Sarath Babu vs Satheesh Kumar T.K
2021 Latest Caselaw 12644 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
                                   &
          THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
     MONDAY, THE 31ST DAY OF MAY 2021 / 10TH JYAISHTA, 1943
                    CON.CASE(C) NO. 38 OF 2021
    AGAINST THE ORDER/JUDGMENT IN WA 1601/2020 OF HIGH COURT
                            OF KERALA


PETITIONER/S:

             SARATH BABU,AGED 45 YEARS
0




             S/O SEKHARAN NAIR, RESIDING AT KOZHIKODE,
             M.N.6177, KOZHIKODE CITY POLICE EMPLOYEES CO-
             OPERATIVE SOCIETY LTD NO F 963, PAVAMANI ROAD,
             KOZHIKODE.

             BY ADV P.P.JACOB



RESPONDENT/S:

      1     SATHEESH KUMAR T.K.,AGED 54 YEARS
            FATHERS NAME NOT KNOWN TO THE PETITIONER
            STATE CO-OPERATIVE ELECTION COMMISSION,
            THIRUVANANTHAPURAM, 3RD FLOOR, CO-BANK TOWERS,
            PALAYAM, VIKAS BHAVAN P.O.THIRUVANANTHAPURAM-695
            033.

      2     JAYARAJAN T,
            FATHERS NAME NOT KNOWN TO THE PETITIONER, AGED
            ABOUT 55 YEARS, JOINT REGISTRAR OF CO-OPERATIVE
            SOCIETIES (G), KOZHIKODE, OFFICE OF THE JOINT
            REGISTRAR OF CO-OPERATIVE SOCIETIES, PUTHIYARA,
            KOZHIKODE-673 004.
                                   -2-
Cont.Case (C). No. 38 of 2021



      3        SHEEJA N.M,
               FATHERS NAME NOT KNOWN TO THE PETITIONER, AGED
               ABOUT 52 YEARS, ASSISTANT REGISTRAR OF CO-
               OPERATIVE SOCIETIES (G), KOZHIKODE, OFFICE OF
               THE ASSISTANT REGISTRAR OF CO-OPERATIVE
               SOCIETIES (G), PUTHIYARA, KOZHIKODE-673 004.

                BY ADV R.LAKSHMI NARAYAN, SC



THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY
HEARD ON 31.05.2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                     -3-
Cont.Case (C). No. 38 of 2021




                                JUDGMENT

Ravikumar, J.

The petitioner, who is the appellant in W.A. No. 1601 of 2020,

has filed the captioned Contempt of Court case seeking initiation of

Contempt of Court proceedings against the respondents for willful

disobedience of the directions of this Court in order dated 22.12.2020

in W.A. No. 1601 of 2020. The said order was passed after admitting

the appeal on 22.12.2020 and upon forming the opinion that the

following issue of relevance, also calls for consideration in the

appeal:- "when a committee of a Co-operative Society passes a

resolution for conducting election in terms of the provisions under

Rule 35A of the Kerala Cooperative Societies Rules (for short the

"Rules") and forwarded it to the Joint Registrar, whether the Joint

Registrar can withhold the same for any reason and decline to

forward the same to the Kerala State Cooperative Election

Commission."

2. While passing the order dated 22.10.2020 we have also

Cont.Case (C). No. 38 of 2021

taken note of the fact that the Committee of the Society, which was

then in office, had passed a fresh resolution on 26.11.2020 viz.

Annexure 1, for conducting election to the new committee of the

Society on 06.02.2021. However, the said Election Resolution was not

forwarded by the Joint Registrar to the State Co-operative Election

Commission. After identifying the aforesaid question as one of the

issues that calls for consideration and with a view to keep the appeal

carrying the said and allied questions alive and also for safeguarding

the interest of the parties the second and third respondents were

directed to forward Annexure 1 Election Resolution to the first

respondent, viz., the State Cooperative Election Commission. It was

made clear thereunder that the said action in forwarding the

resolution as also consequential notification, if any, issued, will be

subject to the result of this appeal.

3. Heard the learned counsel on both sides.

4. In the contempt case, after hearing the learned counsel

for the petitioner, we issued notice to respondents 2 and 3 who are

the alleged contemnors. They appeared and filed affidavits initially to

Cont.Case (C). No. 38 of 2021

dispense with the personal appearance. Thereafter, on 16.02.2021,

both the alleged contemnors appeared before this Court. Recitals in

paragraph 7 of their respective affidavits are to the effect that in the

remarks column which is mandatory, the words 'Not reommended'

are entered for the reason that the resolution was not in compliance

with Rule 35A (1) of the Kerala Co-operative Societies Rules 1969 and

in such circumstances, in paragraph 7 of the affidavit, the

endorsement (not recommended) was inserted on the bona fide belief

that as otherwise, it would cause hindrance in the matter of

submission of election resolution through online platform. In their

respective affidavits, at paragraph 7, they stated thus:-

Paragraph 7 of the counter affidavit by the 2nd respondent:

"7. It is humbly submitted that in compliance to the order of this Honourable Court, this respondent acted accordingly and the procedure adopted by the Assistant Registrar(General), Kozhikode are detailed herein;

a) For submitting an election proposal there is an online platform created by State Co-operative Election Commission,

b) The society has submitted its proposal through

Cont.Case (C). No. 38 of 2021

the online platform,

c) On receiving the proposal it was verified and submitted to Election Commission on 07.01.2021.

d) There are mandatory and non-mandatory columns that are to be filled by Assistant Registrar (General) and the society concerned,

e) In the remarks column which is mandatory, Assistant Registrar marked the words Not recommended for the reason that the resolution was not in compliance with Rule 35(A)(1) of the Kerala Co-operative Societies Rules, 1969,

f) The Assistant Registrar (General), Kozhikode, marked the words Not recommended for the presumption that there will be hindrance in submitting online application if the remarks are happened to be against Rule 35(A)(1) of the Kerala Co-operative Societies Rules, 1969."

Paragraph 7 of the counter affidavit by the 3rd respondent: "7. It is humbly submitted that in compliance to the order of this Honourable Court, this respondent acted accordingly and the procedure adopted by this respondent are detailed herein;

a) For submitting an election proposal there is an online platform created by State Co-operative Election Commission,

Cont.Case (C). No. 38 of 2021

b) The society has submitted its proposal through the online platform,

c) On receiving the proposal, it was verified and submitted to Election Commission on 07.01.2021,

d) There are mandatory and non-mandatory columns that are to be filled by Assistant Registrar (General) and the society concerned,

e) In the remarks column which is mandatory, this respondent marked the words Not recommended for the reason that the resolution was not in compliance with Rule 35(A)(1) of Kerala Co-operative Societies Rules, 1969,

f) This respondent marked the words Not recommended on presumption that there will be hindrance in submitting online application if the remarks are happened to be against Rule 35(A)(1) of Kerala Co-operative Societies Rules, 1969."

5. After going through the affidavits, more particularly

paragraph 7, we held that by inserting the words as "not

recommended" and thereby they disabled the State Co-operative

Election Commission to act upon the resolution, respondents 2 and 3

have prima facie disobeyed the orders of this Court. Pursuant to the

said prima facie finding, respondents in the contempt petition who

Cont.Case (C). No. 38 of 2021

appeared in person before us, sought time to file affidavits making an

unconditional apology for inserting such an endorsement, while

forwarding the election resolution to the State Co-operative Election

Commission. Permission sought for was granted and such affidavits

were directed to be filed on or before 18.02.2021. After passing an

elaborated order on 16.02.2021, they were permitted to place on

record such affidavits carrying unconditional apology. Accordingly,

the alleged contemnors/respondents in the captioned contempt case

have filed such affidavits on 09.02.2021 and 16.02.2021 respectively.

Obviously, both the alleged contemnors have filed unconditional

apology in writing.

6. Having heard the learned counsel appearing for

respondents 2 and 3 namely Sri.Jayarajan T. and Smt.Sreeja N.M., and

perusing their affidavits carrying unconditional apology, we are

inclined to accept the unconditional apology, as we find that they

have made it bonafidely. In that view of the matter, we are not

proposing to proceed with the Contempt of Court proceedings against

them, any further. Accordingly, the unconditional apology tendered

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by respondents 2 and 3 are accepted and consequently, all further

proceedings against them in this Contempt of Court proceedings are

dropped. Notices issued to them stand discharged.

sd/-

C.T.RAVIKUMAR Judge

sd/-

MURALI PURUSHOTHAMAN Judge das

Cont.Case (C). No. 38 of 2021

APPENDIX OF CON.CASE(C) 38/2021

ANNEXURE/EXHIBITS

ANNEXURE I CERTIFIED COPY OF THE ORDER IN WA NO 1601/2020 DATED 22.12.2020

ANNEXURE II TRUE PHOTOCOPY OF THE LETTER SUBMITTED TO THE FIRST RESPONDENT DATED NIL

ANNEXURE III TRUE PHOTOCOPY OF THE LETTER ISSUED ON 24.12.2020 WITHOUT DOCUMENTS

ANNEXURE IV TRUE PHOTOCOPY OF THE POSTAL RECEIPT DATED 24.12.2020