Michael Poulose vs The Registrar Of Co-Operative ...
2024 Latest Caselaw 4449 Ker

Kerala High Court

Michael Poulose vs The Registrar Of Co-Operative ... on 6 February, 2024

Author: V Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
    TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
                     WP(C) NO. 3451 OF 2024


PETITIONERS:

1 MICHAEL POULOSE
  AGED 68 YEARS
  S/O. MICHAEL, RESIDING AT THANIKKAMPARAMBIL,
  NEELEESWARAM, MALAYATTOOR, ERNAKULAM, PIN -
  683574

2 M.O. AUGUSTINE
  AGED 70 YEARS
  S/O. OUSEPH, MANIKKATHAN, NEELEESWARAM,
  MALAYATTOOR, ERNAKULAM, PIN - 683574

3 MARY PAAPU
  AGED 68 YEARS
  W/O. PAAPU, MALIYEKKAL, NEELEESWARAM,
  MALAYATTOOR, ERNAKULAM, PIN - 683574

4 MARY PAPPACHAN
  AGED 68 YEARS
  W/O. PAPPACHAN, MOOLAN, NEELEESWARAM,
  MALAYATTOOR, ERNAKULAM, PIN - 683574

5 C.P. PAPPACHAN
  AGED 70 YEARS
  S/O. PAAPU, CHIRAYATH, NEELEESWARAM,
  MALAYATTOOR, ERNAKULAM, PIN - 683574

  BY ADVS.
  R.SUDHISH
  M.MANJU
  MITHUN P.
  MERIN THOMAS
 W.P.(C).3451/2024             2




RESPONDENTS:

1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES
  JAWAHAR SAHAKARANA BHAVAN, THYCAUD P.O.,
  THIRUVANANTHAPURAM, PIN - 695014

2 KERALA STATE CO-OPERATIVE ELECTION COMMISSIONER
  OFFICE OF THE KERALA STATE CO-OPERATIVE ELECTION
  COMMISSION, JANAHITHAM, VIKAS BHAVAN P.O.,
  THIRUVANANTHAPURAM, PIN - 695003

3 THE ELECTORAL OFFICER (SENIOR SUPERINTENDENT,
  ERNAKULAM DISTRICT KHADI VILLAGE INDUSTRIES
  OFFICE)
  ELECTION TO THE BOARD OF DIRECTORS OF
  NEELEESWARAM TILES AND VILLAGE INDUSTRIES
  CO-OPERATIVE SOCIETY LIMITED, NEELEESWARAM,
  MALAYATTOOR, ERNAKULAM, PIN - 683574

4 THE RETURNING OFFICER (SENIOR CO-OPERATIVE
  INSPECTOR, ERNAKULAM DISTRICT KHADI VILLAGE
  INDUSTRIES OFFICE)
  ELECTION TO THE BOARD OF DIRECTORS OF
  NEELEESWARAM TILES AND VILLAGE INDUSTRIES
  CO-OPERATIVE SOCIETY LIMITED, NEELEESWARAM,
  MALAYATTOOR, ERNAKULAM, PIN - 683574

5 NEELEESWARAM TILES AND VILLAGE INDUSTRIES
  CO-OPERATIVE SOCIETY LIMITED NO. KVIND(E) 1
  NEELEESWARAM, MALAYATTOOR, ERNAKULAM,
  REPRESENTED BY ITS CONVENER, PIN - 683574

   BY ADVS.
   M.PAUL VARGHESE(K/151/1990)
   K.V.SANOSH(K/144/2012)
   ANJANA SUGUNAN(K/003577/2022)
 W.P.(C).3451/2024              3




   SRI. M M MONAYE, SC FOR NEELESWARAM TILE & VILLAGE
   INDUSTRIES CO-OPERATIVE SOCIETY.,

   SRI. C M NAZAR, SC FOR STATE CO-OPERATIVE ELECTION
   COMMISSION.



   THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
 06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C).3451/2024                        4




                                     JUDGMENT

The petitioners contend that they are members of the Neeleeswaram

Tiles and Village Industries Co-operative Society Limited. They have

approached this Court seeking to quash Ext.P8 final voters list published by the

third respondent for the election to the Managing Committee of the 5th

respondent society scheduled to be held on 13.02.2024.

2. The 5th respondent is an Industrial Society registered under the

Kerala Co-operative Societies Act, 1969 (for the sake of brevity, 'the Act, 1969').

Until 1992, the Society was managed by an elected administrative Committee.

Since then, for over three decades, the Administrator and Administrative

Committee have been in charge of the functioning of the society. Reliance is

placed on Ext.P2 and it is contended that before the administrator took charge

of the management of the society in the year 1992, there were 301 members.

3. It is contended that the election to the committee is scheduled to

be held on 13.2.2024. The voter's list published by the Electoral Officer shows

that there are 608 members. The petitioner promptly objected, and it was

pointed out that there were only 301 legitimate members in the year 1992, and

therefore, the members in excess shown on the list were certainly enrolled by

the Administrative Committee, which action is illegal in view of Section 33(2) of

the Kerala Cooperative Societies Act. The petitioner asserts that Serial Nos. 3 to

7, 9 to 62, 65 to 117, 119 to 175, 177 to 200, 202 to 223, 225 to 244, 248 and

249, 251 and 252, 254 and 255, 256 to 259, 264 and 265, 267 to 277, 279 to

281, 283, 290 to 299 and 301 in Ext.P2 list of members are not seen in the

draft voters list or in the final voters list. It is also contented that 263 members

in Ext.P2 members list were not in the draft voters list and they have not been

included in the final voters list. It was also pointed out that the omission to

include the name of the 1st petitioner in the voter's list is illegal as his name

finds a place in Exhibit P2. However, his objection was rejected by the electoral

officer by Exhibit P7 order.

4. It is on these assertions that this writ petition is filed seeking the

following reliefs:-

I. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P8 final voters list published by the 3rd respondent for the election for the Managing Committee of the 5th respondent Society.

ii. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P1 election notification. iii. Issue a writ of certiorari or any other appropriate writ, order or

direction quashing Exhibit P6 and P7, the rejection orders of the 3rd respondent Electoral Officer.

iv. Issue a declaration declaring that the members enrolled by the Administrator and subsequent Administrative Committee are not eligible to cast a vote for the election for the Managing Committee of the 5th respondent Society.

v. Issue a declaration declaring that the newly enrolled members by the Administrator and subsequent Administrative Committee are not entitled to stand as a candidate in the upcoming election for the Managing Committee of the 5th respondent Society.

5. A counter affidavit has been filed by the fifth respondent. It is

contended that preparation of the voters' list is part of the election process, and

as the process has commenced and if the petitioner is in any way aggrieved, it

is for him to challenge the election by filing a validly instituted election petition.

It is contended that Exhibit P2, placed on record by the petitioner to

substantiate that there are only 301 members in the Society, is incorrect. The

5th respondent has placed on record Ext.R5(a) Audit Report for the year

1992-93 to substantiate that the Society had 608 members in the year 1992.

The 5th respondent has emphatically denied that the Administrative Committee

has enrolled new members. It is further stated that the list produced by the

petitioners as Ext.P2 to substantiate that there are only 301 members in the

society is a bogus document.

6. I have heard Sri. R. Sudhish, the learned counsel appearing for the

petitioners, Sri. M.M. Monaye, the learned counsel appearing for the fifth

respondent and Sri. C.M. Nazar the learned Standing Counsel appearing for the

State Co-operative Election Commission.

7. I have gone through the records made available before this Court.

8. The petitioners have built their entire case around Exhibit P2. Their

contention is that Exhibit P2 is the list of members of the Society immediately

before the Administrator/Administrative Committee took charge. By

emphasizing Exhibit P2, it is contended that the 608 members now shown in

the voters' list, over and above 301, were added by an authority with no

competence to admit new members.

9. The 5th respondent in their counter has pointed out that Exhibit P2

is a bogus document. The 5th respondent has also placed on record a copy of

the Audit certificate for the period 1992-1993, which discloses that the Society

has a membership of 608 members. I find that Exhibit R5(a) Audit certificate is

signed by the competent authority, and the same is a statutory document

maintained under law. On the other hand, Exhibit P2 cannot be said to be an

authentic document. In view of Exhibit R5(a), the contention of the petitioner

that there were only 301 members in the year 1992 and the rest were added

by the Administrative Committee cannot be accepted.

10. Furthermore, the Apex Court in Shri Sant Sadguru Janardan

Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and

Another v. State of Maharashtra and Others [2001 (8) SCC 509] in

unmistakable terms, has held that the High Court should not stay the

continuation of the election process even though there may be some alleged

illegality or breach of rules while preparing the electoral roll. It was held as

follows in para 12 of the judgment.

12. In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate, if aggrieved, by means of an election petition before the Election Tribunal.

11. A similar view was taken by this Court in Ajitha Kumari and

Others v. Priyadarsini Vanitha Coir Vyavasaya Co-operative Society

(CVCS) Ltd., Cherthala and Others [2018 (3) KLT 727].

12. In that view of the matter, I do not think that any interference is

called for.

This writ petition is dismissed.

SD/-

RAJA VIJAYARAGHAVAN V, JUDGE DCS

APPENDIX OF WP(C) 3451/2024

PETITIONER EXHIBITS

Exhibit P1 COPY OF THE ELECTION NOTIFICATION TO THE BOARD OF DIRECTORS PUBLISHED IN THE MALAYALA MANORAMA DAILY DATED 8.1.2024

Exhibit P2 COPY OF THE LIST OF 301 MEMBERS OF 5TH RESPONDENT SOCIETY BEFORE THE ADMINISTRATOR TAKING MANAGEMENT OF THE SOCIETY (WITH LEGIBLE COPY)

Exhibit P3 COPY OF THE NOTICE CIRCULATED BY THE ELECTORAL OFFICER DATED 9.1.2024

Exhibit P4 COPY OF THE OBJECTION FILED BY THE PETITIONER AND OTHER 27 MEMBERS

Exhibit P5 COPY OF THE OBJECTION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT ELECTORAL OFFICER DATED 12.1.2024

Exhibit P6 COPY OF THE DECISION TAKEN BY THE 3RD RESPONDENT DATED 18.1.2024 REJECTING EXHIBIT P4 OBJECTION AND ISSUED LETTER TO JOSEPH PAUL, THE 9TH SIGNATORY IN THE EXHIBIT P4 OBJECTION

Exhibit P7 COPY OF THE DECISION TAKEN BY THE 3RD RESPONDENT REJECTING EXHIBIT-P5 DATED 18.1.2024 ISSUED TO THE 1ST PETITIONER

Exhibit P8 COPY OF THE FINAL VOTERS LIST PUBLISHED BY THE 3RD RESPONDENT DATED 19.1.2024

RESPONDENT EXHIBITS

Exhibit R5(a) True copy of the Relevant pages of Audit Report1992-93 dated 30.11.1994