Kerala High Court
K.K.Raju vs The State Co-Operative Election ... on 1 November, 2024
Author: N. Nagaresh
Bench: N.Nagaresh
2024:KER:81289
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 1ST DAY OF NOVEMBER 2024/10TH KARTHIKA, 1946
WP(C) NO. 37974 OF 2024
PETITIONERS:
1 K.K.RAJU,
(MEMBER NO.1115),
AGED 63 YEARS, PRESIDENT,
CHENGALAM SERVICE CO-OPERATIVE BANK LTD. CHENGALAM P.O,
KOTTAYAM,
RESIDING AT MAVELIL VETTATH HOUSE,
CHENGALAM P.O, KOTTAYAM, PIN - 686585
2 BABITHA JOSE,
(MEMBER NO.3219),
AGED 50 YEARS, CHENGALAM P.O,
KOTTAYAM, RESIDING AT KALLORATHU,
CHENGALAM P.O, KOTTAYAM, PIN - 686585
3 SAJI MOL SAJI,
(MEMBER NO.3406), AGED 50 YEARS,
KOLLAKOMBIL HOUSE, CHENGALAM P.O,
KOTTAYAM, PIN - 686585
BY ADVS.
SRI.P.N.MOHANAN
SRI.C.P.SABARI
SRI.AMRUTHA SURESH
SRI.GILROY ROZARIO
RESPONDENTS:
1 THE STATE CO-OPERATIVE ELECTION COMMISSION,
REPRESENTED BY ELECTION COMMISSIONER,
3RD FLOOR, CO-BANK TOWERS,
PALAYAM, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM, PIN - 695033
2024:KER:81289
W.P.(C) No.37974/2024
:2:
2 ELECTORAL OFFICER TO CHENGALAM SERVICE
CO-OPERATIVE BANK LTD.,
THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (G),
OFFICE OF THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES,KOTTAYAM, PIN - 686002
3 RETURNING OFFICER TO CHENGALAM SERVICE
CO-OPERATIVE BANK LTD.,
UNIT INSPECTOR, PAMBAD THE ASSISTANT REGISTRAR
OF CO-OPERATIVE SOCIETIES (G),
OFFICE OF THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES, KOTTAYAM, PIN - 686002
4 CHENGALAM SERVICE CO-OPERATIVE BANK LTD.,
REPRESENTED BY ITS SECRETARY,
CHENGALAM P.O, KOTTAYAM, PIN - 686585
*ADDL.5 ANISH THOMAS,
AGED 49 YEARS, S/O THOMAS MATHEW,
RESIDING AT CHENGALATH HOUSE,
CHENGALAM P.O., KOTTAYAM-686 585
*ADDL.6 JOSHY C. JOHN,
AGED 54 YEARS, S/O JOHN, CHEERAMKUNNEL,
CHENGALAM P.O., KOTTAYAM-686 585
*ADDL.7 SAJAN JACOB,
AGED 49 YEARS, S/O JACOB MATHEW,
KOCHAKKARA,
CHENGALAM P.O., KOTTAYAM-686 585
*(ADDITIONAL RESPONDENTS 5 TO 7 ARE IMPLEADED
AS PER ORDER DATED 01.11.2024 IN I.A.No.2 OF
2024 IN W.P.(C)NO.37974 OF 2024)
BY ADVS.
SRI.C.M.NAZAR
SRI.LIJO JOHN THAMPY
SRI.MANU SRINATH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.11.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2024:KER:81289
W.P.(C) No.37974/2024
:3:
N. NAGARESH, J.
`````````````````````````````````````````````````````````````
W.P.(C) No.37974 of 2024
`````````````````````````````````````````````````````````````
Dated this the 1st day of November, 2024
JUDGMENT
~~~~~~~~~
The 1st petitioner is the President and the 2 nd
and 3rd petitioners are members of the Chengalam Service
Co-operative Bank Limited. Election to the Managing
Committee is scheduled to be held on 17.11.2024. The
present Managing Committee assumed office on 24.11.2019.
The term of the present Committee is to expire on
23.11.2024.
2. The State Co-operative Election
Commission published Ext.P1 Election Notification dated
07.10.2024. A preliminary voters list was published on
14.10.2024. Objections to voters list were considered on
2024:KER:81289
22.10.2024. The preliminary voters list contained 2743
members. The final voters list was published removing 230
members.
3. The reason advanced by the Electoral
Officer for removing 230 members from the voters list is that
those members are outside the area of operation of the Bank
and that the Secretary has reported so in their membership
applications. The petitioners state that the Secretary is not
competent to write a report in the applications for
membership. The applications for membership are
considered by the Managing Committee and approval is
given by the Managing Committee. The Secretary cannot
have any say in the matter.
4. The petitioners argue that as per Rule 16 of
the Kerala Co-operative Societies Rules, 1969, an application
for membership has to be submitted in the Form prepared by
the Bank as provided in Rule 16(1)(a). In that Form, there is
no provision for recommendation of membership by the
2024:KER:81289
Secretary. For grant of membership, only a decision of the
Committee is important.
5. According to Rule 16(2)(b), no person shall
be eligible for admission as a member of a Co-operative
Society, if he is not resident of or does not own or possess
land within the area of operation of the Society. The report of
the Secretary is that he has no knowledge of the landed
property of the members.
6. The petitioners submit that out of the 230
members removed from the voters list, 52 applications do not
have even adverse report of the Secretary. But, those 52
members are also removed from the voters list. The Hon'ble
Apex Court in Joint Registrar of Co-operative Societies v.
T.A. Kuttappan and others [2000 KHC 389] has held that
admission of the members is power of the Managing
Committee. In the judgment in Vijayakumar v. Joint
Registrar [1996 (1) KLT 285], this Court has held that the
Returning Officer has power to make an enquiry regarding
2024:KER:81289
the eligibility of the voter to be included in the voters list, if the
objections are definite and specific.
7. The petitioners state that no notice was
issued to the 230 members before they were excluded from
voters list and denied voting right. The removed members
were enrolled for the last 15 years. The removal of 230
members is illegal and arbitrary.
8. I have heard the learned counsel for the
petitioners, the learned Standing Counsel representing the 1 st
respondent-State Co-operative Election Commission and
learned counsel appearing for the additional respondents 5
to 7.
9. The grievance of the petitioners is regarding
removal of 230 members from the final voters list. As per
Ext.P1 Election Notification, the preliminary voters list was
published on 14.10.2024. Certain members including
additional respondents 5 to 7 raised objections on inclusion
of certain members in the voters list. The objections were
2024:KER:81289
considered and names of 230 members were removed from
the final voters list. The removal was made on the basis of
Rule 16(2) of the Kerala Co-operative Societies Rules, 1969.
10. Rule 16(2) of the Kerala Co-operative
Societies Rules reads as follows:
16(2). No person shall be eligible for admission
as a member of a Society, if he,-
(a) has not attained the age of 18 years;
(b) is not a resident of or does not own or
possess land within area of operation of the society,
provided that this clause shall apply in the case of a
society formed exclusively for the students of any
School or College;
(c) has applied to be adjudicated as an
insolvent or is an undischarged insolvent:
(d) has been sentenced for any offence,
other than an offence political character or an
offence not involving moral turpitude a period of five
years has not elapsed from the date of expiry of the
sentence; or
(e) is a paid employee of the Society or of
its financing Bank or any society for which it is the
financing Bank, provided that restriction shall not
apply to Co-operative Motor Transport Societies,
Co-operative Workshops, Societies for the
employees of Financing Banks, and Societies
formed for benefit of actual workers;
2024:KER:81289
(f) has been surcharged under S.68 and a
period of 3 years has elapsed since the payment of
money or restoration of property directed in the said
order of surcharge.
(g) xxx
(h) has been expelled under sub-section
(1) of Section 17 and a period of one year has not
elapsed from the date of such expulsion.
As per Rules, only those persons who are either residents of
or who own or possess land within the area of operation of
the Society are eligible for admission as members of a Co-
operative Society.
11. The Electoral Officer made a summary
enquiry and found that 230 members listed in Ext.P8 do not
satisfy requirements of Rule 16(2). Consequently, their
names were not included in the final voters list. The
petitioners in the writ petition would challenge the removal of
230 members. The main reason for challenge is that the
Electoral Officer has taken the decision to remove them from
the final voters list merely for the reason that the Secretary
had written certain remarks in their application forms.
2024:KER:81289
According to the petitioners, the Secretary has no business to
make any endorsement in the membership application forms
and that the decision of the Managing Committee to grant
membership is final.
12. While finalising the voters list by the
Electoral Officer, a detailed confronted enquiry granting
opportunity of hearing to the affected parties is not
contemplated. Such enquiry by Electoral Officer can only be
a summary enquiry. If any person having any grievance in
that regard, they will have to resort to alternate remedy
available under the Act, 1969.
13. Section 69 provides that notwithstanding
anything contained in any law for the time being in force, if a
dispute arises in connection with the election of the Board of
Management, such dispute shall be entertained by the Co-
operative Arbitration Court. Preparation of electoral roll is
part of election process and if there is any breach of rule in
preparing the electoral roll, the same can be called in
2024:KER:81289
question after the declaration of result of the election.
14. The Hon'ble Apex Court has held in the
judgment in Shaji K. Joseph v. Viswanath [(2016) 4 SCC
429] that whenever process of election starts, normally,
courts should not interfere with the process of election for the
simple reason that if the process of election is interfered with
by courts, possibly no election would be completed without
court's order and that all disputes of election should be dealt
with only after completion of election.
15. In view of the settled principles of law, no
interference can be made with Ext.P2 proceedings of the
Electoral Officer at this stage. At the same time, since 230
members are removed from out of the 2743 members
included in the preliminary voters list, I am of the view that an
arrangement should be made permitting such excluded
voters from casting their vote in a separate ballot box, so that
any dispute regarding such exclusion can be effectively
settled if an election petition is filed after declaration of
2024:KER:81289
results.
The writ petition is accordingly disposed of
declining the reliefs sought for by the petitioners, and at the
same time directing respondents 2 and 3 to permit the 230
members excluded from the final voters list as per Ext.P2 to
cast their votes in a separate ballot box. Those ballots need
not be counted for declaration of results. The afore direction
is given only to meet the ends of justice if election disputes
are raised in this regard after the election.
Sd/-
N. NAGARESH, JUDGE
aks/01.11.2024
2024:KER:81289
APPENDIX OF WP(C) 37974/2024
PETITIONERS' EXHIBITS:
Exhibit P1 TRUE COPY OF THE ELECTION NOTIFICATION
DATED 07.10.2024 ISSUED BY THE
ELECTION COMMISSION
Exhibit P2 TRUE COPY OF THE ORDER DATED
23.10.2024 OF THE PETITIONER BANK
Exhibit P3 TRUE COPY OF THE APPLICATION PROVIDED
BY THE BANK
Exhibit P4 TRUE COPIES OF THE MEMBERSHIP
APPLICATIONS OF 100 MEMBERS IN WHICH
THE SECRETARY MADE ENDORSEMENT SINCE
APPROVAL OF THE APPLICATION BY THE
COMMITTEE
Exhibit P5 TRUE COPIES OF THE 52 MEMBERSHIP
APPLICATIONS
Exhibit P6 TRUE COPY OF THE JUDGMENT OF JOINT
REGISTRAR VS. T.A.KUTTAPPAN REPORTED
IN 2000 (2) KLT 480
Exhibit P7 TRUE COPY OF THE JUDGMENT IN VIJAYA
KUMAR V. JOINT REGISTRAR REPORTED IN
1996 (1) KLT 285
Exhibit P8 TRUE COPY OF THE LIST OF VOTERS
REMOVED FROM THE VOTERS LIST CONTAINED
IN EXT.P2.
RESPONDENTS' EXHIBITS:
Exhibit R5(a) A TRUE COPY OF THE OBJECTION DATED
21.10.2024 FILED BY THE APPLICANTS
BEFORE THE 2ND RESPONDENT
Exhibit R5(b) A TRUE COPY OF THE RELEVANT PAGES OF
THE BYLAWS OF THE 4TH RESPONDENT BANK.
2024:KER:81289
Exhibit R5(c) A TRUE COPY OF THE RELEVANT EXTRACT OF
(MADUKKAKKUNNU), ELIKKULAM GRAMA
PANCHAYATH, KOTTAYAM DISTRICT.
