P. K. Sudhakaran S/o P. N. Kesavan v. Registrar of Co-Operative Societies, Thiruvananthapuram
2019-08-13
DEVAN RAMACHANDRAN
body2019
DigiLaw.ai
JUDGMENT : DEVAN RAMACHANDRAN, J. 1. This case throws up a rivetting question as to whether the Registrar/Joint Registrar of Co-operative Societies can direct the Liquidator, appointed to manage and dispose of the assets of a Society ordered to be wound up under the provisions of section 71 of the Kerala Co-operative Societies Act, to sell its assets in a particular manner, especially at a lower value, to another Society, so as to help and support the latter. 2. The petitioners, who claim to be the shareholders of the 4th respondent-Society, has approached this Court impugning Ext.P1 order issued by the Joint Registrar of Co-operative Societies, as per which, the Liquidator appointed for winding up the said Society has been directed to sell one of its properties to the 5th respondent-Society at its notified Fair Value. 3. The petitioners say that Ext.P1 order is illegal and incompetent, since the Joint Registrar has no jurisdiction or power to dictate to the Liquidator or to direct him as to how and in what manner the properties of the 4th respondent-Society are to be sold; adding that, in any event of the matter, the direction in Ext.P1 to sell the property at its Fair Value, which is much lower than the market value, is illegal and unlawful. 4. In response of the afore submissions made by Sri. C. Unnikrishnan-learned counsel for the petitioners, Sri. P.C. Sasidharan-learned Standing Counsel appearing for the 5th respondent-Society, began his submissions by asserting that the petitioners have no locus standi to maintain this writ petition, because they are neither members nor in any manner connected with the affairs of the 4th respondent-Society. After saying so, he explained that the reason why the Joint Registrar has issued Ext.P1 is that his client is a fledgling and struggling Society, without any property of their own nor with the fiscal resources to buy the property of the 4th respondent-Society at its market value. He says that the 5th respondent-Society is interested in the property concerned because it houses a building and since they have no such of their own, this will satisfy their infrastructural requirements. He thus prays that this writ petition be dismissed. 5. The learned Senior Government Pleader, Sri.
He says that the 5th respondent-Society is interested in the property concerned because it houses a building and since they have no such of their own, this will satisfy their infrastructural requirements. He thus prays that this writ petition be dismissed. 5. The learned Senior Government Pleader, Sri. Bimal K. Nath, appearing on behalf of the official respondents, submits that Ext.P1 has been issued for the reasons stated therein, which are, more or less, as stated by P.C. Sasidharan above; contending that there is nothing wrong in the said directions. He says that since the 4th respondent-Society is one registered under the provisions of the Kerala Co-operative Societies Act and Rules, the Joint Registrar has the statutory obligation to ensure that they are also sufficiently protected; if necessary, by enabling them to buy a property for themselves at a price that they can afford. He says that the 5th respondent-Society is still struggling for their existence and therefore, that the Joint Registrar found it fit that the property of the 4th respondent-Society be given to them at Fair Value. He submits that since the Fair Value is one fixed by the Revenue indicating the true worth of the property, the directions in Ext.P1 is without error. 6. I notice that, in response to the submissions of Sri. P.C. Sasidharan with respect to the locus standi of the petitioners, an affidavit has been filed by them-styled as a reply affidavit-wherein it is conceded that the 1st petitioner does not have any shares in the 4th respondent-Society but that the 2nd petitioner is its member from its commencement and owns a share of Rs. 10/-. The petitioners, therefore, through their learned counsel-Sri. C. Unnikrishnan, maintain that their locus cannot be questioned. 7. As regards the other assertions made by Sri. P.C. Sasidharan and the learned Senior Government Pleader are concerned, Sri. C. Unnikrishnan submits that the impugned order, namely Ext.P1, grants the benefit to the 5th respondent-Society without citing as to why it should be so given and the Joint Registrar has exercised certain jurisdiction without analyzing whether he has any power to do so. He says that in such view of the matter, Ext.P1 cannot be found in tenable in law. 8. Sri.
He says that in such view of the matter, Ext.P1 cannot be found in tenable in law. 8. Sri. Arun Chandran, the learned amicus curiae submits that there are no provisions in the KCS Act and Rules with respect to the power of the Joint Registrar to make directions to a Liquidator, but he refers to Section 73(2) of the KCS Act to show that the Liquidator is under the control of the Joint Registrar. He, however, says that the provisions of the KCS Act and Rules are otherwise silent as to how the Joint Registrar can direct the Liquidator to act in a particular manner or to follow a particular modus while liquidating the assets of a Society. 9. I have considered the afore submissions and I find some force in the submissions of Sri. C. Unnikrishnan that Ext.P1 order cannot be allowed to operate without further scrutiny. This is because, an answer to the essential question as to whether the Joint registrar has any power to issue directions in matters of liquidation of a Society under the provisions of the KCS Act and Rules is not discernable from the said order. Secondly, there is nothing in Ext.P1 to show why the property of the 4th respondent- Society should be sold to the 5th respondent-Society at its notified Fair Value and not at its market value or why the Liquidator should not sell it through a public auction and attendant procedure, as is normally employed for such purposes. These issues are completely silent in Ext.P1, except stating that the 5th respondent Society is to be protected and saved. 10. Prima-facie, I see no legal provision to enable the Joint Registrar to act indulgently to protect a Society, since none of the provisions of the KCS Act or Rules permit sale of the property of another Society at a value lower than its market value for such purpose. This is more pronounced in the case of liquidation of a Society and normally, the Liquidator is legally obligated to endeavor to obtain the highest price through acceptable and sanctioned procedure for sale. In that view, it is unclear how and why the Joint Registrar has intervened and directed the Liquidator to sell the property of the 4th respondent in a particular manner, especially at an apparent lower value.
In that view, it is unclear how and why the Joint Registrar has intervened and directed the Liquidator to sell the property of the 4th respondent in a particular manner, especially at an apparent lower value. I am certainly of the view that the Joint Registrar must, therefore, reconsider this aspect in terms of law quickly. 11. Resultantly, in the afore prospective, I order this writ petition and set aside Ext.P1, not because I have found against it affirmatively in this judgment; but so as to pave way for a fresh consideration of all the issues by the Joint Registrar, after affording an opportunity of being heard to the second petitioner as well as to the Authorized representative of the 5th respondent Society. This exercise shall be completed by the Joint Registrar as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. 12. I close this judgment commending Sri. Arun Chandran, learned amicus curiae, for the assistance that this Court has obtained from him.