WP(C).16813/22 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
WP(C) NO. 16813 OF 2022
PETITIONER/S:
M.B.VINODKUMAR,
AGED 42 YEARS
S/O BHASKARAPILAI, MANGALATH HOUSE, EDAYAR,
BINANIPURAM, ALWAYE, EMAKULAM - 683 502.
BY ADVS.
SOUMIYA C.D
P.P.JACOB
RESPONDENT/S:
1 COCHIN CO-OPERATIVE HOSPITALS SOCIETY LTD.
E 288, GANDHI NAGAR, KOCHI, ERNAKULAM- 682 020,
REPRESENTED BY ITS SECRETARY.
2 THE BOARD OF DIRECTORS OF THE COCHIN CO-OPERATIVE
HOSPITALS SOCIETY LTD. NO. E 288,
GANDHI NAGAR, KOCHI, ERNAKULAM- 682 020/ REPRESENTED
BY ITS PRESIDENT.
3 THE ELECTORAL OFFICER,
COCHIN CO-OPERATIVE HOSPITALS SOCIETY LTD. NO. E
288, GANDHI NAGAR, KOCHI-682 020/ ASSISTANT
REGISTRAR OF CO-OPERATIVE SOCIETIES, ERNAKULAM
4 THE RETURNING OFFICER/ASSISTANT REGISTRAR (PLANNING)
COCHIN CO-OPERATIVE HOSPITALS SOCIETY LTD. NO. E
288, GANDHI NAGAR, KOCHI, ERNAKULAM - 682 020.
5 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
(G),
OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES, KANAYANNUR TALUK, ERNAKULAM - 682 011.
6 . THE STATE CO-OPERATIVE ELECTION COMMISSION,
THIRUVANANTHAPURAM, 3RD FLOOR, CO-BANK TOWERS,
PALAYAM, VIKAS BHAVAN.P.O., THIRUVANANTHAPURAM, PIN
WP(C).16813/22 2
- 695 033, REPRESENTED BY ITS SECRETARY.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
NISHA GEORGE
OTHER PRESENT:
GP AMMINIKUTTY K; GP JOBY JOSEPH (SR) SC FOR SCEC R.
LAKSHMI NARAYAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 9.6.2022, THE COURT ON 14.6.2022 DELIVERED THE FOLLOWING:
WP(C).16813/22 3
V.G.ARUN, J.
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W.P(C).No.16813 of 2022
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Dated this the 14th day of June, 2022
JUDGMENT
The petitioner is a member of the 1st respondent Co-operative Society. The next election to the Managing Committee of the first respondent Society was notified under Exhibit P1 dated 28.4.2022. Following the election schedule, the preliminary voters' list was published on 9.5.2022. Thereupon, the petitioner filed Exhibit P7 objection to the voters' list. Along with the objection, the petitoiner enclosed a list of ordinary members alleged to have been illegally removed and another list of members who are liable to be removed. The third list contained the list of institutions liable to be removed. After considering the objection, 3 rd respondent issued Exhibit P8 directing the 1st respondent to include 4 members and to remove 48 institutional members from the final voters' list. Not being satisfied with the order, the petitioner raised complaints before the 6 th respondent Co-operative Election Commission. This writ petition is filed seeking to quash Exhibit P1 election notification. and to direct the 6th respondent to consider Exhibit P9 representation and pass necessary orders to publish a fair voters' list as part of the election WP(C).16813/22 4 notified under Exhibit P1.
2. Learned Counsel for the petitioner submitted that a proper voters' list is fundamental for a fair election and when objections are raised against the preliminary voters' list, the Electoral Officer is bound to consider the objections meticulously. It is submitted that, in the final voters' list published in connection with the previous election conducted in March, 2017, there were 2358 members. From that list of valid members, 359 members are excluded from the preliminary voters' listin connection with the present election. It is submitted that the bylaws of the 1 st respondent Society provides for issuance of only 2000 shares to individuals. As per Clause 11 of the bylaws, every member is entitled to nominate a person or persons to whom his shares or interest shall be transferred in the event of his death, or the value of the shares and any other money due from the Society, shall be paid. The Clause also mandates that in the event of the death of a member, his nomination shall be given effect to by the Board of Directors. According to the petitioner, the nominees of deceased members were not issued with notice or the shares transferred to their name. Instead, third parties were inducted to the memberships that had fallen vacant on the death of existing members. By adopting this illegal procedure, 351 persons were granted membership. The procedure adopted by the 1 st WP(C).16813/22 5 respondent is contrary to the stipulation in Section 25 of the Co- operative Societies Act, which provides for transfer of the share or interest of a deceased member to the person or persons nominated in accordance with the Rules or bylaws. It is submitted that institutional memberships were also granted without following the eligibility criteria. It is contended that the petitioner having demonstrated the illegalities committed with respect to the voters' list published by the 1st respondent Society, the 3rd respondent ought to have directed the Society to correct the infirmities and proceeded with the election only thereafter. Reliance is placed on Ext.P3 to contend that, much prior to the election notification, the Assistant Registrar had noticed the irregular procedure adopted by the Society by inducting new members in the vacancy of deceased members. Even then, no worthwhile action was taken in the matter.
4. Learned Senior Counsel appearing for the 1 st respondent submitted that the objection raised by the petitioner, though without substance, was acted upon by the 3 rd respondent by directing the Society to include one ordinary member and exclude 49 institutional members from the final voters' list. The Society acted in accordance with the direction and the final voter's list was published after effecting the addition/deletions. The polling had to be rescheduled in view of the by-election to the Thrikkakkara Assembly WP(C).16813/22 6 constituency and the revised schedule has been notified under Ext. R1(b). It is contended that, other than the vague averments in the writ petition and the assertions in court, absolutely no material was produced, or definite objection, is raised by the petitioner before the 3rd respondent. The Electoral Officer is not expected to act upon a vague complaint and mere production of the admission and serial numbers of certain members. Reliance is placed on the decision in Vijaya Kumar v. Joint Registrar [1996 (1) KLT 285], to contend that the Electoral Officer is bound to conduct enquiry regarding eligibility of a voter to be included in the voters' list only if the objections are definite and specific.
5. Refuting the contention that the shares of deceased members were allotted to third persons in violation of Clause 11 of the bylaws and Section 25 of the Act, learned Senior Counsel submitted that, as per the bylaws, the share of a member ipso facto ceases upon his death. The transfer of shares and grant of membership of deceased members was done in strict compliance of the bylaws and the statutory provision. In many an instance, the deceased member had no nominee and in some cases, the legal heirs or the nominees were not interested in the shares being transferred to their names and instead, had received the value of the shares. It is pertinent to note that no nominee or legal heir of WP(C).16813/22 7 any deceased member had complained regarding clandestine or illegal transfer of shares to third parties. As such, the petitioner has no locus standi or cause of action to raise such a complaint. It is argued that Ext.P3 communication issued to a third person does not give rise to any cause of action for the petitioner. Finally it is contended that no ground is made for quashing the election notification and the Electoral Officer having considered the petitioner's objection, the 6th respondent has no further role to play.
6. Learned Government pleader submitted that based on Ext. P3 the Department has ordered an enquiry under Section 66 of the Co-operative Societies Act and appropriate action will be taken on receipt of the report.
7. It is settled law that writ courts will not ordinarily entertain petitions at the intermediate stage in an election process. Of course, this is a rule of discretion and not one of absolute bar in law. Here, the challenge against the election notification is mainly on the ground that 351 persons were granted membership in violation of Clause 11 of the bylaws and Section 25 of the Act. In that context, it is necessary to have a close scrutiny of the Bye-law provision, extracted here under for easy reference;
WP(C).16813/22 8
"(II) Nomination of heir
1) If a member dies, his membership shall ipso facto cease
(a) Every member may nominate a person or persons to whom in the event of his death, his shares or interests in the Society shall be transferred or the value of the shares and any other money due to him from the Society be paid. The member has the right to revoke such nominations making an application in writing to the Society any time. The nomination shall in the event of death of the member, be given effecft to by the Board of Directors provided that:
I) the nomination was signed by the deceased in the presence of two witness attesting the same and II) the nomination has been registered in the books of the Society kept for the purpose.
(b) In the event of there being no person nominated by the deceased member, qualified in accordance with the byelaws for membership, the shares and accruals thereon shall be refunded to the legal heirs or representatives of the deceased, after deducting any money due to the Society in the account of the dece3ased member."
From a reading of the provision it is clear that the member has the option of either nominating or not nominating a person/persons and can even revoke the nomination at a later stage. The nominee can either seek transfer of the shares or claim the value of the shares. The petitioner has no case that, in all the instances pointed out in the objection, the deceased member had named his/her nominee WP(C).16813/22 9 and such nomination provided only for transfer of shares. The petitioner has no contention that the nominees of all the deceased members had insisted on allotment of the shares and refused to accept the value of the shares. As rightly contended, the objection as to violation of Clause 11 has to be raised by the nominees/legal heirs of deceased members and not by a third party. Yet another crucial aspect is that the 3 rd respondent had considered the objection and directed modifications to the final voters' list. If the petitioner's grievance is subsisting, in spite of the direction issued after consideration of his objection, the remedy is to approach the Arbitration Court under Section 69 of the Co-operative Societies Act after the election is conducted. In any event, no extraordinary circumstance warranting interference with the election, in exercise of the discretionary jurisdiction under Article 226 of the Constitution of India, is made out.
For the aforementioned reasons, the writ petition is dismissed.
Sd/-
V.G.ARUN, JUDGE
vgs
WP(C).16813/22 10
APPENDIX OF WP(C) 16813/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTOCOPY OF THE ELECTION
NOTIFICATION DATED 28.4.22 PUBLISHED BY
THE SIXTH RESPONDENT
Exhibit P2 TRUE PHOTOCOPY OF THE RELEVANT PORTION OF
THE BYELAW, PAGES 1 TO 5 OF THE FIRST
RESPONDENT
Exhibit P3 TRUE PHOTOCOPY OF THE RELEVANT PORTION OF
THE PROCEEDING PAGES 1 TO 5 ISSUED BY THE
FIFTH RESPONDENT DATED 30.3.2019.
Exhibit P4 TRUE PHOTOCOPY OF THE LIST OF
INSTITUTIONAL MEMBERS.
Exhibit P5 TRUE PHOTOCOPY OF THE LIST OF THOSE 359
MEMBERS WHO WERE EXCLUDED FROM THE VOTERS
LIST.
Exhibit P6 TRUE PHOTOCOPY OF THE LIST OF PERSONS
SUBMITTED BY THE PETITIONER BEFORE THE
ELECTORAL OFFICER DATED
Exhibit P7 TRUE PHOTOCOPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
THIRD RESPONDENT DATED 13.5.2022.
Exhibit P8 TRUE PHOTOCOPY OF THE PROCEEDING ISSUED BY
THE THIRD RESPONDENT.
Exhibit P9 TRUE PHOTOCOPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
SIXTH RESPONDENT DATED 17.5.2022.
Exhibit P10 TRUE PHOTOCOPY OF THE REPRESENTATION FILED
BY ONE JIJI VICTOR DATED 17.5.2022
Exhibit P11 TRUE PHOTOCOPY OF THE REPRESENTATION FILED
BY ONE M.S.OMANAKUTTAN DATED 14.5.2022.
RESPONDENT EXHIBITS
Exhibit R1(a) TRUE COPY OF THE PROCEEDINGS BEARING
WP(C).16813/22 11
NO.V.597/2022 DATED 17/05/2022 ISSUED BY
THE ELECTORAL OFFICER.
Exhibit R1(b) TRUE COPY OF THE CONSOLIDATED STATEMENT OF
THE AUDIT REPORT MAINTAINED BY THE
RESPONDENT SOCIETY.
Exhibit R1(c) TRUE COPY OF THE AMENDED ELECTION
NOTIFICATION BEARING
NO.E(2)3166/2022/S.C.E.C. DATED
27/05/2022.