N.Subramanian vs The Kerala State Co-Operative ...
2021 Latest Caselaw 12640 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
             THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
                                &
              THE HONOURABLE MR. JUSTICE K.HARIPAL
      MONDAY, THE 31ST DAY OF MAY 2021/10TH JYAISHTA, 1943
                       WA NO. 1387 OF 2020
    AGAINST THE JUDGMENT IN WP(C) 17284/2020 DATED 15.10.2020
                     OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:

           N.SUBRAMANIAN, CHAIRMAN, KURUVATTOOR SERVICE CO-
0




           OPERATIVE BANK LTD NO.D 1973, H.O KURUVATTOOR,
           KOZHIKODE DISTRICT.

           BY ADVS.GEORGE POONTHOTTAM (SR.)
           SMT.NISHA GEORGE


RESPONDENTS/RESPONDENTS:

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

      2    THE ELECTORAL OFFICER (ADDITIONAL REGISTRAR
           (CREDIT), KERALA STATE CO-OPERATIVE BANK, OFFICE
           OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
           THIRUVANANTHAPURAM 695 001.

      3    THE RETURNING OFFICER,
           KERALA STATE CO-OPERATIVE BANK, (JOINT REGISTRAR
           OF CO-OPERATIVE SOCIETIES(GENERAL)
           JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD
           POST OFFICE, THIRUVANANTHAPURAM DISTRICT 695 014
 W.A.Nos.1387 & 1390 of 2020          2




     4      REGISTRAR OF CO-OPERATIVE SOCIETIES,
            OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
            JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD
            POST OFFICE, THIRUVANANTHAPURAM DISTRICT 695 014

     5      THE KERALA STATE CO-OPERATIVE BANK,
            P.B NO.6515, COBANK TOWERS, PALAYAM,
            THIRUVANANTHAPURAM 695 033
            REPRESENTED BY ITS MANAGING DIRECTOR.

            R1 BY   ADVS.SRI.T.A.SHAJI (SR.)
            R1-R3   BY ADV.SRI.R.LAKSHMI NARAYAN
            R4 BY   SPL.G.P.SRI.MOHAMAD HASHIM
            R5 BY   ADV.SRI.GILBERT GEORGE CORREYA


THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.05.2021,
ALONG WITH WA.1390/2020, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 W.A.Nos.1387 & 1390 of 2020            3




             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
                                   &
               THE HONOURABLE MR. JUSTICE K.HARIPAL
      MONDAY, THE 31ST DAY OF MAY 2021 / 10TH JYAISHTA, 1943
                          WA NO. 1390 OF 2020
    AGAINST THE JUDGEMENT IN WP(C) 17799/2020 DATED 15.10.2020
                       OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:

            JAISON THOMAS,AGED 57 YEARS
0




            S/O. O.M. THOMAS, THE PRESIDENT, ANAPANTHI SERVICE
            CO-OPERATIVE BANK LIMITED NO.F 1516, P.O.
            ANGADIKADAVU, KANNUR DISTRICT-670706, RESIDING AT
            NIDHIRI HOUSE, ANAPANTHI P.O., KANNUR.

            BY ADV P.N.MOHANAN



RESPONDENTS/RESPONDENTS 1 TO 7:

      1     THE STATE CO-OPERATIVE ELECTION COMMISSION,
            REPRESENTED BY ELECTION COMMISSIONER, 3RD FLOOR,
            CO-BANK TOWERS, PALAYAM, VIKAS BHAVAN P.O.,
            THIRUVANANTHAPURAM-695033.

      2     ELECTORAL OFFICER TO KERALA STATE CO-OPERATIVE
            BANK AND ADDITIONAL REGISTRAR OF CO-OPERATIVE
            SOCIETIES (CREDIT) OFFICE OF THE REGISTER OF CO-
            OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN,
            DPI JUNCTION, THYCAUD P.O., THIRUVANANTHAPURAM-
            695014.
 W.A.Nos.1387 & 1390 of 2020          4




     3      RETURNING OFFICER TO KERALA STATE CO-OPERATIVE
            BANK,JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
            OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
            SOCIETIES, THIRUVANANTHAPURAM-695001.

     4      KERALA STATE CO-OPERATIVE BANK,
            REPRESENTED BY CHIEF EXECUTIVE OFFICER, CO-BANK
            TOWERS, THIRUVANANTHAPURAM-695001.

     5      INTERIM MANAGING COMMITTEE,
            REPRESENTED BY ITS CONVENER, KERALA STATE CO-
            OPERATIVE BANK, CO-BANK TOWERS,
            THIRUVANANTHAPURAM-695001.

     6      THE GOVERNMENT OF KERALA,
            REPRESENTED BY SECRETARY TO GOVERNMENT,
            CO-OPERATIVE DEPARTMENT, SECRETARIAT,
            THIRUVANANTHAPURAM-695001.

     7      THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
            DEPARTMENT OF CO-OPERATION, OFFICE OF THE
            REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR
            SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O.,
            THIRUVANANTHAPURAM-695014.

            R1 SRI.T.A.SHAJI (SR.)

            R1-R3 BY ADV.SHRI.R.LAKSHMI NARAYAN, SC, STATE CO-
            OPERATIVE ELECTION COMMISSION (SCEC)
            R4 BY SRI.GILBERT GEORGE CORREYA, SC, KERALA STATE
            CO-OPERATIVE BANK LTD.
            R6 & R7 BY SPL.G.P.SRI.MOHAMAD HASHIM



THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.05.2021,
ALONG WITH WA.1387/2020, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 W.A.Nos.1387 & 1390 of 2020                 5




                                JUDGMENT

Ravikumar, J.

Common judgment dated 15.10.2020 in W.P.

(C)Nos.17284/2020, 17473/2020, 17552/2020 and 17799/2020 is

under challenge in the above appeals. Nonetheless, the fact is that

only the petitioners in W.P.(C)Nos.17284/2020 and 17799/2020 have

preferred appeals against it.

2. The appellant in W.A.No.1387/2020 is the Chairman of

Karuvattoor Service Co-operative Bank Ltd.No.D 1973, a primary

agricultural Co-operative Society which was affiliated to the District Co-

operative Bank, Kozhikode. The appellant in W.A.No.1390/2020 is the

President of Anapanthi Service Co-operative Bank Ltd.No.F 1516 which

was affiliated to the District Co-operative Bank, Kannur. The appellants

were elected as delegates of their respective Banks to the State Co-

operative Bank, in terms of Rule 44A of the Kerala Co-operative

Societies Rules, 1969 (for brevity 'KCS Rules'). The appellants filed the

above mentioned writ petitions mainly seeking quashment of

notification No.E(2)1852/2020/S.C.E.C. dated 13.08.2020 issued by the

State Co-operative Election Commission for conducting election to the

Board of Directors of the Kerala State Co-operative Bank, on

25.9.2020, by issuing writ of certiorari, after calling for the records

leading to it. The writ court dismissed the writ petitions as per the

impugned common judgment. It is held that conduct of election in

terms of notification dated 13.8.2020 has become impossible and

therefore, necessarily the Election Commission has to bring out a fresh

notification. It was observed that it would be sufficient if the right to

challenge the voters' list to be published pursuant to such notification

on the ground of violation of Rule 35A(4) of the KCS Rules, if according

to the appellants/petitioners the said alleged defect subsists, is kept

intact. Consequently, the contention regarding the said violation was

left open. The respondents challenged the locus standi of the appellants

as well and it was dealt with on the following lines:-

"The respondents challenge the locus standi of the petitioners to question the election notification. The petitioners in the respective writ petitions contend that they are the delegates from the respective primary co- operative societies who are entitled to cast their vote in the election and hence can maintain their challenge. If the petitioners are delegates of the primary co-operative societies who are entitled to participate in the election, it cannot be said that they have no locus standi to challenge the election notification on available grounds. Anyhow, the challenge against the conduct of election having been negatived on merits, I do not consider it necessary to decide upon the locus standi of the petitioners. However, I leave open the right of the respondents to urge the ground of challenge in any subsequent round of litigation, if it arises."

3. The further contention of the appellants/writ petitioners

raised to get postponed the election in view of COVID-19 pandemic

situation was also repelled by the Writ Court holding that it is for the

administration/executive to consider the feasibility and the protocol for

the conduct of election. In the said circumstances mentioned as above

it was held thus:-

"In the result, the challenge against the conduct of election to the Managing Committee of the Kerala State Co-operative Bank is turned down. It will be open for the Kerala State Co-operative Election Commission to issue fresh notification for election and proceed in accordance with law. The writ petitions fail and are accordingly dismissed."

4. The captioned appeals are filed in the aforesaid

circumstances. The learned counsel on both sides submitted, when the

matters are taken up for consideration, that availing the liberty granted

under the impugned judgment fresh election notification No.E(2)1852/

2020/S.C.E.C. dated 19.10.2020 was issued for conducting election on

26.11.2020 from 10 a.m. to 4 p.m., if an election is required. Though

such a fresh election notification is issued it is not under challenge and

according to the learned counsel for the appellants in view of the

challenge against the impugned common judgment it is unnecessary to

challenge the fresh notification, issued pending the appeal.

5. Heard the learned counsel on both sides.

6. For proper appreciation of the case and the contentions of

the appellants it has become necessary to refer to the reliefs sought for

by them, in their respective writ petitions. In W.P.(C)No.17284/2020

the appellant in W.A.No.1387/2020 sought for the following reliefs:-

i. Issue a writ of certiorari calling for the records leading to Exhibit-P6 notification issued by the 1 st respondent notifying the election to the Board of Directors of the respondent Bank scheduling the polling on 25.09.2020 and to quash the same;

ii. Issue a writ declaring that Kerala State Co-operative Bank with primary agricultural credit co-operative societies as members has not come into being to elect the Board of Directors by the members of primary agricultural co-operative credit societies, as the final approval satisfying the conditions contained in Exhibit- P1 and P2 has not yet been given by Reserve Bank of India;

iii. Issue a writ declaring that the bye-laws of the respondent Bank has not been notified and passed as required under law and that the clause contained in Clause 16 of the bye-law is a nullity and cannot be acted upon;

iv. Issue a writ declaring that the reservation of seats by dividing the area of the society based on revenue districts and the notification following such division is opposed to Section 28(1) of the KCS Act."

In W.P.(C)No.17799/2020 the appellant in W.A.No.1390/2020 sought

for the following reliefs:-

" i) Call for the records leading to issue Ext.P3, P4 and P7 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction.

ii) issue a writ of mandamus or appropriate order or direction directing the first and second respondents to consider Ext.P9 representation coming within their

jurisdiction such as objection to voter list and issuing Ext.P3 election notification in violation of the statute, respectively.

iii) declare that Rule 28A(3) of the KCS Rules (Ext.P1) to the extent giving power "as prescribed" to made ward division in the bye-law is ultra vires of the third proviso to Section 28 of the KCS Act and consequential amendment, if any, made in the bye-law.

iv) Declare that an annual general body for election, cannot be held in 13 districts as mentioned in Ext.P3 and P4 notifications without any enabling provision for the same in the Act or the Rules.

v) Declare that as Ext.P7 voter list is not in terms of Rule 35A(4) r/w Rule 44A & 45 of the KCS Rules, and no election cannot be conducted on the basis of that voters list."

7. The afore-extracted reliefs sought for by the appellants in

their respective writ petitions would reveal that, despite commonness in

the grievances sought to be redressed, they challenged the election

notification dated 13.8.2020 on different grounds. We say so, because

the appellant in the former appeal made prayer No.(ii) to challenge the

very existence/constitution of Kerala State Co-operative Bank. It is in

this regard that declaration was sought for that Kerala State Co-

operative Bank with Primary Agricultural Credit Co-operative Societies

as members has not come into being to elect the Board of Directors by

the Primary Agricultural Credit Co-operative Societies as the final

approval satisfying the conditions contained in Exts.P1 and P2 has not

been given by the Reserve Bank of India. It is pertinent to note that

such a contention has not been taken up by the appellant in the writ

petition. At the same time, a careful perusal of the grounds and reliefs

sought for in the former appeal filed against the judgment in W.P.

(C)No.17284/2020 would reveal that the appellant has virtually

abandoned the challenge in that regard and confined his grievances

only regarding the notification for conducting election to the Managing

Committee of the Kerala State Co-operative Bank. At the same time,

the synopsis filed in the appeal would reveal that the appellant who is

the Chairman of Karuvattoor Service Co-operative Bank has stated

therein that the appellant is a Co-operative Society and it approaches

the Court through the Chairman who is also a delegate elected in terms

of Rule 44A of the KCS Rules. Further, it is stated in the synopsis that

the Kerala Co-operative Bank with Primary Agricultural Co-operative

Credit Societies as its members have not yet come into legal existence

after complying with the conditions stipulated in Exts.P1 and P2,

marked as such in the said writ petition. Thus, it is evident that after

taking up a specific contention in the writ petition that Kerala State Co-

operative Bank with Primary Agricultural Credit Co-operative Societies

as members has not come into being so as to elect Board of Directors,

after satisfying the conditions contained in Exts.P1 and P2, the

appellant has not chosen to pursue with the said case and contention in

the appeal. At any rate, a careful scanning of the contentions in the

appeal would reveal that no specific contention and grounds are taken

in the appeal in relation to the said contention though statements in

that regard have been specifically made in the synopsis to the appeal.

The statements made in the synopsis cannot be taken as part of the

pleadings in the appeal. Be that as it may, in view of the submission of

the learned Senior Counsel appearing for the appellant therein that the

appellant presses the said contention as well, we think it proper to

consider the question whether the appellant in the former appeal would

be justified in calling in question the election notification dated

13.08.2020 for conducting election to the Board of Directors of the

Kerala State Co-operative Bank raising the contention that the Kerala

State Co-operative Bank has not yet come into being to elect the Board

of Directors by the Primary Agricultural Credit Co-operative Societies,

especially after being elected as the delegate of Karuvattoor Service

Co-operative Bank to the Kerala State Co-operative Bank. Certain

aspects invite attention in this context. Firstly, W.P.(C)No.17284/2020

and W.A.No.1387/2020 are not filed by the Primary Co-operative

Society by name Karuvattoor Service Co-operative Bank whereas it is

filed by the petitioner in his individual capacity. The pleadings and

prayers would reveal the said position. In the affidavit accompanying

the writ petition it is stated that the petitioner is entitled to the reliefs

sought for in the writ petition. No resolution or any document evincing

the fact that he was authorised by the Karuvattoor Service Co-operative

Bank to challenge the election notification dated 13.08.2020 is

produced either in the writ petition or in the appeal. The very

contention of the petitioner is that the Primary Co-operative Society to

which he is the Chairman had elected him as a delegate to the Kerala

State Co-operative Bank, in terms of Rule 44A of the KCS Rules. That

apart, the contention of the petitioner going by his pleadings in the writ

petition and what is stated in the synopsis is that the District Co-

operative Bank, Kozhikode to which his Primary Co-operative Society

got affiliation, did not cease to exist. At the same time, it is evident

that the appellant himself would admit the fact that the District Co-

operative Bank, Kozhikode and twelve other District Co-operative Banks

passed resolutions to transfer their assets to the Kerala State Co-

operative Bank. Even after admitting the said fact his contention is that

it would not amount to amalgamation. Obviously, the appellant has not

challenged the resolution passed by the general body of the District Co-

operative Bank, Kozhikode in terms of the provisions under Section 14A

of the Kerala Co-operative Societies Act, 1969 (for brevity 'KCS Act').

The newly inserted Section 14A, after renumbering the existing Section

14A as 14AA, empowers the general body to pass by simple majority of

its members present and voting at the special general body meeting to

transfer its assets and liabilities in whole to the Kerala State Co-

operative Bank and going by the said provision such transfer would

take its effect from the date on which the Registrar approves such

resolution. Going by Section 14A(5) of KCS Act, on and from the date

of approval of the transfer of assets and liabilities of each District Co-

operative Bank by the Registrar without any further act, instrument or

deed they would stand transferred and vested in the Kerala State Co-

operative Bank. To understand the impact of such approval and the

consequential transfer and vesting of the assets and liabilities one has

to look into Section 74H (4) & (5) of the KCS Act. They read thus:-

"74H. Amalgamation of District Co-operative Banks to the Kerala State Co-operative Bank. (1).....

(4) Notwithstanding anything contained in section 15 of this Act, on and from the date of amalgamation of the transferor Banks and the transferee Bank, the transferor banks cease to exist and its registration stands cancelled:

Provided further that no new Registration Certificate is required for the transferee bank.

(5) The existing Board of Directors of transferor banks and transferee bank shall cease to exist on the date of amalgamation and the Government shall nominate an interim Board consisting of not more than three members for a period not exceeding one year from the date of amalgamation or till a newly elected Board of Directors takes charge, whichever is earlier."

8. In the afore-stated circumstances, when the fact is that

the General Body of District Co-operative Bank, Kozhikode to which the

Primary Co-operative Society of which the appellant is the Chairman,

had passed a resolution for transferring its assets and liabilities in terms

of Section 14A of the KCS Act and accordingly they stood transferred to

the Kerala State Co-operative Bank, in the light of the statutory effect

and impact of such resolution, the appellant, on his own, is not justified

and not legally entitled to raise a contention that the District Co-

operative Bank, Kozhikode still exists, and it is not amalgamated with

the Kerala State Co-operative Bank. The appellant, after getting

elected as a delegate of his Bank to the Kerala State Co-operative Bank

is certainly, not justified in raising such a contention. In this context, it

is also to be noted that virtually, in view of the provisions under the

KCS Act and the Rules it is the Primary Co-operative Society of which

he is the Chairman, which is the member of State Co-operative Bank

and the appellant is only elected as its delegate to the Kerala State Co-

operative Bank he cannot treat himself as a member of the State Co-

operative Bank. In this context, it is also not inappropriate to refer to

Section 14A (3) of the KCS Act. As per the said provision, upon passing

a resolution to transfer its assets and liabilities in whole to the Kerala

State Co-operative Bank the District Co-operative Bank concerned has

to issue a notice in writing to all its members and upon its receipt,

within the time provided thereunder, it would be open to the member

society of that District Co-operative Bank to opt for withdrawing its

shares, deposits or closing loans, as the case may be. There is

absolutely no case for the appellant that the Primary Co-operative

Society to which he is the Chairman pursuant to the passing of a

resolution by the District Co-operative Bank, Kozhikode in terms of

Section 45A(1) and receipt of notice contemplated under Section

14A(3) withdrew its shares, deposits or closed the loans availed from

the said District Co-operative Bank. Thus, when the Bank to which he

is a member virtually accepted and recognized the amalgamation the

petitioner in his individual capacity or his capacity as the Chairman of

Karuvattoor Service Co-operative Bank cannot challenge either the

amalgamation or canvass the position that the Kerala State Co-

operative Bank does not come into existence. In this regard it is

relevant to refer to the contentions of the appellant in the latter appeal.

Both in the writ petition viz., in W.P.(C)No.17799/2020 and in

W.A.No.1390/2020 arising therefrom the appellant therein

maintained/maintains the stand that the Kerala State Cooperative Bank

was formed on 29.11.2019, by amalgamating 13 District Co-operative

Banks of the State. In the writ petition the specific contention of the

petitioner in W.P.(C)No.17799/2020 was that all the Primary

Agricultural Credit Societies and Urban Co-operative Banks numbering

1557 are affiliated to the State Co-operative Bank and they constitute

the electorate of the State Co-operative Bank. It is relevant to note

that though the said appellant attacks the election notification dated

13.8.2020 raising various grounds, the appellant in the said appeal did

not deviate from the stand regarding the amalgamation. At the same

time, it is apposite to note that as in the case of the appellant in the

former appeal he is also a delegate of the bank to which he is the

President viz., Anapanthi Service Co-operative Bank to the Kerala State

Co-operative Bank in terms of Rule 44A of the KCS Rules. The pleadings

in the appeal as also in W.P.(C)No.17799/2020 would reveal that the

appellant is virtually challenging the notification for conducting election

to the Board of Directors of the Kerala State Co-operative Bank in his

individual capacity and at any rate, he has not produced copy of the

resolution or any other document revealing that Anapanthi Service Co-

operative Bank which is now a member of the Kerala State Co-

operative Bank authorised him to challenge the aforesaid election

notification.

When the position obtained in both the appeals is that the

appellants are delegates of their respective banks, which are members

of the Kerala State Co-operative Bank; the banks in respect of which

they are delegates have already passed resolution for amalgamation

and that the said banks did not authorise them to challenge constitution

of the Kerala State Co-operative Bank/election to the Board of Directors

of the said Bank, the challenge of the appellants against its constitution

as also election must fail. The appellants cannot claim any larger right

than the Society/Bank concerned. Being a member of the respective

Bank they are bound by such decisions for amalgamation. The

appellants have also not declined their delegation to the Kerala State

Co-operative Bank. In such circumstances, we do not think it

necessary to deal with other contentions. The appeals are liable to be

dismissed and accordingly, they are dismissed.

Sd/-

C.T.RAVIKUMAR Judge

Sd/-

K.HARIPAL Judge

TKS

APPENDIX OF WA 1390/2020

ANNEXURE/EXHIBITS

ANNEXURE A1 A TRUE COPY OF THE NOTIFICATION DATED 17/10/2020 OF THE FOURTH RESPONDENT.

TKS