NO.P.1200
          KOPPAM AMSOM DESOM, PALAKKAD P.O.,PALAKKAD DISTRICT,
          REPRESENTED BY ITS VICE-PRESIDENT K.D.SUVARNAKUMAR.

  2       THE SECRETARY, PALAKKAD SERVICE CO-OPERATIVE BANK
          LIMITED NO.P.1200, KOPPAM AMSOM DESOM, PALAKKAD
          P.O.,PALAKKAD DISTRICT.

            BY ADVS.SRI.K.RAMAKUMAR (SR.)
            SMT.ASHA BABU
            SMT.R.S.ASWINI SANKAR
            SRI.S.M.PRASANTH
            SRI.T.RAMPRASAD UNNI


RESPONDENTS/RESPONDENTS:

      1     THE STATE OF KERALA, REPRESENTED BY THE SECRETARY
            TO DEPARTMENT OF CO-OPERATION, GOVERNMENT OF
            KERALA, THIRUVANANTHAPURAM.695 001.

      2     THE REGISTRAR OF CO-OPERATIVE SOCIETIES
            THIRUVANANTHAPURAM.695 001.

      3     THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
            PALAKKAD.678 001.
 W.A.No.1600 of 2017                       2




     4       THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
             (GENERAL)
             PALAKKAD.678 001.

     5       THE MARUTHA ROAD PANCHAYAT SERVICE CO-OPERATIVE
             BANK LIMITED NO.P.1253, MARUTHA ROAD, PALAKKAD
             DISTRICT.678 007.

             R1 TO R4 BY G.P.SRI.MOHAMAD HASHIM K S
             R5 BY ADVS.SRI.T.R.HARIKUMAR
             SRI.ARJUN RAGHAVAN




      THIS    WRIT    APPEAL   HAVING     COME   UP    FOR    ADMISSION   ON
12.08.2021,     THE    COURT   ON   THE       SAME    DAY    DELIVERED    THE
FOLLOWING:
 W.A.No.1600 of 2017                            3




                                    JUDGMENT

Ravikumar, J.

This appeal is directed against the judgment dated

01.10.2014 in W.P.(C) No.3229 of 2009. The petitioners therein are the

appellants. The 1st appellant is a registered Co-operative Society. Its

area of operation was extending to Palakkad Municipality, Marutha Road

Grama Panchayat, Karinkarapully area in Kodumbu village and Kavilpad

area of Puthupariyaram Grama Panchayat. The grievance of the

appellants was against the grant of registration to a new Society called

Marutha Road Panchayat Service Co-operative Bank Ltd., No.P-1253,

the 5th respondent. The writ petition was filed seeking the following

reliefs:

"(i) To call for the records leading to the issue of Exts.P4, P4(a) and P4(b), P6 and P10 and quash the same by issuance of a Writ of Certiorari or any other appropriate writ, order or direction;

(ii) To declare that Section 12(5), (6) and (7) of the Kerala Co-

operative Societies Act is unconstitutional, void and inoperative;

(iii) issue a writ of mandamus or any other appropriate writ, order or direction forbearing 2 nd respondent from implementing the amendment of the bye laws evidenced by Exts.P4, P4(a), P4(b) and P6."

2. The learned Single Judge after considering the rival

contentions declined to interfere with the impugned Ext.P10 order and

also held that Exts.P4, P4(a) and P4(b) could not be interfered with in

view of the findings in Ext.P5 judgment and in Ext.P10 order.

Consequently, the writ petition was dismissed.

3. The 5th respondent Society was indisputably registered

with Registration No.P 1253 and it has been functioning within the area

of Marutha Road Grama Panchayat since 2006. In the writ petition it is

stated that the petitioners' Society filed O.P.No.16677 of 1999 before

this Court challenging Exts.P4, P4(a) and P4(b). Ext.P4 is a copy of

order No.4891/96/O dated 14.06.1999 issued by the Joint Registrar of

Co-operative Societies, Palakkad, the 3rd respondent. Ext.P4(a) is the

certificate of registration of the amended bye-laws dated 14.06.1999.

Ext.P4(b) is the amendment brought, as per Ext.P4, under Section

12(6) of the Kerala Co-operative Societies Act, 1969 (for short 'KCS Act'

only), with respect to the area of operation of the Society. As per the

same, bye-law No.4 stood amended thus:

"The operation limit of the bank extends the entire Palakkad Municipality, Pirayiri Panchayat, Karinkarapully bhagom of Kodumbu Village and Kavilppadu Bhagam of Puthupariyaram Panchayat."

4. As per judgment dated 16.10.2003 O.P.No.16677 of 1999

was dismissed. A perusal of the same would reveal that various

grounds raised to challenge Exts.P4, P4(a) and P4(b) were rejected by

the learned Single Judge. The contention that the Joint Registrar got no

authority to pass order under Section 12(5) or (6) of the KCS Act was

rejected in view of the notification issued by the Government under

Section 3(2) of the KCS Act enabling all the Joint Registrars to exercise

all powers of the Registrar. The contention that in view of Ext.P1, which

is resolution dated 25.10.1997 of the General Body of the 1 st appellant

Society, the Joint Registrar could not have invoked the power under

Section 12(6) was also rejected. It was held that in the light of Section

12(6) of the KCS Act (which was then in force) the Registrar was

authorised to accept or act contrary to the resolution of the General

Body. In respect of the contention that the amendment would destroy

the Bank itself it was found that no pleadings in that effect were taken

in the original petition and further that the petitioner therein had not

pleaded the adverse effect that could be caused to the Society as a

result of the amendment. It was also held that since only one

Panchayat was excluded from the area of operation of the petitioner

Bank (the appellant Bank), in the absence of any material to show that

the amendment would substantially affect the Bank it could not be

accepted. It is based on such findings that O.P.No.16677 of 1999 was

dismissed. The petitioner therein had filed an appeal against the said

judgment and the same viz., W.A.No.1808 of 2003 was closed by the

Division Bench as per judgment dated 01.02.2006. The contentions in

the appeal raised to challenge the judgment in W.P.(C)No.3229 of 2009

are to be appreciated, according to us, based on the aforesaid aspects.

5. The contention of the learned Senior Counsel appearing

for the appellants is that the impugned judgment is completely contrary

to law and the learned Single Judge failed to decide the substantial

questions of law raised without adverting to the relevant legal and

factual issues. It is contented that the learned Single Judge failed to

notice that the interest of the Society represented by the appellants

would be substantially affected if a branch is permitted to be operated

illegally contrary to the bye-laws. It appears that the appellants

intended to canvass the position that opening of a Bank would

substantially affect the interest of the Society. It is also contended that

though the constitutional validity of Sections 12(5), (6) and (7) of the

KCS Act were challenged the learned Single Judge did not deal with the

same. Obviously, the contention of the appellants is that the 5 th

respondent Society was granted registration only subsequent to the

disposal of W.A.No.1808 of 2003 as per Ext.P5 judgment and thereafter

the appellants approached this Court challenging Ext.P6 in W.P.(C)

No.28731 of 2006. Furthermore, it is contended that the said writ

petition was disposed of as per Ext.P7 judgment finding that the

appellants herein got remedy under Section 83(1)(j) of the KCS Act. It

is contended that as per Ext.P7 this Court directed the Government to

dispose of an appeal, if filed against Ext.P6 within the time stipulated

thereunder and consequently, Ext.P8 appeal was filed, which ultimately

culminated in Ext.P10 order. Evidently, the attempt on the part of the

appellants is to canvass the possession that in such circumstances while

mounting challenge against Ext.P10 it would be open to the appellants

to challenge Exts.P4, P4(a) and P4(b), as well.

6. We have already noted that the 5th respondent Society

was registered with Registration No.P-1253 as early as in the year

2006. Obviously, it started its functioning since then. Though the

contention of the appellants is that earlier the appellants' Society had

approached this Court by filing O.P.No.16677 of 1999 challenging

Exts.P4, P4(a) and P4(b) a bare perusal of the judgment dated

16.10.2003 in the said original petition would reveal the fact that the

said original petition was not filed by the first appellant Society. It was

filed by one K.D.Suvarnakumar, who was the then Vice President of the

1st appellant Society. We have already taken note of the fact that all

the contentions raised by the said petitioner for challenging Exts.P4,

P4(a) and P4(b) were rejected by the learned Single Judge as per the

judgment in O.P.No.16677 of 1999. Ext.P5 judgment would reveal that

the appeal, carrying challenge against the said judgment, was closed

for the reasons specifically mentioned therein. It is a fact that even

then, the appellant therein did not seek for review of the judgment in

W.A.No.1808 of 2003. Thus, it can only be taken that the appellant

therein had accepted the judgment and allowed the same to become

final. If that be so, the question is whether it could be said that as per

Ext.P7 judgment this Court has left open the challenge against Exts.P4,

P4(a) and P4(b) to be raised in an appeal preferred against Ext.P6,

under Section 83(1)(j) of the KCS Act? On a careful scanning of Ext.P7

judgment we did not find anything which would reveal that this Court

while relegating the appellants to avail the remedy under Sec.83(1)(j)

of the KCS Act, when they raised challenge against Ext.P6 (Ext.P6

therein is marked as Ext.P6 in W.P.(C)No.3229 of 2009 as well), to

revive the already concluded challenge against Exts.P4, P4(a) and

P4(b). The fact is that none of the appellants herein had earlier

challenged Exts.P4, P4(a) and P4(b) and it was the Vice President of the

1st appellant Society, who challenged them. Of course, it was submitted

before the learned Single Judge, while O.P.No.16677 of 1999 was taken

up for hearing, that the said original petition was filed as authorised by

the Bank. Be that as it may, the fact is that despite suffering adverse

findings in respect of all the contentions specifically raised to assail

Exts.P4, P4(a) and P4(b) under the judgment in O.P.No.16677 of 1999

and when there is nothing in Ext.P5 which would reveal that all the

contentions raised against them were left open by the Division Bench

how could the appellants now be permitted to challenge Exts.P4, P4(a)

and P4(b) by placing reliance on Ext.P7 judgment.

7. True that pleadings in the writ petition would reveal that

the petitioners had taken up grounds to assail the constitutionality of

sub-sections (5), (6) and (7) of Section 12 of the KCS Act. However,

paragraph 3 of the impugned judgment would reveal that no

contentions based on any legal ground was advanced at the time of

hearing of the writ petition, before the learned Single Judge. Paragraph

3 of the impugned judgment reads thus:

"3. Even though the petitioners had sought for relief to the extent of declaring section 12(5), (6) and (7) of the Act as unconstitutional, void and inoperative, no contentions based on any legal ground was advanced at the time of hearing of the writ petition challenging the constitutional validity of the above said provisions. Hence this Court is proceeding to consider only the question of sustainability of the orders impugned."

8. In this context, it is also relevant to note that sub-

sections (5), (6) and (7) of Section 12 were omitted by Act No.8/2013

published in Kerala Gazette Volume No.434 dated 14.02.2013 with

effect from 14.02.2013, viz., before the judgment in W.P.(C)No.3229 of

2009 dated 01.10.2014. But then, the fact is that they were omitted

from the statute only from 14.02.2013 and Exts.P4, P4(a) and P4(b)

were issued at a time when the aforesaid provisions were in force. We

have taken note of the fact that the case of the appellants is that the

appellants' Society filed O.P.No.16677 of 1999 challenging Exts.P4,

P4(a) and P4(b) and that the judgment in the said original petition

would reveal that it was filed by one Mr.K.D.Suvarnakumar, who was

then the Vice President of the 1st appellant Society and further that he

too, contended therein that he was authorised to file the original

petition. Even if it is taken that the said Suvarnakumar was authorised

to file the said original petition by the Bank and it was legally

permissible, the fact is that there is nothing in the said judgment which

would reveal that the said petitioner had challenged the constitutional

validity of sub-sections (5), (6) and (7) of Section 12 of the KCS Act in

O.P.No.16677 of 1999. In fact, there is no case for the appellants that

in that original petition such a challenge was made. The contention

raised therein was that the Joint Registrar of Co-operative Societies got

no authority to exercise the powers of the Registrar. In view of the

notification issued by the Government under Section 3(2) of the KCS

Act enabling all the Joint Registrars to exercise all the powers of the

Registrar that contention was repelled as per the judgment in O.P.

No.16677 of 1999. A perusal of the judgment in O.P.No.16677 of 1999

would also reveal that contentions were taken therein to the effect that

in the light of resolution dated 25.10.1997 of the General Body of the

1st appellant Society the Joint Registrar was not legally justified in

taking a decision contrary to the resolution of the General Body and

that as a result of the amendment the Bank was substantially and

adversely affected and that they were considered and rejected

thereunder. How can such questions be re-agitated, if it had become

final, in this proceedings?

9. On the aforesaid aspect the learned Single Judge found

that the contention of the petitioners/appellants herein that the

challenge against Exts.P4, P4(a) and P4(b) were left open to be raised

in the appeal under Sec.83(1)(j) of the KCS Act, as per judgment in

W.P.(C)No.28731 of 2006 despite Ext.P5 judgment, could not be

accepted. The question is whether the said finding of the learned

Single Judge warrants interference? We have noted in detail the

findings in O.P.No.16677 of 1999 by the learned Single Judge. Ext.P5

judgment dated 01.02.2006 would reveal that those findings were not

set aside. So also, it is a fact that while closing the appeal the Division

Bench had not left open those questions which were found against the

appellant therein. In other words, there is nothing in Ext.P5 judgment

which would reveal that liberty was granted to the appellant therein or

to the Society to challenge Exts.P4, P4(a) and P4(b). When that be the

position, in the absence of anything which would reveal that Ext.P5

judgment was reviewed the appellants herein who were not parties in

the said writ petition as also in the appeal covered by Ext.P5, cannot be

heard to contend that they are at liberty to challenge Exts.P4, P4(a)

and P4(b) despite the adverse findings in the judgment in O.P No.16677

of 1999 and in view of the nature of Ext.P5 judgment, at this distance

of time. In such circumstances, if the contention of the appellants is

that the Society had challenged Exts.P4, P4(a) and P4(b) in O.P

No.16677 of 1999, on the ground of the principle of constructive res

judicata the appellants herein cannot be permitted to resurrect the

challenge against Exts.P4, P4(a) and P4(b) which had already attained

finality against them. In the aforesaid circumstances, viewing the

issues in any angle, we do not find any illegality, legal infirmity or

perversity in the above finding of the learned Single Judge that the

appellants herein could not be permitted to take up challenge against

Exts.P4, P4(a) and P4(b) in the light of Ext.P5 judgment.

10. Ext.P6 indicates only about the grant of registration in

favour of the 5th respondent. The indisputable fact, as noticed

hereinbefore, is that the 5th respondent Society was registered and

assigned the Registration No.P-1253. Obviously, it has been functioning

since 2006. The learned Single Judge found that Ext.P10 contains

factual findings arrived at by the 1st respondent based on various

reports received from the authorities concerned and based on inquiries

conducted. It would reveal that after such consideration it was found

that there is absolute necessity to have a Co-operative Society with the

area of operation exclusively for Marutha Road Panchayat for the

agricultural development in the Panchayat and for the integrated

upliftment of the people in the Panchayat. Taking into account the fact

that the 1st appellant Bank got an extensive area of operation even after

deletion of Marutha Road Panchayat and that even thereafter the 1 st

appellant Bank would be having area of operation extending in one

Municipality, one Panchayat and parts of two other Panchayats,

Government have arrived at a conclusion that functioning of the 5 th

respondent Bank would in no way affect the functioning or the financial

position of the 1st appellant Bank. According to us, when once the

correctness of Ext.P10 is not available to be looked into based on the

tenability or otherwise of Exts.P4, P4(a) and P4(b), the learned Single

Judge was correct in coming to the conclusion that the factual finding in

Ext.P10 requires no intervention under Article 226 of the Constitution of

India. The finding of the learned Single Judge that there was no

requirement to obtain exemption under Rule 7(1)(c) [sic. Section 7(1)

(c)] of the KCS Act] as area of operation of the 1st appellant Society

was already excluded from the area in question, where the 5 th

respondent was permitted to operate also invites no interference. The

question relating functioning of branch of the 1 st appellant Society,

which in the area of Marutha Road Panchayat was declined to be

considered by the learned Single Judge holding that it is not an issue

germane for consideration in the writ petition. Accordingly, the learned

Single Judge left open that issue to be taken up appropriately by the

Society, if so advised, before appropriate authorities. Since no decision

was made by the learned Single Judge on that issue and it was only left

open to be taken up appropriately before the appropriate authorities,

we are of the view that, that question does not call for consideration in

this appeal. The long and short of the aforesaid discussion is that the

impugned judgment in W.P.(C)No.3229 of 2019 warrants no appellate

interference. Accordingly, the writ appeal stands dismissed.

Sd/-

C.T.RAVIKUMAR Judge

Sd/-

N.NAGARESH Judge

TKS