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1976 DIGILAW 230 (KER)

JOSEPH v. DY. REGISTRAR OF CO-OPERATIVE SOCIETIES, IDUKKI

1976-10-29

V.BALAKRISHNA ERADI

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Judgment :- 1. By the order Ext. P-1 dated 3rd August, 1976 passed by the Deputy Registrar of Co-operative Societies (General) Idukki (first respondent) the writ petitioner was nominated as a director of the Vazhithala Service Co-operative Bank, Limited under S.28 of the Kerala Co-operative Societies Act read with the relevant provision contained in the bye-laws of the said Co-operative Society providing for nomination being made to the Board of Directors by the Registrar. It would appear that on the same date, i. e, 3-8-1976 a report was submitted to the first respondent by the Assistant Registrar of Co-operative Societies (General) Thodupuzha, stating that the writ petitioner had stood as a candidate for election to the Board of Directors of the above-said Co-operative Society and had been defeated in the election. In the light of the said information that was brought to his notice, the first respondent issued the order Ext. P-3 dated 5-8-1976 cancelling the nomination of the petitioner to the Board of Directors of the said Co-operative Society which he had made as per his prior proceedings evidenced by Ext. P-1. The petitioner has thereupon come upto this court with this writ petition seeking to quash Ext. P-3. 2. It is contended on behalf of the writ petitioner that the 1st respondent had no jurisdiction or power to cancel the nomination that had been already made by him and that in any event such cancellation could be made only after affording an adequate opportunity to the person whose nomination was proposed to be cancelled. It is also urged on behalf of the writ petitioner that the reason stated by the first respondent in Ext. P-3 for cancelling the nomination of the petitioner is not valid or sound. 3. A detailed counter-affidavit has been filed by the first respondent-Deputy Registrar of Co-operative Societies (General) Idukki. It is stated therein that at the time when he issued the order evidenced by Ext. P-1 nominating the petitioner as a Director of the Vazhithala Service Co-operative Bank, the first respondent was not aware of the fact that the petitioner had stood as a candidate for the Board of Directors and had been defeated in the poll. It is further submitted by him in the counter-affidavit that the aforesaid fact came to the knowledge of the first respondent only immediately after the issuance of Ext. It is further submitted by him in the counter-affidavit that the aforesaid fact came to the knowledge of the first respondent only immediately after the issuance of Ext. P1 from a report dated 3-8-1976 submitted by the Assistant Registrar, Thodupuzha. It therefore became apparent to him that a mistake had been committed by him in nominating the petitioner, since a person defeated in the election is ineligible to be nominated to the Committee of a Co-operative Society as per the instructions contained in the Circular issued by the Registrar, dated 27-5-1966. It was in these circumstances that it became necessary to issue Ext. P3 cancelling the nomination of the petitioner made under Ext. P1. 4. After hearing both sides I do not find any grounds at all justifying interference by this Court with the action taken by the first respondent under Ext. P3. I do not find it possible to accept the petitioner's contention that the first respondent had no power to cancel the nomination that he had made, under Ext. P1. In nominating a person to the committee of a society in exercise of the power conferred by the bye-laws of the concerned society the first respondent was not discharging any judicial or quasi-judicial function but was only performing an executive act. A mistake committed in issuing an executive order is susceptible of rectification by passing a revised order, in the present case it is clear from the averments contained in the counter affidavit that the nomination of the petitioner had been made by the Ist respondent in ignorance of the fact that the petitioner is a person who had been defeated in the election. The Circular dated 27-5-1966 issued by the Registrar embodies a very wholesome principle and the terms thereof are binding on the first respondent. On discovering that the nomination of the petitioner made by him under Ext. P1 was directly contrary to the instructions contained in the Registrar's Circular dated 27-5-1966 the first respondent was under a duty to take immediate steps to rectify the said mistake. It h not possible to accept the petitioner's contention that once a nomination has been ma e, even if it was done under a manifest mistake there is no power vested with the Deputy Registrar to rectify the said mistake and cancel the nomination. 5. The further question is whether the action taken under Ext. It h not possible to accept the petitioner's contention that once a nomination has been ma e, even if it was done under a manifest mistake there is no power vested with the Deputy Registrar to rectify the said mistake and cancel the nomination. 5. The further question is whether the action taken under Ext. P3 can be said to be vitiated on the ground of contravention of the principles of natural justice. The order Ext. P1 was issued only on 3-8-1976. On the same day a report was submitted to the first respondent by the Assistant Registrar pointing out that the petitioner was not eligible to be nominated and immediately thereupon steps were taken by the first respondent to issue his proceedings evidenced by Ext. P-5 to cancel the nomination. It cannot be laid down as an absolute rule that whenever the nomination of a person to membership of a committee is cancelled the procedure of audi alteram partem should be strictly observed. Whether a notice and a hearing ought to be insisted upon will depend upon the circumstances of each case. The counsel for the petitioner stated frankly that his client has no contention that he is not a person defeated in the election. The petitioner was therefore not eligible to be nominated to the committee of the society The cancellation of the nomination being solely on the said ground the failure to give a notice to the petitioner cannot be said to have caused any prejudice to him. Even if a notice had been issued and an opportunity granted to the petitioner that would not have served any useful purpose since the prohi-tion against the nomination of a defeated candidate imposed by the Registrar's circular is in absolute terms and the said principle could not be deviated from by the first respondent. There was, therefore, nothing that the petitioner could urge by way of defence to the proposal for cancellation of his nomination even if he had been given any notice by the Deputy Registrar. What was done under Ext. P3 was only to correct a mistake and the said action was taken by the first respondent even before the ink was dry on the order Ext. P1. What was done under Ext. P3 was only to correct a mistake and the said action was taken by the first respondent even before the ink was dry on the order Ext. P1. On the facts and circumstances of this case, I am of the view that there was no obligation cast on the Deputy Registrar to issue a notice to the petitioner or to afford him a hearing before action was taken for rectifying the mistake that had been committed in nominating the petitioner as a director of the Co-operative Bank as per his earlier proceedings evidenced by Ext, P-3. I am supported in this view by the Full Bench decision of this Court in Ananthan Pillai v. State of Kerala (1967 KLT.1031). The Original Petition fails and it is dismissed but in the circumstances without any order as to costs. Dismissed.