Kerala High Court
M.B.Vinodkumar vs Cochin Co-Operative Hospitals ... on 14 June, 2022
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
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
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
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
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;
"(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
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
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
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.
