Kerala High Court
K. Surendran vs The State Co-Operative Election ... on 13 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
Thursday, the 13th day of April 2023 / 23rd Chaithra, 1945
WP(C) NO. 9980 OF 2023 (V)
PETITIONER:
K. SURENDRAN AGED 68 YEARS S/O. P.KRISHNA PILLAI, MEMBER NO. 5250,
NEYYATTINKARA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LTD. NO. T-417, NEYYATTINKARA P.O.,
THIRUVANANTHAPURAM-695121, RESIDING AT VAZHANGAL HOUSE, AYIRA P.O.,
PARASSALA, THIRUVANANTHAPURAM DISTRICT.
RESPONDENTS:
1. THE STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, CO BANK TOWERS,
VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN - 695033, REPRESENTED BY ITS
SECRETARY.
2. THE ELECTORAL OFFICER, ELECTION TO THE NEYYATTINKARA PRIMARY
COOPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO. T-417
NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695121[ASSISTANT REGISTRAR OF CO-
OPERATIVE SOCIETIES (GENERAL), NEYYATTINKARA P.O., ALUMMOODU,
THIRUVANANTHAPURAM DISTRICT., PIN - 695121]
3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, NEYYATTINKARA,
NEYYATTINKARA P.O. ALUMMOODU, THIRUVANANTHAPURAM DISTRICT, PIN - 695121
4. THE RETURNING OFFICER/UNIT INSPECTOR, BALARAMAPURAM, OFFICE OF THE
ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, NEYYATTINKARA,
NEYYATTINKARA P.O. ALUMMOODU, THIRUVANANTHAPURAM DISTRICT., PIN - 695121
5. THE NEYYATTINKARA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL
DEVELOPMENT BANK LTD. NO. T-417 NEYYATTINKARA P.O.,
THIRUVANANTHAPURAM-695121, REPRESENTED BY THE SECRETARY.
6. SMT. J. PRAMEELA, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,
NEYYATTINKARA, NEYYATTINKARA P.O. ALUMMOODU, THIRUVANANTHAPURAM DISTRICT,
PIN - 695121
7. SRI SOLOMON ALEX ,AGED 71 YEARS, S/O. K. ALEXANDER, MEMBER,
NEYYATTINKARA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT
BANK LTD. NO. T-417, NEYYATTINKARA P.O., THIRUVANANTHAPURAM-695121,
RESIDING AT ALEX COTTAGE, VAZHUTHOOR, NEYYATTINKARA P.O,
THIRUVANANTHAPURAM, PIN - 695121
8. THE REGISTRAR OF CO-OPERATIVE SOCIETIES JAWAHAR SAHAKARANA BHAVAN, DPI
JUNCTION, THYCAUD P.O., THIRUVANANTHAPURAM, PIN - 695014
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to pass an order directing the 1st respondent State Co-operative
Election Commission to ensure the conduct of the election as notified in
Exhibit-P1 restoring the said notification, pending disposal of the Writ
Petition.
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this Court's order dated
04.04.2023 and upon hearing the arguments of SRI.GEORGE POONTHOTTAM
(SENIOR ADVOCATE) along with M/S.NISHA GEORGE & SIDHARTH.R.WARIYAR,
Advocates for the petitioner, STANDING COUNSEL for R1, R2 & R4 (By Order),
SENIOR GOVERNMENT PLEADER, for R3 & R8 (By Order), SRI.T.R.HARIKUMAR,
Advocate for R5 (By Order) and of SRI.M.SASINDRAN Advocate for R7 (By
Order), the Court passed the following:
GOPINATH P., J.
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W.P.(C)Nos.9342, 9772 and 9980 of 2023
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Dated this the 13th day of April, 2023
ORDER
WPC No.9342 of 2023 and W.P.(C)No.9772 and 2023 are writ petitions
filed by the Board of Directors of the Neyyattinkara Primary Co-operative
Agricultural and Rural Development Bank Limited [hereinafter referred to as
'the bank' or the 'primary society'], while W.P.(C)No.9980 of 2023 is a writ
petition filed by an individual member of the Board of Directors of the Bank.
2. WPC No.9342 of 2023 was filed apprehending that the elections
scheduled to be held to the Board of Directors of the bank on 08.04.2023 would
be cancelled, leading to the appointment of an Administrator or a Committee of
Administrators, on or after 13.04.2023, the date on which the term of the
present board would expire. As apprehended, the Electoral Officer did not draw
up a final list of eligible voters, and the Elections scheduled on 08.04.2023
came to be cancelled. WP(C)Nos.9772 & 9980/2023 have been filed inter alia
challenging the notification issued by the State Co-operative Election
Commission cancelling the election originally scheduled on 08.04.2023.
3. The petitioners in these writ petitions contend that by virtue of the
judgment of this Court in W.P.(C)No. 2962 of 2023, the elections to the Kerala
State Co-operative Agricultural and Rural Development Bank Limited
[hereinafter referred to as the 'apex society'] had to be conducted without
further delay. In that judgment, it was ordered that the resolution for
conducting the election to the apex society should be taken on or before
15.03.2023. There was a further direction that the date for polling in terms
of the resolution shall not be later than 15.05.2023. It is the submission of
the learned Senior Counsel appearing for the petitioner in W.P.(C)No.9980
of 2023 as well as the learned counsel appearing for the petitioners in the
other two cases that the delegate of the bank (the primary society) will
represent the Primary Society in the polling to be held to the Apex Society
and that, if an Administrator or an Administrative Committee is appointed in
respect of the Primary Society, the delegate will be a person decided by the
Administrator or the Administrative Committee and that may materially
affect the result of the election to the Apex Society. On 04.04.2023, I had
passed the following interim order in the above writ petitions;
"The election to the Neyyattinkara Primary Co-operative
Agricultural and Rural Development Bank Ltd. was scheduled to
be held on 08-04-2023. The term of the present Managing
Committee of the said Society is only till 13-04-2023. The Electoral
Officer has not published the final voters list. The Rules require
that the final voters list must be published at least 20 days prior to
the date fixed for polling.
2. According to the Electoral Officer, the final voters list could not
be published because certain records were not produced by the Society,
despite request. It is the case of the Electoral Officer that a perusal of the
records requested for was absolutely imperative for preparing the final
voters list.
3. The learned Senior Counsel appearing for the petitioner in W.P.
(C) No.9980 of 2023 and the learned counsel appearing for the
petitioners in the connected writ petitions have a case that the Electoral
Officer cannot conduct a roving enquiry. According to them, this is
settled by various decisions of this Court. It is submitted that the
attempt of the Electoral Officer is to somehow cancel the proposed
election and ensure that an Administrator/Administrative Committee is
put in place in the place of the elected committee after 13-04-2023. This,
according to the learned counsel, will result in the election to the Apex
Society scheduled in the month of May, 2023, being conducted contrary
to democratic principles as the nominees of the Primary Societies
constitute the General Body for the election to the Managing Committee
of the Apex Society.
4. A statement has been filed by the Electoral Officer in
W.P.(C)No.9772/2023, where in paragraph 5, it is stated as follows:
It is submitted that for the purpose of preparing a fair and
proper voters list, the following documents are necessary to be
furnished to the Electoral Officer:
(i) The Membership Register
(ii) The list of members finalized, on bifurcation of the Society.
(iii) The list of members prepared under Rule 33(4) of the Rules,
as on 31.03.2022.
(iv) The list of members having share amount of Rs.100/-
The Society may be directed to furnish the above documents for
the purpose of finalizing the voters list.
5. The learned counsel appearing for the petitioners in these cases
would submit that the records requested for by the Electoral Officer can
be inspected at any time and since the final voters list has to be
published in the notice board of the Society, the Electoral Officer may be
required to verify the records at the office of the Society.
6. The learned counsel appearing for the Election Commission and
the learned Senior Government Pleader would submit that the Electoral
Officer has a specific case that the Managing Committee members had
actually prevented the Secretary from handing over the records to the
Electoral Officer, when the Electoral Officer visited the office of the
Society for verifying the records.
7. Since the election could no longer be held on 08.04.2023, the
Managing Committee has now forwarded a resolution to conduct the
election on 06.05.2023. The learned Special Government Pleader
submits that the resolution will be forwarded to the Election Commission
by the concerned Assistant Registrar of Co-operative Society today
itself.
8. Having regard to the submissions made and having regard to
the statement filed by the Electoral Officer, the following directions are
issued:
(i) The records mentioned at paragraph 5 of the statement
by the Electoral Officer in W.P.(C)No.9772/2023, shall be made
available for perusal of the Electoral Officer, at the office of the
Society.
(ii) The Electoral Officer shall be permitted to peruse those
records, without any interference whatsoever from the members
of the Managing Committee of the Society.
(iii) The verification shall be carried out by the Electoral
Officer not later than 5.00 p.m. on 9.4.2023.
(iv) The Electoral Officer shall thereafter publish a final voters
list. The Election Commission shall issue a fresh notification for
holding the election to the Managing Committee of the Society,
acting on the resolution being forwarded in this regard by the
Managing Committee of the Society, through the Assistant
Registrar of the Co-operative Societies.
List this matter for further consideration on 10-04-2023."
4. When these matters came up for consideration on o3.04.2023, it
was submitted on behalf of the petitioners that despite passing a fresh
resolution to hold the elections on 06.05.2023, the Assistant Registrar of co-
operative societies had not forwarded the same to the State Co-operative
Election Commission. It was taking note of the above submission that the
order dated 04.04.2023 (extracted above was issued).
5. Even today, it is the submission of the learned counsel
appearing for the petitioners in these cases that no fresh date of election has
been notified in respect of the bank. It is submitted that the term of the
existing Managing Committee of the Primary Society is to expire today, and
unless some orders are issued in the matter of management of the Society till
the elections are held, the department will appoint the Administrator or the
Administrative Committee, and that will materially affect the result of the
election of the Apex Society as the chances of rival political fronts in the
Elections to the Apex Society are so evenly placed that the appointment of an
administrator/administrative committee in one or two of the primary
societies will change the course of the election. There are serious allegations
that the attempt of the officials is to prevent the conduct of elections on
account of political equations and with ulterior motives. The judgment of a
W.P.(C)No.9342/2023 & conn.cases 5
Division Bench of this Court in The State Co-operative Election
Commission v. N.P Paulose (judgment dated 06.07.20217 in
W.A.No.1410 of 2017) and that of a learned Single Judge of this Court in
Anapanthy Service Co-operative Bank Ltd. v. State Co-operative
Election Commission (judgment dated 10.11.2022 in W.P.(C)No.33507
of 2022) are referred to contend that in such circumstances this Court must
order the constitution of an administrative committee from amongst the
members of the present Board of Directors of the Bank.
6. Sri.P.P Tajudeen, the learned Special Government Pleader
appearing for the official respondents and Sri.M.Sasindran appearing for the
7th respondent in W.P.(C)No.9980 of 2023 would vehemently submit that
the allegations in the writ petition to the extent they suggest that there was a
purposeful attempt to delay the conduct of elections to the Board of Directors
of the bank/primary Society are absolutely fallacious. It is pointed out that
despite the best efforts of the Electoral Officer, the office bearers of the
Primary Society had refused to share the necessary details to enable the
Electoral Officer to prepare a proper voters list which is a sine qua non to
conduct elections to the Board of Directors of the Primary Society. It is
submitted that the failure on the part of the office bearers of the Primary
Society to provide necessary details to the Electoral Officer should not result
in a situation where a member or members of the Board of Directors of the
Primary Society are allowed to continue in office beyond their term. It is
submitted that the factual situation considered by the Division Bench in the
W.P.(C)No.9342/2023 & conn.cases 6
judgment in W.A.No.1410 of 2017 is completely different. It is submitted that
proceedings under Section 65 of the Kerala Co-operative Societies Act have
been invoked against the members of the present Board of Directors. It is
submitted that in such circumstances, the question of appointing an
Administrative Committee consisting of members of the present Board of
Directors does not arise for consideration.
7. The learned Standing Counsel appearing for the State Election
Commission would submit that the Electoral Officer had no option but to
recommend for cancellation of the elections scheduled on 08.04.2023, as she
was not in a position to prepare a proper voters list on account of the fact
that the office bearers of the Primary Society have not provided necessary
details.
8. The learned counsel appearing for the petitioners in these cases
would submit that the proceedings initiated against the present Board of
Directors of the Primary Society have been stayed by this Court in W.P.
(C)No.32305 of 2022.
9. Having heard the learned counsel appearing for the petitioners
in these cases, the learned Senior Government Pleader appearing for the
official respondents, Sri.M.Sasindran appearing for the 7 th respondent in
W.P.(C)No.9980 of 2023 and the learned Standing Counsel appearing for
the State Election Commission and taking into consideration of the judgment
of the Division Bench in W.A.No.1410 of 2017 and the judgment of the
learned Single Bench of this Court in W.P.(C)No.33507 of 2022, and though
the interim reliefs sought for in these Writ Petitions cannot be granted, I am
of the view that the petitioners are entitled to an order for the appointment
of an administrative committee from amongst the members of the present
board of directors. The reasons which compel me to hold so are the
following: -
A. There are serious allegations that there is an attempt to delay the
conduct of the election in order to ensure that the voting to the
elections to be held to the Apex Society is materially affected. Though
it would not be proper to reach a finding on this issue either way at
this stage of the proceedings, it must be ensured that the elections to
the apex society are held in compliance with all democratic principles;
B. A Division Bench of this Court in The State Co-operative Election
Commission v. N.P Paulose held as follows:-
"6. The term of the Committee has completed. The election ought to
have been conducted, but because of the pendency of the amendment of
the bye laws , it could not be so done. The result is that in such a
situation the Registrar, in terms of Section 33(1)(b), is required to
constitute an adhoc committee to manage the affairs of the Co-operative
Society till proper elections are conducted and a new Managing
Committee is put in place. Thus, the appointment of adhoc committee
was not on account of any mal-administration or misfeasance on the
part of the Committee, but only on account of the correction of the
byelaws. Otherwise, there is no default on the part of the Co-operative
Society. Thus even though the Registrar has a discretion to appoint an
adhoc committee of maximum three persons, one among them as a
convenor, who need not be member of the society to manage the affairs
of the society, it does not bar the members of the Co-operative Society
itself. Considering that the Co-operative Society is a democratic
institution by and for the benefit of the members themselves, it would
ordinarily be desirable that members of the Co-operative Society be
considered, if not otherwise disqualified. Why should a foreigner to the
Co-operative Society be considered, if there are competent persons in
the Co-operative Society itself. Discretion conferred by Section 33(1)(b)
is not an arbitrary or a fanciful discretion. It has to be exercised on
some principles, one of which would be to avoid administration of a
Society by nonmembers, even on an adhoc basis, unless there are good
reasons to avoid the members.
7. In the present case the learned single Judge was aware of the
situation under which the adhoc committee had to be formed and to
safeguard the interest of the Co-operative Society ordered that the
adhoc committee would be of three members who would be the
President of the Co-operative Society and two other members. In other
words, he would not be either a Government Officer or a non-member.
8. On the facts noted above, we do not consider it a proper case to
interfere, because the State and the Election Commission is only
aggrieved by the fact that their discretion has been taken away.
Considering the facts, consequence of events and in order to preserve
the Co-operative Society, we do not think that the order of the learned
single Judge needs interference."
C. A learned single judge of this Court in Anapanthy Service Co-
operative Bank Ltd. v. State Co-operative Election
Commission in almost similar circumstances came to a conclusion
that since the existing managing committee is an elected body and
since there are no serious allegations against them, an administrative
committee from amongst them can be appointed, pending the holding
of elections. Though the respondents may be right in contending that
there are allegations against the present Board, I cannot ignore the fact
that the Board was never superseded, though this may have been on
account of orders issued by this Court in W.P (C) 24141 of 2022 and
W.P (C) No. 32305 of 2022.
Therefore, I direct the Joint Registrar of Co-operative Societies (General),
Thiruvananthapuram, to issue appropriate orders constituting an
Administrative Committee consisting of the President, the Vice President
and one other member of the present Board of Directors of the Neyyattinkara
Primary Co-operative Agricultural and Rural Development Bank Limited as
W.P.(C)No.9342/2023 & conn.cases 9
an Administrative Committee to carry out with the administration and
management of the Society. This arrangement shall continue till
23.05.2023. Post these matters for further consideration on 23.05.2023.
sd/-
GOPINATH P., JUDGE
rkj
13-04-2023 /True Copy/ Assistant Registrar
