RAGHAVAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The short question that arises for consideration in this writ petition is whether a petition seeking compensation from a co- operative society for the death of a member of that co-operative society due to an alleged act of negligence on the part of that cooperative society and its office bearers is maintainable before the Arbitrator under section 69 of the Kerala Co-operative Societies Act, 1969, hereinafter referred to as the Act for short. The petitioner is a member of the third respondent bank, a co-operative society registered under the Kerala Co-operative Societies Act, 1969, hereinafter referred to as the Act for short. The house, where the petitioner is residing, is situate on the northern side of a building belonging to the third respondent bank, which was used to store fertilizer and other goods. A compound wall separated the two properties. A portion of the said compound wall collapsed on 3.9.2008 resulting in the death of the petitioner's wife, who was also a member of the third respondent bank. Crime No. 292 of 2008 of Nedumkandom Police Station was thereupon registered. Long thereafter, the petitioner filed Ext.P4 petition under section 69 of the Act, before the second respondent herein seeking payment of the sum of Rs. 2,00,000/- as compensation from the third respondent bank. In that petition it was inter alia alleged that the death of the petitioner's wife was caused solely due to the negligent construction of the compound wall by the society, which was joined as the first respondent. The petitioner also alleged that respondents 2 and 3 therein, who are the President and Secretary respectively of the society, were not properly monitoring the construction work and therefore they are jointly and severally liable to compensate the petitioner. By Ext.P5 letter dated 7.6.2010 the second respondent informed the petitioner's counsel that the said petition was rejected as not maintainable on the ground that it does not arise out of a dispute as defined in the Act. It is stated that aggrieved by Ext.P5 the petitioner filed an appeal before the Kerala Co-operative Tribunal on 31.3.2011, but the Kerala Co-operative Tribunal declined to receive the same and returned it stating that no appeal or revision will lie from a non-speaking order. It is on these averments that the instant writ petition has been filed challenging Ext.P5 and seeking a direction to the Joint Registrar of Co-operative Societies, the second respondent in the writ petition, to entertain the arbitration case and to dispose it of on the merits. It is contended that before the petition filed under section 69 of the Act was rejected, the petitioner was not put on notice or heard, that the rejection is by a non-speaking order and that the Arbitrator is competent to entertain the dispute raised by the petitioner. Reliance is placed on the decision of a learned single Judge of this Court in Sekharan v. State of Kerala and others,1976 KerLT 137 to contend that a claim for money by a member of a society against the society is a dispute as defined in the Act, irrespective of whether it relates to the business of the society or not.

(2.) I heard Sri. Naveen Thomas, learned counsel appearing for the petitioner and Smt. Anu Sivaraman, learned Special Government Pleader appearing for respondents 1 and 2.1 have also gone through the pleadings and the materials on record. In Sekharan v. State of Kerala and others the question considered was whether a claim for damages by a society against the contractor entrusted with the construction of a building for the society, the object of which included maintenance and letting out of godowns for storage of agricultural produce of its members is a dispute touching the business of the society and can be referred to the Registrar for decision under section 69(1)(f) of the Act. After a survey of the statutory provisions and the case law on the point, the learned Judge held as follows:-

(3.) The learned counsel for the petitioner contended, relying on the aforesaid decision, that a claim in respect of any sum payable to or by a society will also be a dispute as defined in the Act irrespective of whether it touches the business of the society or not and therefore, the claim made by the petitioner in Ext.P4 petition is maintainable. From a reading of the aforesaid decision it is evident that the business of the society, which was the plaintiff in the arbitration case before the Arbitrator, was to construct buildings and to let them out to its members for use as godowns to store manure and agricultural produce. That apart, the claim was made against a person with whom the society had a business transaction and was referable to section 69(1)(f) of the Act. Therefore, the dispute in that case was one touching the business of the society.