Sooraj C.S vs State Cooperative Election ...
2023 Latest Caselaw 10718 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
            THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
                                 &
            THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
    THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945
                        WA NO. 1831 OF 2023
   AGAINST THE ORDER/JUDGMENT WP(C) 33555/2023 OF HIGH COURT OF
                              KERALA
APPELLANT/PETITIONER:

          SOORAJ C.S
          AGED 34 YEARS
          S/O SUDHAKARAN, CHECHERI HOUSE, GURUVAYOOR,
          GURUVAYOOR PO, THIRSSUR DISTRICT, PIN - 680101
          BY ADVS.
          SAJI VARGHESE KAKKATTUMATTATHIL
          AMMU M.
          AMALENDU A.
RESPONDENTS/RESPONDENTS/ADDL. RESPONDENTS:

    1     STATE COOPERATIVE ELECTION COMMISSION (SCEC)
          3RD FLOOR, CO-OPERATIVE BANK TOWERS, VIKAS BHAVAN,
          THIRUVANANTHAPURAM, PIN - 695033
    2     THE REGISTRAR OF COOPERATIVE SOCIETIES
          DEPARTMENT OF COOPERATIVE OFFICE,
          JAWAHAR COOPERATIVE BHAVAN, DP I JUNCTION,
          THYCADU, THIRUVANANTHAPURAM, PIN - 695014
    3     JOINT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL)
          THRISSUR, OFFICE OF THE JOINT REGISTRAR,
          THRISSUR, PIN - 680003
    4     ASSISTANT REGISTRAR (GENERAL)
          COOPERATIVE SOCIETIES DEPARTMENT, CHAVAKKADU,
          THRISSUR DISTRICT, PIN - 680506
    5     THE RETURNING OFFICER
          MULLASSERYUNIT, CHAVAKKAD, INSPECTOR OF MULLASSERY UNIT
          CHAVAKKAD, THRISSUR DISTRICT, PIN - 680506
    6     CHAVAKKAD FARKA COOPERATIVE RURAL BANK LTD
          NO: F 1250, CHAVAKKAD PO, THRISSUR,
          REPRESENTED BY ITS SECRETARY, PIN - 680506
    7     SAYTH MOHAMMED
          S/O KUNJU, KUNNATH HOUSE, BEACH ROAD, CHAVAKKAD PO,
          THRISSUR, PIN - 680506
 WA NO.1831 OF 2023

                                  2

     8      MR.CA.PRATHAPAN ALIAS GOPAPRATHAPAN
            S/O APPU, CHOZHEEDAKATHU HOUSE, THIRUVATHRA P.O,
            THRISSUR DISTRICT, PIN - 680516
     9      MR. P.V. BADARUDEEN
            S/O MUHAMMED, PANICKA VEETTIL HOUSE, GURUVAYOOR PO,
            THRISSUR ., PIN - 680101
     10     MR. PRASHANTH C.P
            S/O PRABHU, CHAKKARA HOUSE, IRATTAPUZHA, BLANGADU PO,
            THRISSUR, PIN - 680506
     11     MR, P.K.ABOBACKER
            S/O MOIDU, PUTHANPURYILKALEERAKATHU HOUSE,
            THOTTAPPU,MARADU PO,THRISSUR, PIN - 680512
     12     MR. M ABDUL SALAM
            S/O HUSSAIN MUSALIYAR, MUSALIYAR, MANZIL HOUSE,
            POOVATHUR, P.O, THRISSUR, PIN - 680508
     13     ADDL.R13 P.K.MOHANAN,
            AGED 68 YEARS, S/O KRISHNAN, POOKOTTIL HOUSE,
            POOKODE VILLAGE, DESAM, CHAVAKKAD TALUK,
            THRISSUR DISTRICT, PIN - 680505
     14     ADDL.R14 SANOOP T.S.,
            AGED 31 YEARS, S/O SHEKARAN T.K., THAMARATH HOUSE,
            MANATHALA VILLAGE, DESAM, CHAVAKKAD TALUK,
            THRISSUR DISTRICT, PIN - 680506
     15     ADDL.R15 SHAJI.T.A.,
            AGED 55 YEARS, S/O APPU, THAZISSERY HOUSE,
            POOKODE VILLAGE, THAMARAYUR DESAM, CHAVAKKAD TALUK,
            THRISSUR DISTRICT, PIN - 680505
     16     ADDL.R16 P.K.RAJESH BABU,
            AGED 49 YEARS, S/O BASKARAN NAIR, ANJANAM,
            GURUVAYUR VILLAGE, DESAM, CHAVAKKAD TALUK,
            THRISSUR DISTRICT, PIN - 680101
     17     ADDL.R17 ASHARAF V B.,
            AGED 49 YEARS, S/O BAVA, VELIYAMKODE HOUSE,
            MANATHALA VILLAGE, DESAM, CHAVAKKAD TALUK,
            THRISSUR DISTRICT, PIN - 680506
     18     ADDL.R18 R.K.NOUSHAD,
            AGED 53 YEARS, S/O ABDUL KADHAR,
            RAYAM MARAKKAR VEETIL HOUSE, VIA MADRASSA,
            MANATHALA VILLAGE, THEKKENCHERY DESAM, CHAVAKKAD TALUK,
            THRISSUR DISTRICT, PIN - 680506
     19     ADDL.R19 RAMYA K.,
            AGED 37 YEARS, W/O A.VIJAYAKUMAR, AKAMBADI HOUSE,
            GURUVAYUR VILLAGE, THIRUVENKIDOM DESAM, CHAVAKKAD
            TALUK, THRISSUR DISTRICT, PIN - 680101
 WA NO.1831 OF 2023

                                  3

     20     ADDL.R20 P.A. NAZAR,
            AGED 49 YEARS, S/O ALU., PANDARI HOUSE,
            KADAPPURAM VILLAGE, DESAM, CHAVAKKAD TALUK,
            THRISSUR DISTRICT, PIN - 680506
     21     ADDL.R21 JOUHARATH ASHKAR,
            AGED 37 YEARS, W/O ASHKAR, ARAKKAL HOUSE,
            PUNNAYURKULAM VILLAGE, CHAMMANOOR DESAM, CHAVAKKAD
            TALUK, THRISSUR DISTRICT, PIN - 679561
     22     ADDL.R22 FABINA NOUSHAD,
            AGED 35 YEARS, W/O NOUSHAD., PUTHUVEETTIL HOUSE,
            MANATHALA VILLAGE, PUNNA DESAM, CHAVAKKAD TALUK,
            THRISSUR DISTRICT, PIN - 680506

            [ADDL.R13 TO R22 ARE IMPLEADED AS PER ORDER DATED
            16.10.2023 IN I.A-1/2023 IN WP(C) 33555/2023]
            SRI.ARJUN
     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.10.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA NO.1831 OF 2023

                                       4


                                JUDGMENT

Dated this the 19th day of October, 2023

Anu Sivaraman, J.

This writ appeal is preferred against the judgment of the learned

Single Judge refusing to interfere with the rejection of an objection

raised to the nomination filed by respondents 7 to 12 for contesting in

the election to the Managing Committee of the 6 th respondent-Society.

It is the contention of the learned counsel for the appellant that

respondents 7 to 12 are facing surcharge proceedings and are therefore

disqualified for contesting the election in terms of Rule 44(1)(l) of the

Kerala Co-operative Societies Rules (hereinafter referred as 'the

Rules').

2. The learned Single Judge held that an order of surcharge has not

been passed against respondents 7 to 12 and that therefore the objection

raised in terms of Rule 44(1)(l) of the Rules is not sustainable.

3. The learned counsel for the appellant contends that, in view of the

fact that there is a finding to the effect that respondents 7 to 12 have

misappropriated amounts from the Society and since they are facing WA NO.1831 OF 2023

proceedings for surcharge, they should not be permitted to participate

in the election process. It is further contended that the official

respondents are hand in glove with respondents 7 to 12 and that

therefore, proceedings are not being finalized.

4. We notice that Section 68(1) of the Kerala Co-operative Societies

Act (hereinafter referred as 'the Act') provides that in case, in the

course of an audit, inquiry, inspection or the winding up of a society, it

is found that any person entrusted with the organization or management

of society or who is or has been an officer or employee of the society,

has made any payment contrary to the Act and the rules or the bye-

laws, or has caused any loss or damage in the assets of the society by

breach of trust, or willful negligence or mismanagement or has

misappropriated or fraudulently retained any money or other property

belonging to such society or has caused the destruction of the records,

the Registrar may, of his own motion, cause an enquiry into the conduct

of such person. It is provided under Section 68(2) of the Act that, after

the inquiry under sub-section (1), the Registrar is empowered, after

giving the person concerned an opportunity of being heard, to require WA NO.1831 OF 2023

the person concerned to restore the money or the property or to pay

contribution and costs or compensation as the Registrar may consider

just and equitable. It is therefore clear that it is after a notice under

Section 68(2) of the Act is issued to the person concerned and after

considering the objections of such person that an order of surcharge can

be passed against a person under Section 68(2) of the Act. Until such an

order is passed under Section 68(2) of the Act, a person cannot be said

to be surcharged so as to incur the disqualification as provided in Rule

44(1)(l) of the Rules.

In the above view of the matter, we are of the opinion that the

judgment of the learned Single Judge does not suffer from any

illegality so as to require interference in this intra court appeal. The

appeal thus fails and the same is, accordingly, dismissed.

Sd/-

ANU SIVARAMAN, JUDGE Sd/-

C. JAYACHANDRAN, JUDGE NP WA NO.1831 OF 2023

APPENDIX OF WA 1831/2023

PETITIONER'S ANNEXURES Annexure 1 IMPLEADING PETITION FILED BY RESPONDENTS 13 TO 22 IMPLEADING THEMSELVES AS ADDITIONAL RESPONDENTS RESPONDENTS' ANNEXURES: NIL