1. The petitioner describing himself as the President of the Board of Directors of the second respondent co-operative bank, challenges Ext. P9 by which the committee led by him has been superseded in exercise of authority under Section 32 of the Kerala Co-operative Societies Act, 1969, hereinafter referred to as the “Act”. The impugned decision is challenged in the writ petition as one passed in total violation of the statutory provisions and disregarding the observations contained in Ext. P5 judgment of the Division Bench in the writ appeal filed by the petitioner and others against Ext. P4 judgment in an earlier writ petition filed by them challenging the issuance of notice under section 32(1) which, ultimately, has now led to the impugned proceedings.

2. Ext. P9 is challenged on the specific ground that the said order has been issued by a person who was not the one who heard the petitioner and the other members of the superseded committee. It is contended that they were heard by Sri. Omanakuttan, Joint Registrar pursuant to Ext. P2 notice and the said officer forwarded the tentative opinion following the hearing, to the financing bank and the circle co-operative union in the course of consultation; however that, the impugned order has been issued by Sri. B. Sivan Pillai, who holds the additional charge of Joint Registrar and is in the position of a Deputy Registrar. It is stated that Sri. Sivan Pillai did not hear the petitioner.

3. It is contended by the petitioner that the supersession is a tentative action and would amount to disqualification of the members of the superseded committee from contesting in future elections. The impugned order is, therefore, characterized as stigmatic and hence, it is absolutely essential that the person, who heard the matter should have passed the order and the change in officer could have only led to a re-hearing and a decision denovo by a person who actually hears.

4. The further contention of the petitioner is that all the actions attributed to the committee for the purpose of the impugned supersession are attributable exclusively to Sri. M.V Sasikumaran Nair, the former President of the committee and the observation in Ext. P5 judgment that such objection should also be looked into, has been ignored while passing the impugned order.

5. The proceedings initiated under Section 32 is pursuant to a report under Section 65 and therefore, it is contended that the first respondent was duty bound to proceed under Rule 66(5) of the Kerala Co-operative Societies Rules, 1969, hereinafter, the “Rules” and no major defect having been noticed in the constitution, working or financial condition of the society, no action could have followed under Section 32 even in the light of Section 65(6) of the Act.

6. The process of consultation is also impeached. It is contended that though tentative opinion was forwarded to the financing bank and the circle co-operative union, the impugned order has been issued by stating that those establishments did not give their replies in response to the notice, which statement is alleged as wrong. It is contended that to the knowledge of the petitioner, the committee of the financing bank had met and resolved to inform disagreement in superseding the committee on the ground that the allegations against the committee do not justify the action of supersession.

7. A counter affidavit has been filed by the first respondent. It is submitted that following Ext. P1 judgment, Ext. P2 notice was issued to all the petitioners in WP(C). 18335/2008 stating that the earlier replies to the notice dated 24-4-2008 had not been satisfactory and the allegations in that notice have also to be answered. It is pointed out that a further opportunity of hearing was afforded on 4-9-2008 on which day all the parties were present. The petitioner, as the President of the committee, gave evidence and the same was recorded and signed by all the members present. The petitioner and six other members submitted Ext. P3 reply to Ext. P2 notice. The evidence tendered by the petitioner and recorded under the signature of the other member of the committee is placed on record as Ext. R1(a). The first respondent has stated that all objections contained in Exts. P3 and R1(a) were considered and the Joint Registrar arrived at the tentative conclusion that the committee has to be removed in the best interest of the society and the opinion of the financing bank and circle co-operative union were sought for as per Ext. R1(b). Both those institutions did not give any opinion on the matter within time, it is pleaded. It is further contended that the committee superseded by the impugned order, entered office in June, 2004 and Sri. Sasikumaran Nair was elected the President of the Committee. Later he was disqualified from the committee under Rule 44(1)(c) of the Rules. He continued until the dismissal of the writ petition challenging such disqualification. The first respondent points out that though the writ petitioner Sri Yesudasan was then elected the president of the committee, the fact remains that there was no material change in the composition of the committee in as much as, barring the disqualification of Sri. Sasikumaran Nair, the other members in the committee were continuing and there was no exclusion or inclusion of any other person into the committee, until the committee was superseded. In the counter affidavit the first respondent has reiterated the different allegations on the basis of which the impugned order has been issued.

8. As regards the contention that the officer, who heard the parties, did not pass the order and that the impugned order was issued by another officer, Sri. Sivan Pillai, it is stated in paragraph 9 of the counter affidavit of the first respondent that it was Sri. Omanakuttan, the Joint Registrar, who issued show cause notice and the said officer had heard the petitioner and the other members of the committee. Sri. Omanakuttan had issued Ext. P2 notice and had heard the petitioners in WP(C) 18335/2008. Such notice is issued not in his individual capacity but in his capacity as the Joint Registrar. The parties were heard on 4-9-2008 by the said officer at the time of personal hearing. Whatever was stated by the petitioner was taken down and the petitioner and the other members had signed such material. The said material is exhibited as Ext. R1(a). Thereafter, Sri. Omanakuttan was transferred from the post of Joint Registrar and he had handed oyer charge to Sri. Sivan Pillai, the then Deputy Registrar in terms of the Government Order, GO(Rt.) 611/2008 Co-op. Dated 3-10-2008. As Sri. Sivan Pillai was holding full additional charge of the Joint Registrar, there was ample power on him to act as the Joint Registrar. Accordingly, though personal hearing of the petitioner had the other members of the committee was by Sri. Omanakuttan, the entire materials were available in the file and Sri. Sivan Pillai, holding full additional charge of Joint Registrar, had issued the impugned order on the basis of the entire materials on record. It is contended that no ground are made out to set aside the impugned decision.

9. I have heard the learned counsel for the petitioner, the learned Government Pleader and also the learned counsel for the additional 4th respondent.

10. Under Section 3(1) of the Act, the Government may appoint a person to be the Registrar of Co-operative Societies for the State. Sub-section 2 of Section 3 provides that the Government may, by general or special order, confer. On any person all or any of the powers of the Registrar under the Act. The power to supersede a committee in terms of Section 32 of the Act is conferred on the Registrar. The provision is that if the Registrar, after an enquiry by himself or ********** or otherwise is satisfied that *************** he may, after giving the committee an opportunity to state its objections, if any, by order in writing, remove the committee and, *****************, to manage the affairs of the society for a period not exceeding six months, as may be specified in the order, which period may, at the discretion of the Registrar, be extended ************** Except incases where the Registrar is of the opinion that it is not reasonably practicable to do so, the Registrar shall consult the financing bank and the concerned co-operative union before passing an order of supersession. The power to pass an order is, thus, of the Registrar.

11. The jurisdiction to exercise the power under Section 32 depends on the satisfaction of the Registrar of one or the other of the conditions mentioned in Section 32(1) - See Jose Kuttivani v. Registrar of Co-operative Societies (AIR 1982 Ker. 120). The issuance of an order of supersession under Section 32 would depend upon the satisfaction of the Registrar that any among the different situations provided in Clauses (a) to (d) of sub-section 1 of Section 32 has occurred. That is a statutory order.

12. The effect of supersession, essentially, takes in deprivation of statutory rights, including the right to participate in the committee. The consequences of supersession in terms of Section 32 visit not only the committee as a whole but also individual members. That could result in disqualification from candidature in the election to the committee. That may lead to action for surcharge being initiated. Therefore, it goes without saying that the result of an order under Section 32 is rigorous.

13. When the statutory function involves adjudication and arrival at certain conclusions for the purpose of imposing a decision which results in consequences affecting statutory rights, they cannot be treated as merely executive functions but are essentially adjudicatory functions and resultantly, quasi-judicial functions. The proceeding under Section 32 involves the decision - making as to whether the committee has incurred the liability of being removed on account of any of the factors mentioned in the different clauses in sub-section 1 of Section 32. Without concluding on that jurisdictional issue in the affirmative, the power to supersede cannot be exercised. The result of consideration of the existence or otherwise of those factors may lead to supersession. In such event, the consequences would be, as already noticed, deprivation of statutory entitlements, including the right to participate in the democratic process of the election to the committee of that society, as a candidate. Therefore, the decision-making process resulting in an order under Section 32(1) of the Act is essentially a quasi-judicial function.

14. The concept of a quasi-judicial act implies that the act is not wholly judicial; it describes only a duty cast on the executive body or authority to conform to the norms of procedure in performing some acts in exercise of its executive power. When a duty to decide on a matter is imposed by a statute, he whose duty it is, to decide, must act judicially. The judicial function of decision making, entrusted to one officer cannot be delegated to another officer. The settled legal principle is that if one hears and another decides, then personal hearing becomes an empty formality and mere farce and hearing by a predecessor authority cannot possibly be of any advantage to a successor in deciding the case - See Subair Haji v. Secretary to Government (2007 (4) KLT SN 37 (C. No. 38). If one person hears and another decides, then personal hearing becomes an empty formality - See Local Government Board v. Arlidge (1915 AC 120) and G. Nageswara Rao v. A.P.S.R.T Corpn. (AIR 1959 SC 308). It is apposite in this context to refer to the classic work of Wade on Administrative Law (Eighth Edition) at page 484:

“The leading speech of Lord Reid in Ridge v. Baldwin is of the greatest significance because of its extensive review of the authorities, which inevitably exposed the fallacies into which the decisions of the 1950s had lapsed. He attacked the problem at its root by demonstrating how the term ‘judicial’ had been misinterpreted as requiring some superadded characteristic over and above the characteristic that the power affected some person's rights. The mere fact that the power affects rights or interests is what makes it ‘judicial’, and so subject to the procedures required by natural justice. In other words, a power which affects rights must be exercised ‘judicially’, i.e fairly, and the fact that the power is administrative does not make it any the less ‘judicial’ for this purpose”.

15. Reference is made by Wade in that contest to the following statement of Lord Hodson in Ridge v. Badwin ((1964) AC 40 at page 130).

……………the answer in a given case is not provided by the statement that the giver of the decision is acting in an executive or administrative capacity as if that was the antithesis of a judicial capacity. The case seem to me to show that persons acting in a capacity which is not on the face of it judicial but rather executive or administrative have been held by the courts to be subject to the principles of natural justice”.

16. Section 32(1) provides that the order of supersession is to be issued after giving the committee an opportunity to state its objections. This rule of hearing can be dispensed with under sub-section 3 of Section 32 only if the Registrar is satisfied that it is not reasonably practicable to do so. Therefore, the prime legislative command is to provide an opportunity to state objections to the proposal to supersede. The resultant decision is essentially a quasi-judicial one. The principle that he who hears shall decide applies to such proceedings.

17. Now the question for decision is as to whether the decision of the Registrar under Section 32 of the Act is to be treated as an institutional decision and thereby to hold that a successor in office could issue the decision on the basis of materials available in the files.

18. In Marico Industries Ltd. v. State Of Kerala (2003 (1) KLT 956) this Court held that the nature and quality of the hearing contemplated and the nature and texture of the decision to be rendered must be carefully and alertly considered to answer the question whether in the given case the hearing/decision contemplated is an institutional one where the golden rule that the one who hears must also render the decision, can be deviated from. Dilating on the scope of hearing in proceedings under Section 59-A of the Kerala General Sales Tax Act, the Bench held that when the disputes partake the character of a lis and the nature of disputes clearly have the colour of a lis between an individual and the authorities and not merely general questions relating to interpretation of the statutory provisions, the decisions are not merely institutional ones. The Bench went on to say that in addition to cold interpretation of the statutory provisions, rules and notifications, live questions of sifting, weighing and appreciation of evidence tendered will have to be resolved. That is not a decision exclusively of the head or heart and it has to be one of both. It was accordingly held that in such cases, the salutary rule of natural justice that one who decides must hear would be violated in substance and content if the person who hears does not render the decision.

19. The decision in Ossein and Gelatine Manufactures' Association v. Modi Alkalies and Chemicals ((1989) 4 SCC 264) referred to by the learned counsel for the additional 4th respondent does not apply to the situation in hand. That is a case where the decision was to be rendered by the Government and therefore, an institutional decision could be had, in terms of what has already been noted above.

20. In cases of supersession under Section 32(1) of the Act, the occurrence of the statutory facts among the different clauses in the said section is a matter about which the Registrar has to be satisfied, if the order that he passes has to stand on a jurisdictional issue. That finding has necessarily to be rendered after taking stock of facts and materials in relation to the functioning of a co-operative society. When the committee to which an opportunity to state objections is given, shows cause as to why the committee shall not be superseded and states its objections with reference to materials, it is the bounden duty of the Registrar to decide on the matter after looking into the materials in the light of the objections. As in the case in hand, even oral evidence may be tendered. As noted by the Division Bench in Marico Industries Ltd. (supra), a decision on those materials cannot be exclusively of the head or of the heart. Not only that, the decision under Section 32 is not to be rendered either by the Government or by any other body of persons. It is not a collective decision that is contemplated or provided for. It is the satisfaction of the Registrar, who is an officer appointed by the State Government under Section 3 of the Act or on whom the powers of the Registrar are conferred under that provision. Therefore, there is no ground to hold that the decision to be rendered under Section 32 could be an institutional one. Hence, the officer who hears the objections of a committee to the notice proposing supersession under Section 32(1) shall himself decide on the matter. The impugned order, admittedly rendered by one, after the committee of which the petitioner was the President was heard by another, is without jurisdiction

21. On behalf of the petitioner, different other grounds have also been raised. They include that the directions in Ext. P4 judgment were not followed and grave prejudice has been caused by non-consideration of the directions projected in that judgment It is also pointed out that without taking any further action on the report under Section 65, there was no ground to issue an order of supersession and that the findings in the impugned order do not sustain the impugned action. But I do not deem it necessary to go into those issues, having in mind the natural consequences of what could follow the findings in the preceding paragraphs.

22. However, it has also to be considered as to whether this writ petition has to fail on some of the grounds raised by the additional 4th respondent. On his behalf, it was argued that the writ petition is not maintainable since the petitioner, though described in the cause title as the President of the Board of Directors of the society, was essentially not holding such position after the supersession and that the petitioner as a President, without the support of the other members, may not have sufficient locus to challenge the order of supersession and still further, that the visitorial jurisdiction of this court need not be exercised, having regard to the fact that no findings in the impugned order are challenged on merits and no injustice or perversity of findings is demonstrated. It is also argued that no prejudice is pleaded or proved.

23. The concept of equality before the law and the equal protection of the laws enshrined in Article 14 of the Constitution holds out the first salutary principle that any action purportedly taken under law has to be in accordance with law. Rule of Law shall prevail. Having held that the impugned order is bad for having been rendered by a person who never heard the parties and that the impugned decision cannot be pushed off as an institutional one, it goes without saying that the said decision has to fall and proceedings have to commence from the stage at which the parties stood on the date of issuance of notice, that led to hearing of the petitioner by Sri. Omanakuttan. Once a decision falls on a jurisdictional issue, it is not for this court to sit as if it were an appellate authority and look into the merits and demerits of the respective cases of the establishment and the committee of the society and to conclude as to whether sufficient grounds exist to uphold the tentative view of the Registrar and consequently, refuse to interfere with an order of supersession. Therefore, this is not a case where the order is merely illegal and therefore, would advise this court to consider whether it has to interfere or refuse to do so on ground that no demonstrable injustice is shown. It is plain and clear case of total lack of jurisdiction in as much as the impugned order has been passed infracting the requirement to consider the objections and hear the parties, more particularly following the directions contained in Exts. P5 and P4. The impugned order is simply void. When such jurisdictional failure has been noticed, the alternate remedy by way of appeal or revision, as pointed out on behalf of the additional 4th respondent also is not of any consequence.

24. On to the question of maintainability of the writ petitioner by the petitioner, the President of the superseded committee of the society, this Court held in Deputy Registrar of Co-operative Societies v. George (1974 KLT 189) that the President of a Cooperative Society would have sufficient interest and locus standi to maintain a writ petition following an order appointing an administrator under Section 33 of the Act. True, that precedent was laid down in a case of a quorum fall consequent on resignation. An order of supersession does not liquidate or disintegrate the committee of a society, though an election can be held. The supersession visits each member of the committee with the consequences individually, apart from collective sufferance. Therefore, even one individual member of a superseded committee of a society would have the locus standi to challenge it. Since the supersession can be only of a committee and not of a member, its necessary corollary would be that if one member of a committee succeeds in the challenge to the supersession of the committee, the supersession would go as a whole and the benefit of the decision against supersession would inure to the benefit of the committee as an institution.

25. The surviving question is the sustainability of this writ petition with the description of the petitioner in the cause title as the President of the committee of the society in question. It is beyond dispute that as on the date of the institution of the writ petition, the committee stood superseded. The identity of the petitioner Jesudasan is not in dispute, in the sense that, no respondent has the case that he could not identify the petitioner. His description as the President of the committee of the society does not give him that status merely because he calls himself so. That by itself does hot mean that the writ petition is not filed by Jesudasan. Such mis-description is not fatal to the writ petition. For the foregoing reasons, this writ petition is only to succeed on the sole ground that the impugned decision has been rendered by an officer other than the one who heard the committee of the society of which the petitioner was the President. No other grounds are dealt with in this writ petition and it is clarified that this Court has not gone into the merit of demerits on the allegations that led to the issuance of the impugned order or the objections stated by the committee against which those proceedings were initiated. All such issues are left open.

26. In the result, this writ petition is allowed quashing Ext. P9 with opportunity to the first respondent to proceed with hearing de novo following a notice that may be issued to those entitled to be heard and the proceedings shall commence from the stage at which the parties stood on the date of issuance of notice that led to hearing of the petitioner by Sri. Omanakuttan. No costs.