Recollections of A Sishya

   (By N.K. Subramanian, Advocate, High Court of Kerala)

The huge banyan tree stood before the Temple of Justice has succumbed to the Time. After six and half decades as a lawyer Senior Advocate Sri.V.R.Veniatakrishnan has left this world.

He grew along with the Country’s growth in Judiciary in the post-independent era. He lived through the best period of Judicial History. I feel fortunate to be a junior to him, who has marched with the progress of Judiciary and thus I could inherit the wealth of his rich experience in the profession.

He was friendly with every member of the Bar of all ages and greeted all with a smiling face. As one of the senior most lawyers, Hon’ble Chief Justice Smt.Manjula Chellur aptly called him as ‘Bishma Pithaamaha’ of the Bar.

He was a ‘cosmopolitan’ lawyer rather a ‘cosmopolitan’ personality in every sense. He was never selective in mingling with people as he clubbed with everybody irrespective of age and avocation and he was respected by every member of the fraternity.

His timely advices with a paternal affection always drove me in the right path not only in the profession but also in all departments of life. I always felt as if sitting under a huge banyan tree. His knowledge and erudition in oriental philosophy, in the Holy Scriptures and in the Vedas nurtured my limited knowledge I had in my association with Sri Ramakrishna Movement, in my childhood. It helped me to withstand the onslaught of temporal miseries. One of my lawyer friends used to tell me, enviously, that my senior is protecting me like a mother-bird would do to her chicks, under her wings.

He depicted himself thus: *“In the courts, I had a reputation of being bold, to the extent that it could have affected my career as a lawyer. But to me it was natural to be daring because of the training that I was fortunate to have and the enviable company I could keep. You could be bold in life and break a lot of pots. But my thought went in the direction of being myself and holding my head straight without having to pay a price; to stand for the legitimate and just causes without turning myself into a martyr; that was my idea". He did just that. And he left a legacy for lawyers to cherish and to be emulated. 

His journey to the Heavenly Abode is after completing the ‘full course’ of life or the journey of soul dwelled in him has left in search of another body, as said by Lord Krishna in the Holy Gita thus:

“Dehinosmin yatha dehe kaumaram youvanam jara

Thatha dehantharprapthi: dheerasthathra na muhyathi"

Just as the dweller in this body passes through childhood, youth and old age, so at death he merely passes into another kind of body. The wise are not deluded by that.

“Vaasamsi jeernani yatha vihaya navaani gruhnaathi naroparaani 

Thatha shareerani vihaya jeernani anyaani samyaathi navaani dehi”

Worn out garments are shed by the body:

Worn out bodies are shed by the dweller within the body:

New bodies are donned

By the dweller, like garments is, of course, after accomplishment.

                            (Translation by Swami Prabhavananda and Chirstopher Isherwood)

He was a great lawyer and pride of the Bar of the Kerala High Court. The chasm formed in the Judiciary by his death  will remain......

To me, the loss is irrecoverable. 

Human  Rights  Between  the  Dying  and  the  Living

(By  M.E. Aliyar, J. F. C. M.,   Ramankary)

Salmond in his work on Jurisprudence says that dead men have no rights. We have no doubt or objection to it, but we come across certain cases in certain hospitals where the patients who are on the verge of death and struggling to breath but who still have fitness of mind, and sense are not allowed to be visited by their dear and near ones at that time by the hospital authorities. We presume that a doctor worth that appellation will be aware of the signs of the approaching of death of the patient and it is only fair and proper that the relatives and friends of such a dying patient be allowed to visit him before the life of such a patient flies out. It may be noted that the relatives and friends of a dying patient desire and are anxious to be near him at the sinking stage. It is felt that medical men and hospital authorities should not forbid or prevent them from being near him where the very doctor attending the patient is helpless with all his arts as an alienist to prevent death. It is felt that preventing of such dear & near ones of the dying patient is blatant violation of human right concept as known to jurisprudence and civilized society. An English poet and dramatist William Shakespeare had sensibly written that a dying person desires that his dear & near must be near to him at that moment which is believed to enable the dying person to have a peaceful death. Coming to the importance of permitting the dear & near ones of the dying patient to be near him, it may be noted that the patient may be in a position to communicate by words or signs any kind of information to his relatives or dear friends regarding the disposition of property and other matters which he desires to convey. It may be pertinent to note in this connection that S.32, clause-1 of the Indian Evidence Act speaks about dying declaration and courts have held that such declaration can be made by spoken or written words and also by signs regarding the cause of death, circumstances and the transaction in which the declarant was injured. 

The law is that a Dying Declaration can be made to any person and it is valid and admissible in evidence. It also to note that a dying declaration under this S.32 is admissible in evidence when the matter in dispute relating to civil or criminal in which it should be clearly understood that a disclosure in a dying declaration when it is made before the death of the patient takes place. The law is to this effect that, if such person chances to live then such a statement is not dying declaration. From the practical point of view all of us know that when death takes place no communication can be made by the deceased by either sign or mouth. This would make us to understand the importance of permitting the dear and near ones of the dying patient to visit such a patient in hospital at that stage. The question arises where any hospital authorities or doctors have a legal right to prevent the dear and near ones of the dying patient to visit such patient. The simple and classic answer is that such hospital authority or doctor has no such right. So much so, the hospital authorities or doctors prevents such dear and near ones of the dying patient, such hospital authority or doctor violates human rights. 

It is suggested that such a hospital authority or doctor shall be made liable to pay damages to the dear and near ones if the patient dies in hospital without the dear and near being allowed to visit the patient. It is also noted that according to the authors of Forensic Medicine the subject also known as Medical Jurisprudence is basically concerned about the cause of death. The expression ‘Forensic Medicine’ means knowledge of medical science used for the purpose of law and nothing more. It is not a matter exclusively meant for police and medical men. It is a matter in which courts are concerned in rendering a judicial decision.

The fact remains that there is divergence of medical opinion as to the signs of approaching death and one cannot understand as to what is the sense in preventing the dear and near of the dying patient from visiting him at such a time. Regarding death John Milton an English poet in his famous book’ Paradise Lost’ mentioned, “ ‘If shape it might be called it had none distinguishable in member, joint or limb substance might be called that shadow seemed'. This statement by Milton is sufficiently significant in the context under consideration. In Medical Jurisprudence and Toxicology by Mr. H.W.V. Cox at page no. 92 we read ‘Death is not a fixed simple event. In fact a definition of death is very difficult to attain’. The World Medical Association in August 1968 stated about the determination of death ‘The determination will be based on clinical judgment supplemented if necessary by a number of diagnostic aids of which the ECG is currently used by most hospitals, however no single technological criterion is entirely satisfactory in the present state of medicine, nor can any one procedure be substituted for the overall judgment for the physician’. We are aware of the intensive care unit (ICU) in hospitals meant for special attention bestowed upon the patient and for which special amounts are charged by the hospital authorities. Death may enter even in ICU, but the painful situation is that the dear and near ones of such a patient are not allowed to visit him even in his dying stage in that room. This is done in the pretext that permitting such visitors to such a patient would interfere with the work of doctors attending such patients.

In Hindi there is a proverb with reference to issue-less person “ Uske peeche kon Royega” which simply means that when a issue-less man dies, there is nobody in the world to cry for him. Quite opposite of this notion takes place in certain hospitals where a dying person gasping the last and the very doctor is totally helpless to save the dying man, the life of the patient with its human right struggles between life and death and the dear and near ones are not permitted even to express sorrow and grief and this event makes a mockery of the proverb referred to above. May note that the hospital authorities I would say vernacular “Uske aage kon Royega”. In this circumstance, I am constrained to observe that it would be better to construct a separate unit called sinking unit or some other apt name very proximate to the Intensive Care Unit (ICU) for transferring the sinking patient to it so that the dear and near ones can see him without interfering with the clinical work of the medical men. 

In the same strain I would suggest that a duty doctor may be posted with necessary infrastructure to re-transfer the sinking patient to ICU, if there is any prospect of improvement by indication which a medical man can understand, even though the actual entering of death into the human body is not visible. Before parting with the matter in hand, it is suggested that no relatives want a Post-Mortem of the body of their near relatives. Last but not the least aspect is that, if a patient dies in ICU, and his body remains kept there and thereby delaying even the sight of body to the relatives till another life patient is admitted in ICU, the total charges levied and paid by the relatives of the dead patient mentioned above for the body being kept there shall be repaid to such relatives by the hospital authorities since ICU is not a mortuary.

Flouting and evading the law, the human right is cruelly denied to both the dying patient and his relations. This is a sad situation created by senseless authorities or doctors who have no such right known to law and hence should be liable to pay damages for the agony caused to the dear and near relatives in this context..

A Gentle Soul Remembered 

(By G. Shrikumar, Senior Advocate, High Court of Kerala)

A.P.Chandrasekaran, Senior Advocate, fondly known among friends as A.P.C., is no more.  Seldom do we come across such noble souls who mean no harm to any one by words or deeds.  

One among the last few members of a dwindling tribe of traditional Civil Lawyers, A.P.C. addressed death, the inevitable guest, in a style befitting his arguments in courts, brief and to the point.  

Following the legacy of late Kuttikrishna Menon, the former Advocate General of Madras, as his junior, he carved out a distinct space for himself among the veteran civil lawyers of the High Court of Kerala. When he welcomed me to his chambers as his first junior, little did I realise that it was the beginning of a long journey together.   In the long seventeen years of Senior-Junior relationship, he taught me, rather I imbibed from him many a fascinating aspect of life.  Our relationship grew beyond the world of law. He could discuss and deliberate on any topic under the sun from quantum physics to mystic poetry.   A man of wide reading and an ardent follower of the philosophy and teachings of Sri Aurobindo, he was a true spiritual being who had transcended human ego to a great extent.  He was always unruffled and maintained his poise and calm.  It was almost impossible to provoke or make him angry.  

As a lawyer, he always believed that a case is to be built on first principles and fundamentals of law.  To him, first principles are the foundation of a case and the precedents are only support structures.  According to him, if the case is strong on fundamentals, one can afford to dispense with the precedents. His arguments were always brief, matter of fact and lucid and presented in fine legal language and perfect diction.  His style of preparation of cases was unique.  He believed that every case should undergo a minimum period of incubation in the mind of the lawyer before it transforms into written pleadings.  The butterfly must undergo the silent confinement in the cocoon before it spreads its beautiful wings. Instant justice delivery system has its own pit falls.  

He always believed in the innate goodness of all human beings.  The so called wrong doers, according to him, are mostly victims of circumstances.  He accepted all situations and events in life as they presented and always considered it as part of a larger design and scheme of things which often remained beyond our comprehension and yet to unfold.  

Like a gentle breeze he glided past me

leaving the freshness of the morning dew

reflecting in all its splendour

the glory of the unknown, the un-explored 

May his soul continue its journey into higher spiritual planes until it merges with ultimate in eternal bliss and peace.

An Addendum to Mary v. Issac (2014 (1) KLT 923)

(By K. Radhakrishnan Nair, Advocate, Vanchiyoor, Thiruvananthapuram)

The question that arose in this case was whether an order of temporary injunction restraining alienation could be communicated by the Civil Courts to the Sub Registrars concerned in exercise of inherent jurisdiction. While issuing a judgment in the affirmative the Hon’ble High Court referred to the decision of the Hon’ble Supreme Court in K.K.Velusamy v. N.Palanisamy (2011 (2) KLT SN 19 (C.No.27) = (2011) 11 SCC 275). In this decision the Apex Court held in paragraph 12(a) that “Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts”. It was further held in paragraph 12(e) that “while exercising inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case”.

From this it could be made clear that the power under S.151 can and need be exercised only if there is no legislative guidance. In Mary v. Issac, S.89 of the Registration Act, 1908 was not brought to the notice of the Hon’ble High Court. Section 89 of the Registration Act, 1908 was amended vide Kerala Act 7 of 1968, which came into effect on 22.2.1968, inserting sub-section (5). This sub section reads as follows:-

“(5) Every court passing -

(a) any decree or order creating, declaring, transferring, limiting or extinguishing any right, title and interest to or in immovable property in favour of or of any person, or 

(b) an order for attachment of immovable property or for the release of any immovable property from attachment,

shall send a copy of such decree or order together with a memorandum describing the property, as far as may be practicable, in the manner required by Section 21, to the registering officer within the local limits of whose jurisdiction the whole or any part of the immovable property comprised in such decree or order is situate, and such officer shall file the copy of memorandum in his Book No. 1".

This is a substantive provision which casts certain duties on any court to send a copy of decree/order creating, declaring, transferring, limiting, extinguishing any right, title and interest to or in immovable property in favour of or of any person, or an order for attachment of immovable property or for the release of any immovable property over attachment. In relation to an order of injunction the following portions of S.89(5) are relevant.

(5) Every court passing -

(a) any ............order............limiting any right, title and interest to or..........in immovable property...........of any person.

It is beyond doubt that that an order of injunction against alienating or executing documents, obviously, would put a cap on the right of a person to transfer his absolute right or possession. The Hon’ble Supreme Court in Surjit Singh & others v. Harbans Singh & others ((1995) 6 SCC 50) held that alienation/assignment made in defiance of the court’s order irrespective of whether it was of the property per se or of the decree pertaining to the property shall be treated as non est. So, it cannot be contended by any stretch of imagination that an order of injunction would not come under the purview of S.89 of the Registration Act as amended by Kerala Act 7 of 1968.

The object of this provision is only to see that an order of injunction which affects immovable property should not go unnoticed when a stranger enters into a transaction in relation to a property with a person who claims right, title or interest over a property. It is intended to restrain fraudulent transfers ignoring court orders. When the order is forwarded to the Registering Officer, he shall file the copy of memorandum in his Book No.1. This book is one of the Register books to be kept in the several offices constituted under the Registration Act. S.51 of the Registration Act requires certain books to be kept in the several offices established under the provisions of the Registration Act. Among the registers the most important one is Book No.1, “Register of Non-testamentary documents relating to immovable property”. All registration offices shall keep Book No.1 without fail. As per sub-section (2) of S.51 of the Registration Act, 1908 inserting vide Kerala Act 7 of 1968 true copies of all documents and all memoranda registered under Ss.17, 18 & 19 which relate to immovable property and are not wills, shall be filed in Book No.1. Under S.89 the Court shall send a copy of the order together with a memorandum describing the property to the registering officer. As required under S.51 this memorandum along with copy of the order shall be filed in Book No.1.

The Registering Officer shall furnish on request a certificate of encumbrance in respect of any immovable property after making a search of encumbrances, belonging to a single individual or family or a list of documents executed by or in favour of a single individual or family. R.169 of the Kerala Registration Rules, 1958 provides that in an encumbrance certificate the description of properties affected by the documents shall be given. An encumbrance certificate issued under Rules 168 & 169 of the Kerala Registration Rules is in the form which is given in Appendix VII of the said Rules. In the form it is stated that a search has been made in Book 1 before issuing an encumbrance certificate. In the certificate the description of property, date of execution of the documents, nature and value of the document, names of parties, reference to document etc. are given. So the injunction order of the court that is communicated to the Registering Officer and entered in Book No.1 would also find a place in the encumbrance certificate; which would help anyone who proposes to enter into any transaction in relation to the property with a person, against whom the court issued an order, to know that the property is the subject matter of a suit or that an application is pending for an order of injunction and that he cannot avoid ascertaining the right, title and interest of that person against whom an order is passed restraining alienation or assignment of the property. In view of the substantive provision in the Registration Act, the inherent power of the court cannot and need not be exercised by the court to communicate an injunction order to the Sub-registry.

Essence  of  Judgments  Involving  Co-operatives  Profounded
By  the  Kerala  High  Court  In  2013

(By R. Muralidharan  (Deputy Registrar  (Planning  &  Legal),

Co-operative  Department,  Puducherry) 

The Kerala High Court continues its onward march to declare judgments of importance, especially in the field of co-operation. During the year 2013 the Kerala Co-operative Societies Act underwent amendments in conformity with the Constitution 97th Amendment Act. The judgments rendered by the Kerala High Court during 2013 are indexed, chapter-wise.

Management

The first proviso to S.28(1) shows that the persons who have signed the applications to register the society are entitled to appoint a committee to conduct the affairs of the society 'for a period of three months from the date of registration or such further period as the Registrar may consider necessary'. It is not an immutable rule that the term of the committee should expire with the three months' period for which the committee has been appointed by the persons who have registered the society. It follows that the term could be extended by the Registrar if necessary. In the present case no order was passed by the Registrar extending the term of the managing committee. The committee continued in office without any complaint from anyone. The decisions to induct new members were also taken during the said period. The stand adopted by the third respondent that there is no justification for refusing to accept the said decision of the managing committee at this length of time cannot be found fault with, as held in Muhammed Basheer v. Pravasi Co-operative Society (2013 (4) KLT 398).

Disqualification  of  members  of  the  committee

In Sukumaran Nair v. Returning Officer (2013 (3) KLT 547) it was ruled that non-payment of advance amount taken by President or not accounting for same is not a disqualification. 

A member of the society unless he is disqualified as mentioned in various other provisions including R.44(c)(i), is eligible to be elected or appointed as a member of the committee. Apparently this is not a loan taken by the petitioner. The amount repayable is not evident from any of the loan documents as well. The material available would show that the amount was disbursed as 'President advance'. Therefore it cannot be disputed that the first part of R.44(c)(i) will not be attracted as far as the petitioner is concerned, since the amount received was treated as an advance by the President of the society. Further there is no decree against him, even there is no material to show that a demand had been made by the society against the petitioner to repay the balance amount which he had taken as advance after fixing a time limit. In the absence of any such situation, merely for the reason that certain amount received by the petitioner as advance was not repaid by him will not make him a person in default or defaulter as defined under R.2(d) or 2(e) of the Rules. To reach this conclusion, the Court relied on a judgment of the Division Bench in Rajagopalan v. Baby Alex (1994 (2) KLT 974).

Election

The issue that arises for consideration in Idukki District Police Co-operative Society Ltd. v. Electoral Officer (2013 (1) KLT 788) was whether the Electoral Officer has the power to remove the names of ineligible persons from the preliminary voters list, while considering the objections to the said list. The Court observed that the duty of the Electoral Officer extends not only to publication of a preliminary voters list, but also to finalizing the said list after considering the objections received by him to the said list. Acceptance of valid objections would necessitate alteration of the preliminary voters list either by adding the names of eligible members who have been left out or by removing the names of ineligible members who have been included. Unless the above powers are conceded to the Electoral Officer, it would not be possible for the said officer to discharge his responsibility to publish a list of members qualified to vote at the election. For the discharge of the said responsibility, it is certainly open to the said officer to take recourse to all reasonable means. The Electoral Officer need not make a roving enquiry. Removal of name of a person from voters list does not entail removal of persons from membership of society. He can be removed from membership only in compliance with the provisions of R.16(3).

The short question to be considered in Mohanachandran Nair v. State Co-operative Election Commission (2013 (3) KLT 506) is whether the State Co-operative Election Commission has the power to adjourn election. A reference to the judgment in Rajendran v. State Co-operative Election Commission (2004 (1) KLT 1026) virtually indicates the absolute power vested with the Election Commission in terms of S.28B. Going by R.35A (9) and the judgment in Rajendran (supra) the power of the Election Commission cannot be disputed. The power to appoint an electoral officer can also be withdrawn if it is found that the election proceedings cannot be conducted in a fair manner. Reference is made by the Election Commission regarding the preparation or manner in which form 6B register is maintained and discrepancies in the identity cards and photographs affixed etc. Under normal circumstances these are all matters to be considered by the electoral officer while preparing the final voters list. But if the discrepancy is such that it goes to the extent of affecting a fair election definitely the Election Commission can interfere in the matter.

The question that arises for consideration in Bijukumar v. Co-operative Election  Commission  (2013 (3) KLT 963) is whether in an election to constitute the managing committee, the polling should be conducted on ward basis. S.28(1) makes it clear that it is the general body of the society that 'shall' constitute a committee, for being entrusted with the management of the affairs of the society. The amendment that has been introduced only provides for an election on ward basis. To introduce a differentiation on the basis of ward would amount to bifurcation of the general body itself, which is not contemplated by either the Act or the Rules. R.35 makes it clear that the election should be conducted from among the members of the general body, voting as a unit. The said provision also shows that only a single voters list is to be prepared. If the voting is to be conducted separately for each ward, preparation of separate voters list on ward basis would also have to be undertaken. Such a procedure is not contemplated by the Rules. There is no justification for the contention of the petitioners that the voting has to be conducted on ward basis.

The wisdom to fix the date for the election is of the committee. It is a democratic process. Unless it is shown to be in violation of any prescription of law, the same has to be recognized. There is no specific power conferred on the State Co-operative Election Commission or any other authority under the Act on whose permission or order would depend the date of conduct of the election. No such power is given under R.35A. The State Co-operative Election Commission is duty bound to appoint an electoral officer to give effect to the decision of the committee fixing the date, time and place for the conduct of election to the new committee. The explanation to Rs.35 specifies that the expression 'Registrar' in the case of primary societies, the jurisdiction of which does not exceed one circle, refers to the Assistant Registrar of the circle concerned. Therefore, the Assistant Registrar of the concerned circle is the authority who has to forward the resolution to the Election Commission as per the amended sub-rule (1) of R.35A. The above being the position, it was unnecessary for the third respondent to have forwarded the resolution to the second respondent, as done in the present case. This ruling may be found in D. Suresh Kumar v. Kerala State Co-operative Election Commission and others (2013 (2) KLT Suppl. 33 (Ker.) = AIR 2013 Ker.132).

Disputes

In Thiruvanathapuram Regiona1 Co-operative Milk Producers Union Ltd. v. Jayakumar (2013 (2) KLT SN 26 (C. No.30)) the plaintiff is not a person who is a member of the society but at the same time he had business transactions with the society. The dispute between the plaintiff and the society arose pertaining to that business transaction. Hence it is to be held that S. 69(1)(f) would certainly be attracted in this case. The society was constituted for collection and supply of milk. Since that was the concern of the society it has to be held that whatever is done pertaining to the collection and supply of milk would normally be its business and so the dispute as to whether the security amount was to be returned or any amount was to be deducted towards the alleged loss sustained on account of the short supply of milk would certainly be a dispute coming within the ambit of S. 2(i) and S. 69(l)(f) of the Act and as such the bar under S. 100 would certainly apply.

The bank cannot file an A.R.C. for recovery of the entire loan amount, unless the repayment of loan has become overdue, as profounded by the Division Bench in Raju M. Thomas v. Urban Co-operative Bank Ltd. (2013 (3) KLT 417). If only the interest was overdue, the bank could have only sought to recover the interest alone by resorting to the appropriate proceedings. Once the bank has decided to terminate the loan agreement and recall the loan that essentially means that the entire loan amount has become overdue. There is no logic in saying that the loan amount has not become overdue as on 31.12.2007 after filing an A.R.C. to recover the entire loan amount on 28.3.2007. Simply because the bank has chosen to give the loan in the form of a cash credit account, the loan does not lose the character of an agricultural loan. The reasoning given by the learned Single Judge that once an award has been passed, the loan loses the character of agricultural loan is not impressive. The award is only for recovery of the loan amount. The award continues to be for recovery of an agricultural loan and the loan remains an agricultural loan throughout notwithstanding the passing of the award. The denial of the benefit of the scheme to the appellant was held unjustified and the Writ Appeal was allowed.

Supersession  of  committee

The Division Bench in State of Kerala v. Urukunnu Service Co-operative Bank Ltd.(2013 (2) KLT 74)  has ruled that for invoking S. 32(1)(a) it is not sufficient to merely hold that the managing committee had committed a default or is negligent in the performance of the duties imposed on it by its Act or the Rules or bye-laws, but such default should be shown to be persistent and must be prejudicial to the interest of the society as well. In addition to the finding that on account of the non-convening of the annual general body meeting and non-passing of the budget for the year, there must be a further finding by the Joint Registrar that the non-convening of the general body meeting was not only persistent but also that such non-convening was with a culpable mind. It is mandatory for the Joint Registrar to state in his order the opinion of the financing bank on the proposal to supersede the first respondent under S.32. Further no valid explanation was forthcoming as to why it was not reasonably practicable to consult the Circle Co-operative Union. For dispensing with the same, there must be very cogent and acceptable reasons. Useful reference was drawn from the decisions in Vallappuzha Service Co-operative Bank Ltd. v. Joint Registrar (2009 (3) KLT 838) and Sahadevan v. Padmanabhan  (2004 (1) KLT 192).

If there is a statutory violation, the court will be justified in interfering with the matter in a Writ Petition despite of an alternative remedy. When a statute prescribes a method of consultation before proceedings under S.32(1), it is all the more necessary that the consultation has to be made despite the fact that the officer is the same and it should be borne out from the impugned order, vide Siddhikul Akbar v. NirmaIa  (2013 (2) KLT SN 123 (C. No.155)).

Time and again, Courts have held that supersession of an elected managing committee/board is an exception and can be resorted to only in very exceptional circumstances and normally an elected body shall be allowed to complete the term, for which it is elected. It is also not a secret that in the co-operative scene in Kerala or even in India, there is excessive politicization, resulting in the political party in power trying to overthrow the political rivals in power in a co-operative society on flimsy reasons by invoking S. 32. Expressing anguish, the Division Bench in Rajeevan v. Sukumaran (2013 (3) KLT 253) held that it is mandatory on the part of the Joint Registrar to consult expert bodies like financing bank and circle co-operative union and for dispensing with the same, there must be very cogent and acceptable reasons and not just a single statement that an alarming situation is present. The consultation has been held to be mandatory and serves a very important and vital purpose in the context of the action to supersede an elected managing committee of a society. Therefore, when the dispensing with the opportunity to the committee to state its objections results in non-consultation with the financing bank and the circle co-operative union, that also is a reason to hold that dispensing with the opportunity to the committee to state its objections cannot be lightly resorted to. The words "it is not reasonably practicable to do so" qualifies the opportunity to the committee to state its objections and nothing else. It is settled law that an exception in a Section of enactment has to be construed strictly.

It is not necessary to complete the exercise under Ss. 63 to 66 to enable the Registrar to take action under S.32. Order of supersession could be passed when the committee members have resigned after issuance of show cause notice. A committee is superseded on the allegation that they are involved in all or any of the acts as stated in clauses (a) to (d) of S.32(l). Can such a proceeding be circumvented by resignation by the committee members or is it that the Joint Registrar could proceed with the enquiry and complete the proceedings? Answering the question, in Gireesh Kumar v. Joint Registrar of Co-operative Societies (2013 (3) KLT SN 101 (C.No.105) it was ruled that the order of supersession under S. 32(1) in addition to removal of the committee and appointing an administrator, has another consequence of disqualification of the committee members from contesting the election in view of S. 32(1). Therefore, though the committee members have a right to resign, if the resignation is after a notice commencement of proceedings under S.32(1), that is after issuing notice of enquiry, the proceedings will have to come to a logical end. Resignation from the committee after initiating the proceedings. The discretion is purely with the Registrar from taking action under S. 33(1), as well, as on account of enbloc resignation by the committee members.

Appeal

Anyone aggrieved by the decision of a court or authority from which an appeal is provided under S.82, to have a rehearing of the entire matters on the materials placed, has to prefer an appeal and challenge the order in such appeal. After the expiry of the time fixed for preferring an appeal if he prefers a revision, and does not choose to move for condonation of delay to prefer an appeal and entertain such appeal, in such revision he cannot canvas challenge which are available to him only in an appeal. This is the ruling in Selvarajan v. Mankara Service Co-operative Bank Ltd. (2013(2) KLT SN 62 (C. No.71)).

Employees  of  Co-operative  Societies

The question before the Division Bench in Thrissur District Co-operative Bank v. Kerala Public Service Commission  (2013 (1) KLT 261) is whether the experience of the 4th respondent as internal auditor is supervisory and sufficient to entitle him to participate in the selection process for Deputy General Manager. Affirming the decision of the single Judge it was held that the supervisory and managerial cadres are combined cadres in co-operative societies and that could be the reason why in the feeder category classification the society in which the 4th respondent served for long years has bracketed branch manager with internal auditor. As a matter of fact and in practice internal auditor does only supervisory work of checking the correctness of work done by the accountants, management and staff of finance department and allocation of funds and it is essentially the internal auditor who bring out irregularities, mistakes etc., in expenditure by the organisation. However the Division Bench felt that the rule needs a review because Deputy General Manager being a senior managerial position, eligibility for direct recruitment should be sufficient experience in higher level managerial cadre and not experience in supervisory cadre.

The short question to be considered in Mani v. Tirur Urban Bank Limited (2013 (2) KLT 609) is whether it is open for the Bank to insist for an equivalence certificate from the petitioner to indicate that the degree certificate which he had obtained through a distance education programme is equivalent to the qualification which is prescribed under R. 186(1) or not. R. 186(1) clearly indicates that the basic qualification for promotion to the post of Branch Manager is graduation from a recognized university. Tamil Nadu Open University is a recognized university and approved by the University Grants Commission. Under law, there is no distinction between the degree certificate obtained by way of distance education programme or by way of regular study. As long as the petitioner or any other person obtains a degree from a recognized university either by attending a regular course or by a distance education programme, it cannot be said that it is not a 'degree' of a recognized university. That being the situation, one cannot proceed on the basis that merely because the distance education programmes have commenced subsequent to the rule coming into force, such degrees are ruled out for being considered for the purpose of considering the qualification of the petitioner.

R.188 does not provide for prior approval in all cases of re-classification of societies. That applies only to cases where a particular society, because of the special circumstances peculiar to the society, wants to change the pattern of staff strength including the scale of pay, from what has been stipulated in appendix III, as held by the Division Bench in Subair v. Anicadu Service Co-operative Bank Ltd. (2013 (2) KLT SN 54 (C. No.64)). 

The proviso to S. 80(5) indicates that in any society having more than 10, but less than 33 employees, reservation shall be made to at least one post. The contention of the respondent that the employer can wait till the 33rd post defeats the very purpose intended by the Legislature. Such a contingency may never arise and the language of the proviso is not to be lightly dealt with so as to absolve employers from their liability to provide reservation to the disabled. To comply with the reservation of 3%, any society who employs more than 10 persons has to make such reservation in the 11th or 12th post, if the said post is an identified post. In any event the 1st and 2nd identified post to which appointment is made in excess of 10 posts, should be reserved for the disabled. The fact whether the 10 posts already existing are identified or not is immaterial. This ruling is found in Jayaprakash v. Joint Registrar of Co-operative Societies (2013 (4) KLT 788).

Miscellaneous

In Federal House Construction Co-operative Society Ltd., v. State of Kerala (2013 (3) KLT 643) it was held that payment of stamp duty is exempted for a sale deed executed by a co-operative society in favour of its member. It is not in dispute that as far as the present document is concerned, it is sale deed executed by the society in favour of a member conveying certain extent of undivided share of land in his favour. Hence the exemption notification squarely applies. The stipulations in the Kerala Stamp Act do not have any relevance to the exemption granted by the Government under the Co-operative Societies Act. When the exemption notification is clear, irrespective of the fact as to who is liable to pay stamp duty, the remission had been given in respect of instruments executed by co-operative societies. Since the sale deed is also considered to be an instrument and it is executed by the co-operative society, exemption notification squarely applies. After repealing the previous enactments, the rules, orders or notifications issued under repealed Act has been saved and it is deemed to have been instituted under the Act. Going by S.110(2)(i) there cannot be any dispute that the notification issued is deemed to have been issued under the Act.

The Division Bench in Paravur S.N.V. Regional Co-operative Bank Ltd. v. Kerala Co-operative Ombudsman (2013 (4) KLT 520) ruled that the rate of interest on deposits as fixed by the Registrar in clause 7(e) of the Co-operative Ombudsman Scheme, 2010 is the rate of interest prevailing at the time when the scheme was proclaimed and a contract was entered into between the appellant and the second respondent regarding the deposit and the rate of interest thereof. Once the contract is concluded, then the deposit has been accepted only at the rate of interest fixed by the Registrar. Thereafter, the appellant cannot unilaterally change the terms of the contract. If the appellant does so, the complaint would squarely come within clause 7(c) of the Scheme. Apart from that, even the question as to whether the rate of interest as fixed by the Registrar has been paid or not itself is a complaint, which can be considered by the Ombudsman. As such, the Ombudsman has the power to consider the complaint of the second respondent under the Kerala Co-operative Ombudsman Scheme, 2010.