Kottukal Service Co-Operative ... vs State Of Kerala
2023 Latest Caselaw 6159 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    MONDAY, THE 12TH DAY OF JUNE 2023 / 22ND JYAISHTA, 1945
                       WP(C) NO. 2601 OF 2014
PETITIONER:

          KOTTUKAL SERVICE CO-OPERATIVE BANK LTD. No.T196,
          KOTTUKAL P.O., THIRUVANANTHAPURAM DISTRICT-695501,
          REPRESENTED BY ITS SECRETARY.
          BY ADVS.
          SRI.S.P.ARAVINDAKSHAN PILLAY
          SRI.S.A.ANAND
          SRI.PETER JOSE CHRISTO
          SMT.N.SANTHA


RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          CO-OPERATIVE DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM, PIN-695001.
    2     REGISTRAR OF CO-OPERATIVE SOCIETIES
          THIRUVANANTHAPURAM, PIN-695001.
    3     JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES
          THIRUVANANTHAPURAM, PIN-695001.
    4     ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE
          SOCIETIES, NEYYATTINKARA, THIRUVANANTHAPURAM
          DISTRICT, PIN-695121.
    5     AVANAKUZHY SERVICE CO-OPERATIVE BANK LTD.NO.2387
          THANNIMOODU, PIN-695123,
          REPRESENTED BY ITS SECRETARY.
    6     MULLOOR RURAL CO-OPERATIVE SOCIETIES LTD.
          MUKKOLA P.O., VIZHINJAM, PIN-695521,
          REPRESENTED BY ITS SECRETARY.
          BY ADVS.
          SRI.JOSEPH RONY JOSE
          SRI.ASHOK SURESH
          SRI.ASHOK SURESH
          SRI.JOSEPH RONY JOSE
          SMT.O.A.NURIYA
          SRI.K.B.PRADEEP
          SRI.T.M.RAMAN KARTHA
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 2601 OF 2014            2

                            JUDGMENT

This Court intends to be very brief since this writ petition is

the third in the sequence of ones filed by the petitioner - Bank.

2. The petitioner - Bank initially applied to the Registrar of Co-

operative Societies for permission to open a branch at 'Uchakkada'

which has, however, not granted citing their poor financial position.

They then preferred a statutory Appeal against this order and

approached this Court, to obtain Ext.P10 judgment, wherein, a

learned Judge took note of the controversy - that the afore

mentioned 'Uchakkada' was included as part of the area of

operation of both the petitioner - Bank and the 5 th respondent -

Society ('Avanakuzhy Service Co-operative Bank', hereinafter

referred to as 'the Avanakuzhy Bank'). On such basis, this Court

directed the Registrar of Co-operative Societies "to ascertain

whether the locality where the fifth respondent society proposes to

open a branch falls within the area of operation of that society or

within the area of operation of the fifth respondent society and if it

falls within the area of operation of both societies whether having

regard to the interests of both the societies, the fifth respondent

society should be permitted to open a branch in that locality".

3. It transpires that, in obedience to the afore directions,

Ext.P11 order was issued by the Joint Registrar, holding that,

consequent to the delimitation of wards, 'Uchakkada' came to be

included in both the areas of operation of the two Banks; but

without citing any further reason, concluded that the "Avanakuzhy

Bank" was justified in having been allowed to open a branch

therein. The records reveal that, against this order, the petitioner -

Bank preferred W.P(C)No.25957 of 2012; but that, pending the

same, they also moved Ext.P16 Appeal before the Government

impugning amendment of the Bye-law of the "Avanakuzy Bank",

namely Ext.P13, to the extent to which 'Uchakkada' was included

within their area of operation. The afore mentioned writ petition,

namely W.P(C)No.25957 of 2012, was thereupon disposed of

through Ext.P19 judgment, directing the Government to consider

the above said Appeal, which has now concluded in Ext.P20 order.

4. The petitioner - Bank impugns Ext.P20 on various grounds,

but primarily that it has refused to consider their Appeal on merits

merely saying that all the aspects are covered by the earlier Ext.P10

judgment of this Court, namely that delivered in W.P(C)No.22866 of

2011. They assert that this conclusion is untenable and incorrect;

and thus pray that Ext.P20 be set aside.

5. I have heard Sri.Peter Jose Christo - learned counsel for the

petitioner - Bank; Sri.T.M.Raman Kartha - learned counsel

appearing for the 5th respondent -Avanakuzhy Bank; Sri.K.B.Pradeep

- learned counsel appearing for the 6th respondent - Society and

Smt.Mable C.Kurian - learned Senior Government Pleader

appearing for the official respondents.

6. Smt.Mable C.Kurian - learned Senior Government Pleader,

rose in defence of Ext.P20, saying that, when Ext.P10 judgment had

concluded the issues fully, Government could not have done

anything more than to abide by the findings of this Court and that

this has been done in Ext.P20. She then explained that Government

has found 'Uchakkada' to be falling within the area of operation of

both the petitioner - Bank and the 'Avanakuzhy Bank' and

therefore, that both of them are entitled to open branches in the

said place, subject to their financial viability and capacity. She

concluded saying that the Government, after examination of all

relevant aspects, found that it is the 'Avanakuzhy Bank', which had

the financial capacity to open the branch; and therefore, that the

permission granted to them earlier was without error.

7. Interestingly, Sri.K.B.Pradeep - learned counsel appearing

for the 6th respondent, submitted that his client is now not in a

financial position to start a branch in 'Uchakkada' and therefore,

that they are not pressing any relief as of now.

8. Sri.Raman Kartha, learned counsel for the 5 th respondent -

'Avanakuzhy Bank', argued that Ext.P20 is without error because

the Government has found that, consequent to the delimitation of

wards in Kerala, 'Uchakkada' falls within the territorial operation of

both the petitioner - Bank and his client. He pointed out that, as is

also recorded in Ext.P10 judgment earlier delivered by this Court,

the financial condition of the petitioner - Bank is so poor that they

could not have been allowed to open any new branch, much less at

'Uchakkada'. He concluded saying that, since there was no

injunction against his client at any point of time in this writ petition,

they had opened their branch at 'Uchakkada' in the year 2013, as is

manifest from Ext.R5(a) and is operating the same for more than

ten years without any objections or complaints being raised.

9. The dialectical contentions of the parties being so recorded,

I will now proceed to analyze them, hypostatized on the materials

and inputs available.

10. As I have already said above, the petitioner - Bank

approached this Court for the first time in W.P(C)No.22866 of 2011,

to obtain Ext.P10 judgment, impugning the decision of the Registrar

of Co-operative Societies not to allow them to start a branch at

'Uchakkada'. However, in the said writ petition, a counter affidavit

was filed by the official respondents, saying that the 'Avanakuzhy

Bank' has already had its Bye-laws amended as per law, to include

'Uchakkada' within their area of operation; and it is noticing the

same that this court issued the directions which are extracted in

paragraph No.2 (supra).

11. Obviously, therefore, the Registrar was bound to consider,

apart from the question of area of operation, the issue whether

opening of branch in 'Uchakkada' area was to the benefit of either

of the two Banks. However, even one reads Ext.P11 very closely, the

latter aspect was never considered, though it was concluded that

since 'Uchakkada' falls within the area of operation of both the

banks, the permission granted to the 'Avanakuzhy Bank' was

without error.

12. As noticed above, the petitioner - Bank challenged

Ext.P11, including by approaching this Court through

W.P(C)No.25957 of 2012 and pending the same, they preferred

Ext.P16 Appeal before the Government, which was taken note of by

this Court, thus disposing of the writ petition with a direction to the

latter to take a decision on the same, through Ext.P19 judgment.

13. Indubitably, therefore, the Government was bound to

consider every aspect based on Ext.P16 Appeal, without being

trammelled by Ext.P10 judgment; but when they issued Ext.P20,

they have concluded that because of the afore mentioned Ext.P10

judgment, they cannot consider the Appeal of the petitioner - Bank

on its merits.

14. I am afraid that this stand of the Government, as reflected

in Ext.P20, cannot obtain legal imprimatur because, Ext.P16 was a

statutory Appeal against the amendment of the Bye-laws of the

'Avanakuzhy Bank' and the Government was, therefore, bound to

consider the same on its merits, within the parameters of law.

Instead of doing so, in Ext.P20, after finding that 'Uchakkada' was

an area which fell within the area of operation of both the Banks, it

went on to say that the decision to award permission to the

'Avanakuzhy Bank' to open a branch there, cannot be looked into or

reconsidered because of Ext.P10 judgment.

15. I am afraid that this falls foul from various angles,

especially because, even in Ext.P10, this Court had directed the

Registrar of Co-operative Societies to verify whether, even if

'Uchakkada' fell within the area of operation of both the Banks, it

would be in either of their interest to be granted such permission.

This has never been done, as is evident from Ext.P11; and, in any

event, once Ext.P19 judgment had been delivered, the Government

was bound to consider every aspect impelled in Ext.P16 in its

proper perspective.

16. In the afore circumstances, I cannot find favour with

Ext.P20 order now issued by the Government and am certain that

the matter will require to be reconsidered, adverting to the earlier

judgments as also to my observations above.

Resultantly, I allow this writ petition and set aside Ext.P20;

with a consequential direction to the competent Authority of the

Government to reconsider Ext.P16 Appeal, after hearing the

petitioner - Bank, as also the 5th respondent - Bank and adverting to

all relevant and germane aspects, including my observations above;

thus culminating in an appropriate new order as expeditiously as is

possible, but not later than six months from the date of receipt of a

copy of this judgment.

I clarify that I have not entered into the merits of any of the

contentions of the parties qua Ext.P16 Appeal and hence that all of

them are left open to be considered by the competent Authority,

when the afore exercise is completed, including the fact that the 5 th

respondent - Bank had set up its branch at 'Uchakkada' as early as

in the year 2013, without any interdiction being made by this Court

thereafter.

Needless to say, until such time as the afore exercise is

completed and the resultant orders communicated to the parties,

the branch operated by the 5th respondent - Bank at 'Uchakkada'

will be allowed to function as available today, without any

impediment.

Sd/-

DEVAN RAMACHANDRAN JUDGE MC/12.6

APPENDIX OF WP(C) 2601/2014

PETITIONER EXHIBITSEXHIBIT P1 EXHIBIT P1 TRUE COPY OF THE RESOLUTION NO.13 DT.14-

2-2010.

EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF AMENDMENT NO.10/99 DT.14- 3-1991 ISSUED BY R3.

EXHIBIT P3 EXHIBIT P3 : TRUE COPY OF THE AMENDMENT TO THE BYE LAWS.

EXHIBIT P4 TRUE COPY OF THE CERTIFICATE NO.A3-

6223/11 DT.11-8-2011 ISSUED BY THE SECRETARY OF KOTTUKAL GRAMA PANCHAYAT.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DT.27-5-2010 IN WPC 16078/2010 H OF THIS HON'BLE COURT.

EXHIBIT P6 TRUE COPY OF THE CIRCULAR NO.C.P.(1) 36685/06 DT.2-9-2006 OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES.

EXHIBIT P7 TRUE COPY OF THE LETTER NO.CP(3) 27140/2010 DT.4-1-2011 OF R2.

EXHIBIT P8 TRUE COPY OF THE GO(RT) NO.513/2011/CO-

OP. DT.16-9-2011.

EXHIBIT P9 TRUE COPY OF THE INTERIM ORDER DT.29-8-

2011 IN WPC 22866/2011 OF THIS HON'BLE COURT.

EXHIBIT P10 TRUE COPY OF THE JUDGMENT DT.15-3-2012 IN WPC 22866/2011 OF THIS HON'BLE COURT.

EXHIBIT P11 TRUE COPY OF THE ORDER NO.CRP(1) 12228/10 DT.3-10-2012 OF R3.

EXHIBIT P12 TRUE COPY OF THE ORDER NO.CR.O. 3985/88 DT.1-12-1990 OF R3.

EXHIBIT P13 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF AMENDMENT NO.85/2010 ON 9-9-2010 ALONG WITH THE RELEVANT EXTRACT OF THE CONNECTED PAPERS.

EXHIBIT P14 TRUE COPY OF THE RESOLUTION NO.12 DT.14-

2-2010 OF THE PETITIONER BANK.

EXHIBIT P15 TRUE COPY OF THE FORWARDING LETTER DT.17-

2-2010 ADDRESSED TO R4.

EXHIBIT P16 TRUE COPY OF THE APPEAL SUBMITTED BY THE PRESIDENT, KOTTUKKAL SERVICE CO-OPERATIVE BANK LTD. NO.T196 BEFORE THE GOVERNMENT EXHIBIT P17 TRUE COPY OF THE LETTER NO.C.P.(3) 54636/12 DT.6-3-2013 OF R2.

EXHIBIT P18 TRUE COPY OF THE ORDER NO.CRP(1) 12228/10 DT.7-3-2013 OF R3.

EXHIBIT P19 TRUE COPY OF THE JUDGMENT DT.21-3-2013 IN WPC 25957/2012 OF THIS HON'BLE COURT.

EXHIBIT P20 TRUE COPY OF THE G.O.(RT) NO.513/2013/CO-

OP DT.2-8-2013.

EXHIBIT P21 TRUE COPY OF THE NOTIFICATION PUBLISHED BY THE 5TH RESPONDENT EXHIBIT P22 TRUE COPY OF RESOLUTION NO.IV OF 19.10.2014 PASSED BY THE MANAGING COMMITTEE OF THE PETITIONER BANK RESPONDENTS EXHIBITS EXHIBIT R5(A) A TRUE COPY OF THE STATEMENT OF ACCOUNTS AND TRIAL BALANCE OF THE UCHAKKADA BRANCH OF THE 5TH RESPONDENT AS ON 31.3.2016 EXHIBIT R5(B) A TRUE COPY OF THE ORDER OF THE KERALA LOK AYUKTA IN COMPLAINT NO.1332/2012 DT.

3.10.2016