Kunnathukal Service ... vs The State Co-Operative Election ...
2023 Latest Caselaw 8417 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
        MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945
                         WP(C) NO. 22938 OF 2023


PETITIONER:

            KUNNATHUKAL SERVICE CO-OPERATIVE BANK LTD.NO. 1101
            KUNNATHUKAL.P.O., THIRUVANANTHAPURAM, PIN - 695 504.
            REPRESENTED BY ITS PRESIDENT.


            BY ADVS.
                       B.S.SWATHI KUMAR
                       ANITHA RAVINDRAN
                       HARISANKAR N UNNI




RESPONDENTS:

    1       THE STATE CO-OPERATIVE ELECTION COMMISSION
            CO-BANK TOWERS, VIKAS BHAVAN, PALAYAM,
            THIRUVANANTHAPURAM, PIN - 695 033.
            REPRESENTED BY ITS SECRETARY


    2       THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
            (GENERAL), NEYYATTINKARA, THIRUVANANTHAPURAM,
            PIN - 695 141.


    3       ADDL. R3. V.UDAYA KUMAR,
            AGED 47 YEARS, S/O.VIKRAMAN PANICKER,
            V.S.BHAVAN, NILAMAMOODU, CHERIYAKOLLA.P.O.,
            THIRUVANANTHAPURAM - 695 504.


    4       ADDL. R4. G. KUMAR,
            AGED 50 YEARS, S/O. GOPINATHAN NAIR,
            ARCHANA MOOPPUKALA KUNNATHUKAL, KARAKONAM P.O.,
            THIRUVANANTHAPURAM-695 504.
 W.P.(C)No.22938/2023                 2

      5       ADDL. R5. VIJAY LOVLIN A.J.,
              S/O. ANTONY BABU,
              LOVLIN NIVAS, UNDANCODE, MEKKINKARA, VALIYAKAL,
              ELLUVILA P.O.-695 504.
              IS IMPLEADED AS PER ORDER DATED 26.07.2023 IN
              I.A.1/2023 IN THE WP(C).

              BY ADVS.
                       C.M.NAZAR
                       SUMAN CHAKRAVARTHY
                       K.R.RIJA
                       RESHMI THOMAS (GP)



       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.22938/2023                   3



                             JUDGMENT

Petitioner is a Primary Agricultural Credit Co-operative

Society, registered under the Kerala Co-operative Societies

Act, 1969 (hereinafter referred to as 'the Act'). The Managing

Committee of the Society resolved to conduct fresh elections

to the Managing Committee on 20-08-2023 from 8.00 A.M. to

4.00 P.M. at LMS Upper Primary School, Kottukonam and the

resolution was duly forwarded to the competent authority in

terms of Ext.P1. The petitioner was thereafter served with

Ext.P3 communication by the Assistant Registrar of Co-

operative Societies stating that there have been certain

complaints that membership has not been granted by the

Society to several persons eligible to obtain such membership.

Subsequently the petitioner was served with an order dated

07-07-2023 of the 2nd respondent stating that since

membership has not been given to certain eligible persons, the

resolution to hold the elections must be taken afresh after

granting membership to eligible persons.

2. The learned counsel appearing for the petitioner

would submit that there is absolutely no rhyme or reason for

the 2nd respondent to refuse to act on the resolution taken by

the Managing Committee to hold elections on 20-08-2023. It

is submitted that the statute contemplates a definite

procedure for the purposes of adjudication of claims for

membership and unless the right to membership is established

by adopting that procedure, the 2nd respondent could not have

taken it up on himself to withhold the resolution for holding

the elections. It is submitted that the 2 nd respondent cannot

adjudicate on the rights of membership and therefore the

decision taken by him not to act on the resolution taken by the

Managing Committee to hold elections on 20-08-2023 is

clearly without jurisdiction. It is submitted that the

consequent communication issued by the State Co-operative

Election Commission (Ext.P6) on the basis of the information

provided by the 2nd respondent that memberships have been

denied to several persons is also clearly illegal. It is submitted

that though the term of the Managing Committee is till

20-10-2023, it is open to the Managing Committee to decide

the holding of elections on any earlier date, as has been held

by this Court in Managing Committee, Thiruvalla East Co-

operative Bank Ltd. v. State Co-operative Election

Commission, Tvm and Others; 2016 (4) KHC 703 , which

has been followed by this Court in Ext.P7 judgment in

W.P.(C)No.15779 of 2023.

3. The learned Standing Counsel appearing for the

State Co-operative Election Commission would submit that the

State Co-operative Election Commission had only acted on the

information provided by the Assistant Registrar and therefore

there is no illegality whatsoever in Ext.P6 communication.

4. The learned Government Pleader would also support

the stand taken by the 2nd respondent and contend that when

it is clear that elections were being held earlier to deny the

membership claim of eligible persons, which has a direct

bearing on the election results, the 2 nd respondent was right in

not taking action on the basis of the resolution for holding

elections on 20-08-2023.

5. The learned counsel appearing for additional

respondents 3 to 5 (persons who had applied for membership)

would submit that in the facts of the present case it is clear

that the resolution to hold elections on an earlier date was to

defeat democratic process by denying membership to eligible

persons. It is submitted that there is a clear finding by the 2 nd

respondent that large number of applications for membership

have been unnecessarily kept pending by the Managing

Committee of the Society, without processing them. It is

submitted that holding of elections in such circumstances

would clearly be contrary to the interest of the Society and to

democratic principles. It is submitted that the only reason for

denying membership to eligible persons is to ensure that, only

persons who are favourable to the present Managing

Committee, are granted membership in the Society. It is

submitted that since the term of the Society is till October

2023 and since there were complaints regarding denial of

membership to eligible persons, there is nothing wrong in the

proceedings of respondents 1 and 2 in refusing to hold

elections on 20-08-2023, on the basis of the resolution passed

by the Managing Committee.

6. Having heard the learned counsel for the petitioner,

the learned Standing Counsel for the State Co-operative

Election Commission, the learned Government Pleader for the

2nd respondent and the learned counsel appearing for

additional respondents 3 to 5, I am of the view that the issues

stand covered in favour of the petitioner by virtue of the

judgment of this Court in W.P.(C)No.22430/2023. There, the

question considered was, whether the elections to the

Managing Committee could be postponed on the ground that

there were complaints regarding denial of membership. In

paragraph No.6 of the judgment in W.P.(C)No.22430/2023, I

have held as follows:

"6. Having heard the learned Senior Counsel appearing for the petitioner, the learned Standing Counsel appearing for the State Co-operative Election Commission and Adv. M.Sasindran, for additional respondents 4 to 11, I am of the opinion that the petitioner is entitled to succeed. The provisions of the Section 16 of the Kerala Co-operative Societies Act, 1969, (hereinafter referred to as 'the Act') contemplate a procedure for determination of the question as to whether a person is eligible for membership or not. The provisions of sub-section (2A) of Section 16 of the Act, provide that when an application for membership in a Society is not disposed of within the time specified in sub-section (2) of the Act, the Registrar shall be bound, on the written request of the applicant, to determine whether such membership shall be given or not. The provisions of sub-section (2) of Section 16 of the Act provide that a decision on the application for membership shall be taken within a period of two months from the date of receipt of the application. A combined reading of the provisions contained in sub-section (2), (2A) and (2B) of Section 16 of the Act makes it clear that the question as to whether the membership was illegality denied to any person by a Society, is a matter that has to be determined in the manner provided for in those provisions. The State Co- operative Election Commission is not called upon to defer any election or refuse to act on a resolution passed by the Society for holding elections on a particular day on the ground that there

are complaints regarding denial of memberships to eligible persons, by the Society in question. It is clear from the submission made by the learned Standing Counsel for the State Co-operative Election Commission that the applications for membership were pending from the month of May, 2022. If that be the case it is clear from the provisions of Section 16 of the Act that the persons aggrieved had to resort to the provisions in sub- section (2A) of Section 16 of the Act if they had a grievance that the membership had been illegally denied to them. Having failed to do so it cannot be contended at the time when a resolution had been forwarded for the purposes of holding elections, that the elections should not be held for the reason that there was illegal denial of membership. In that view of the matter and taking into consideration the fact that a fresh resolution has been forwarded to the State Co-operative Election Commission, for holding elections on 04-09-2023, and also taking into consideration the submission of the learned Standing Counsel for the State Co-operative Election Commission that the said resolution has not been received through the Registrar of Co- operative Societies, this writ petition will stand disposed of with the following directions:

(i) The Registrar of Co-operative Societies shall forward the resolution passed by the Managing Committee of the petitioner-Society for holding of elections on 04-09-2023 to the State Co-operative Election Commission forthwith;

(ii) On receipt of such resolution the State Co- operative Election Commission shall take steps to hold the elections in compliance with the provisions of Rule 35A of the Co-operative Rules 1969 without any further delay and in a manner ensuring that the elections are held and the results are declared before the term of the existing managing committee expires."

In the facts of the present case, the learned counsel for the

petitioner is right in contending that the 2 nd respondent

(Assistant Registrar of Co-operative Societies) had no

jurisdiction to decide any complaint regarding denial of

membership, which can be done only in terms of the provisions

contained in Section 16 of the Act.

7. Similarly, the mere fact that the Managing

Committee had taken a resolution to hold elections nearly two

months prior to the date on which the term of the present

committee would expire is no ground to hold that the

elections need not be conducted on the date selected by the

Managing Committee in terms of the resolution forwarded for

the consideration of the State Election Commission. The

judgment of this Court in Managing Committee, Thiruvalla

East Co-operative Bank Ltd. (supra), is authority for the

proposition that there is absolutely no illegality in a resolution

being adopted much earlier than the 60 days period mandated

by the provisions of Rule 35 A of the Co-operative Societies

Rules, 1969, for forwarding a resolution for holding elections

to the Managing Committee of a Society. That apart, as

already observed, I am of the view that unless the right to

membership is adjudicated in terms of the provisions

contained in Section 16(4) of the Act, it would not be proper

for the authority to withhold the conduct of elections on the

ground that there were complaints regarding denial of

membership to eligible persons. For all these reasons, this writ

petition is allowed and the following directions are issued:

(i) The petitioner-Society shall immediately take a fresh

resolution for holding elections to the Managing Committee of

the Society and forward the same for consideration of the 2 nd

respondent;

(ii) The 2nd respondent shall immediately (on receipt of

the resolution) forward the same to the 1 st respondent for the

purposes of notifying the elections. The fact that there are

complaints regarding denial of membership shall not be a

ground to refuse the holding of elections in terms of the

resolution to be passed by the Society.

(iii) Any complaints raised by the respondents 3 to 5 and

others regarding denial of membership shall be adjudicated by

the competent authority, in accordance with the law.

Sd/-

GOPINATH P.

JUDGE ats

APPENDIX OF WP(C) 22938/2023

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE APPLICATION NO. TVM/1516/2023 DATED 15-6-2023 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

Exhibit P2 TRUE COPY OF THE LETTER NO. 21/23 DATED 15-6-2023 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

Exhibit P3 TRUE COPY OF THE COMMUNICATION NO. NEYY.

1405/2023 DATED 29-5-2023 OF THE 2ND RESPONDENT.

Exhibit P4 TRUE COPY OF THE COMMUNICATION NO.

E(2)3777/2023/SCEC DATED 22-6-2023 OF THE 1ST RESPONDENT.

Exhibit P5 TRUE COPY OF THE ORDER NO. NEYY. 1531/2023 DATED 7-7-2023 OF THE 1ST RESPONDENT.

Exhibit P6 TRUE COPY OF THE ORDER NO. E(2)3777/2023/SCEC DATED 6-7-2023 OF THE 1ST RESPONDENT.

Exhibit P7 TRUE COPY OF THE JUDGMENT IN W.P(C)NO.

15779/2023 DATED 30-5-2023

RESPONDENTS' EXHIBITS

Exhibit-R3(a) A true copy of application submitted by the 3rd respondent before the Assistant Registrar of Co-operative Societies Neyyattinkara dated 11.07.2023

Exhibit-R3(b) A true copy of application of the addl.4th respondent

Exhibit-R3(c) A true copy of the communication No.1531/2023 of the Assistant Registrar of Co-operative Societies Neyyattinkara

Exhibit-3(d) A true copy of communication dated 27.06.2023 by the 2nd respondent addressed to the 1st respondent

Exhibit-R3(e) A true copy of the letter addressed to Arun.H.S an applicant dated 26.06.2023