Koliyacode Consumer Co-Operative Society Ltd v. Joint Registrar Of Co-Operative Societies (General)
2021-11-03
C.S.SUDHA, P.B.SURESH KUMAR
body2021
DigiLaw.ai
JUDGMENT : P.B.Suresh Kumar, J. This writ appeal is directed against the judgment dated 21.10.2021 in W.P.(C)No.21100 of 2021. The petitioners in the writ petition are the appellants. Parties and documents are referred to in this judgment for convenience, as they appear in the writ petition. 2. The first petitioner is a Co-operative Society (the Society) registered under the Kerala Co-operative Societies Act, 1969 (the Act) and the second petitioner is the President of the first petitioner Society. In terms of Ext.P1 order, respondent, the Joint Registrar of the Co-operative Societies exercising the powers of the Registrar under the Act over the area where the Society is located, in exercise of the power under Section 65(1) of the Act, ordered an inquiry into the working of the Society. Ext.P1 order was issued based on Ext.P2 report of inspection submitted by the officer authorised to supervise the working of the Society in terms of Section 66(1) of the Act. Ext.P1 order was under challenge in the writ petition. The grounds of challenge were twofold, viz, (i) that the Registrar has not formed a subjective satisfaction regarding the necessity to order an inquiry which is a mandatory precondition to exercise the power under Section 65(1) of the Act in the matter of issuing Ext.P1 order and (ii) that Ext.P2 report, on the basis of which Ext.P1 order was issued, is illegal in as much as the inspection which culminated in Ext.P2 report was one conducted without compliance of the requirements in Rule 66(2) of the Kerala Co-operative Societies Rules, 1969 (the Rules) which mandates that a copy of the order of inspection shall be issued by the Registrar to the President or the Secretary of the Society, as the case may be, by registered post with acknowledgement due. The learned Single Judge rejected the grounds aforesaid holding that Ext.P1 order was issued after forming a subjective satisfaction as mandated under Section 65(1) of the Act and that Rule 66(2) of the Rules does not apply to Ext.P2 in so far as it was a report on an inspection conducted under sub-section (11) of Section 66 of the Act. The petitioners are aggrieved by the decision of the learned Single Judge and hence this appeal. 3. Heard the learned counsel for the petitioners as also the learned Government Pleader. 4.
The petitioners are aggrieved by the decision of the learned Single Judge and hence this appeal. 3. Heard the learned counsel for the petitioners as also the learned Government Pleader. 4. The ground of the petitioners that the Registrar has not formed a subjective satisfaction regarding the necessity to order an inquiry into the working of the Society has been repelled by the learned Single Judge holding that Ext.P1 order has been passed after evaluating the materials disclosed in Ext.P2 report and thus forming a subjective satisfaction mandated in terms of Section 65(1) of the Act. A reading of Ext.P1 order would show that it is after evaluating the various irregularities reported in Ext.P2 report that the Registrar has ordered the inquiry into the working of the society under Section 65(1) and the same cannot be said to be an order issued without the necessary subjective satisfaction as to the necessity to order such an inquiry. There is, therefore, no infirmity in the finding rendered by the learned Single Judge on this point. 5. Now, we shall deal with the ground of the petitioners that Ext.P2 report is bad in law in as much as the mandatory pre-condition to be satisfied for conducting an inspection in a society under Section 66 of the Act as provided for under Rule 66(2) of the Rules has not been complied with in the matter of conducting the inspection culminated in Ext.P2 report. In order to deal with the ground aforesaid, it is necessary to refer to Section 66 of the Act as also Rule 66 of the Rules. The relevant part of Section 66 of the Act reads thus: 66. Supervision and Inspection.-(1) The Registrar shall supervise or cause to be supervised by a person authorized by him by general or special order in writing in this behalf, the working of every society as frequently as he may consider necessary. The supervision under this sub-section may include an inspection of the books of the society.
Supervision and Inspection.-(1) The Registrar shall supervise or cause to be supervised by a person authorized by him by general or special order in writing in this behalf, the working of every society as frequently as he may consider necessary. The supervision under this sub-section may include an inspection of the books of the society. (2) The Registrar may, on his own motion, or on the application of a creditor of a society, inspect or direct any person authorized by him by order in writing in this behalf to inspect the books of the society: Provided that no such inspection shall be made on the application of a creditor unless the applicant-- (a) Satisfies the Registrar that the debt is a sum then due and that he has demanded payment thereof and has not received satisfaction within a reasonable time and (b) deposits with the Registrar such sum as security for the costs of the proposed inspection as the Registrar may require. (3) Where the inspection under sub-section (2) is made on the application of the creditor, the Registrar shall communicate the result of such inspection to such creditor. (4) The Registrar or any person authorized by him under subsection (1) or sub-section (2) shall at all reasonable time have free access to and have power to inspect the books, records, accounts, documents, securities, cash balance and other properties, belonging to the society and may summon any person in possession of or responsible for the custody of such books, records, accounts, documents, securities, cash balance and other properties, to produce the same for inspection at any place at the Head Quarters of the society or any branch thereof or where there is no working office for the society, at the office of the Registrar or at the office of any of his subordinate officers. x x x x x x x x (11) Notwithstanding anything contained in sub section (1) and (2) above, the Registrar or his subordinate officers authorized by him under sub section (1) shall have power to hold an enquiry with necessary records of a society, on any petition received, and to inspect the affairs of a society periodically, in such cases, the inspecting officers shall have same powers as specified in sub section (4).
Explanation I-The “affairs of a society” for the purpose of this sub section includes, among other things, matters relating to administration, management and the business of a society. Explanation II-The duty of the officers and chief executive of a society and the nature of offences and penalties mentioned in sub section (4A) shall be applicable to this sub section also. Rule 66 of the Rules reads thus: 66. Procedure for the conduct of inquiry and inspection:-(1)(i) An order, authorising inquiry under Section 65 or inspection under Section 66 shall among other things, contain the following: (a) the name of the society whose affairs are to be inquired into or whose books of accounts are to be inspected: (b) the name of the person authorised to conduct the inquiry or inspection; (c) in specific point or points on which the inquiry or inspection is to be made, the period within which the inquiry or inspection is to be completed and report submitted to the Registrar; (d) costs of inquiry or inspection; (e) any other matter relating or pertaining to the inquiry or inspection. (2) A copy of every order authorising inquiry under Section 65 or inspection under Section 66 shall be issued to the President or the Secretary of the Society concerned by registered post with acknowledgment due. A copy of the order shall also be made available to the Central Society or societies, to which the society in respect of which the order is issued, is affiliated; As explicit from the extracted provisions, sub-section (1) of Section 66 of the Act empowers and authorises the Registrar to supervise or cause to be supervised by a person authorised by him by general or special order in writing in this behalf, the working of every Society as frequently as he may consider necessary. Similarly, sub-section (2) of Section 66 empowers and authorises the Registrar to inspect on his own motion or on an application by the creditor of the Society or to direct any person authorised by him by order in writing in this behalf to inspect the books of the Society.
Similarly, sub-section (2) of Section 66 empowers and authorises the Registrar to inspect on his own motion or on an application by the creditor of the Society or to direct any person authorised by him by order in writing in this behalf to inspect the books of the Society. Likewise, sub-section (11) of Section 66 provides that notwithstanding anything contained in sub-sections (1) and (2), the Registrar or his subordinates authorised by him under sub-section (1) shall have power to hold an inquiry with necessary records of a Society, on any petition received, and to inspect the affairs of a Society periodically. 6. The petitioners do not dispute the fact that the inspection conducted in the Society which culminated in Ext.P2 report is an inspection in terms of sub-section (11) of Section 66 of the Act. But, they would contend that even for such an inspection, the requirements of Rule 66(2) of the Rules shall be complied with. As noted, it is on the ground that the inspection which culminated in Ext.P2 report was not preceded by an order authorising the inspection and such inspection was not conducted after serving the said order either on the President or the Secretary of the Society, that the petitioners contend that Ext.P2 order is bad in law and that therefore, the same shall not be the basis for an order under Section 65(1) of the Act. The short question that falls for consideration therefore, is whether the requirements in terms of Rule 66(2) of the Rules need to be complied with for the inspection into the affairs of a Society in terms of sub-section (11) of Section 66 of the Act. 7. Going by the plain meaning of the words used in sub-section (11) of Section 66 of the Act, it can be seen that the same is a provision independent of sub-section (1) of Section 66 providing for supervision and sub-section (2) of Section 66 providing for inspection. In so far as sub-section (11) of Section 66 starts with a non-obstante clause, it can be seen that the said provision is intended to enable the Registrar and his subordinate officers to hold an enquiry with the necessary records of the Society, on any petition received, and to inspect the affairs of the Society periodically without following the procedure prescribed for inspection under subsection (2) of Section 66.
In other words, while sub-section (2) of Section 66 provides for inspection in respect of the books of a society by the Registrar on his own motion or on the application of a creditor by an order issued by the Registrar in writing in this behalf, sub-section (11) of Section 66 authorises and empowers the officers subordinate to the Registrar to carry on periodic inspections into the affairs of every society without any specific order of the Registrar for the said purpose. No doubt, the inspection in terms of sub-section (11) of Section 66 is also an inspection under Section 66, but in so far as no order is required to be passed by the Registrar for an inspection under sub-section (11) of Section 66, compliance of Rule 66(2) of the Rules is impossible in the case of such an inspection. If compliance of Rule 66(2) of the Rules is impossible for inspection in terms of sub-section (11) of Section 66 of the Act, the argument that Rule 66(2) of the Rules would apply to such inspection also can only be rejected. Needless to say, compliance of Rule 66(2) of the Rules is required only for an inspection in terms of sub-section (2) of Section 66 of the Act. We take this view also for the reason that Rule 66 of the Rules has been in force ever since the introduction of the Rules in the year 1969, whereas sub-section (11) of Section 66 of the Act was a provision introduced to the Act only with effect from 28.04.2010, in terms of Act 7 of 2010 and when sub-section (11) of Section 66 was introduced to the Act to provide for periodic inspection into the affairs of the Society, there was no corresponding amendment in the Rules. There is, therefore, no infirmities in Ext.P2 report as well. 8. The petitioners have no case that an order under Section 65(1) of the Act cannot be passed based on the report of an inspection conducted under sub-section (11) of Section 66. In other words, there is no illegality in Ext.P1 order. The writ appeal, in the circumstances, is devoid of merits and the same is accordingly, dismissed.