THOMMEN ITTICHERIYANTHU Vs. STATE OF KERALA

JUDGEMENT

(1.) The writ petitioner in O. P. No. 70 of 1978 has brought this appeal against the judgment of our learned brother Namboodiripad, J. dismissing that writ petition and declining to interfere with the order Ext. P4 passed by the State Government which was under challenge in the original petition. By the impugned order Ext. P4 the Government set aside ,the order Ext. P1 passed by the Deputy Registrar of Cooperative Societies, Kottayam declaring that respondents Nos. 4 to 6 herein had ceased to be members of the committee on the ground that they had become disqualified to continue to hold the office of membership of the Board of Directors of the said cooperative society. The learned single Judge found that although the reason stated by the Government in the impugned order Ext. P4 setting aside the proceedings of the Deputy Registrar evidenced by Ext. P1 were not wholly sound, the conclusion reached by the Government that the order of the Deputy Registrar could not be allowed to stand was right in as much as there was no material produced before the Deputy Registrar to substantiate the contention urged by the writ petitioner, who had figured as the applicant before the Deputy Registrar, that respondents Nos. 4 to 6 had incurred a disqualification under R.44 of the Kerala Cooperative Societies Rules, 1969. We are in complete agreement with the view taken by the learned single Judge. Even according to the averments contained in the original petition and the facts stated in Ext. P1 none amongst respondents Nos. 4 to 6 owned any amounts to the 3rd respondent Cooperative Society or to any other society registered under the Act as on the date on which the proceedings for disqualifying them are initiated. Action under R.44(1)(c) would be justified only if the member concerned "is in default" to the society or to any other society in respect or a loan or loans taken by him or loan in which be has stood surety, for such period, as is prescribed in the bye laws or in any case for a period exceeding three months or "is a defaulter to the society or to any other society". In employing the present tense by using the word 'is', the rule making authority has clearly indicated its intention that the disqualification will be attracted only if at the time when the proceedings under the rule are initiated the person actually occupies the character of a defaulter. The mere fact that at some time in the past a member might have been in default to the society or to any other society in respect of any loan etc. will not afford a valid ground for taking action under R.44 unless it is further shown that the state of such default actually continued to exist as on the date when the proceedings under the rule are initiated. In this case, as pointed out by the learned single Judge, no materials were placed either before the Deputy Registrar or even before this court to show that the respondents, who were admittedly only sureties, were concurrently liable for payment of the instalments along with their principal debtors and that their liability did not arise only on intimation being given to them by the society about the commission of default by the principal debtors. There was, therefore, nothing in the record to make out that the respondents bad been in default to the society in respect of the instalments due under the kuri bonds in question. We, therefore, agree, with respect, with the view taken by the learned single Judge that the order Ext. P1 passed by the Deputy Registrar could not be sustained in law.

(2.) The judgment under appeal is accordingly confirmed and this writ appeal is dismissed with costs.