Kerala High Court
T.M. Nazeer vs Kerala State Co-Operative Election ... on 3 October, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
2024:KER:73311
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
WP(C) NO. 33538 OF 2024
PETITIONERS:
1 T.M. NAZEER,
AGED 50 YEARS,
S/O MUSTHAFA,
THURUTHUMMAL HOUSE,
PERUMBAVOOR, PIN - 683543
2 REETHA AUNTO,
AGED 45 YEARS,
W/O PULIKKAL HOUSE, VALLOM,
PERUMBAVOOR, PIN - 683543
BY ADVS.
SRI.M.M.MONAYE
SRI.M.PAUL VARGHESE
SRI.K.V.SANOSH
SMT.ANJANA SUGUNAN
RESPONDENTS:
1 KERALA STATE CO-OPERATIVE ELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY,
CO-BANK TOWERS,
THIRUVANANTHAPURAM, PIN - 695001
2 ELECTORAL OFFICER,
THE PERUMBAVOOR SERVICE COOPERATIVE SOCIETY LTD.
NO.E 802,
ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL),
KUNNATHUNADU,
PERUMBAVOOR, PIN - 683542
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W.P.(C) No.33538/2024
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3 THE RETURNING OFFICER,
THE PERUMBAVOOR SERVICE COOPERATIVE SOCIETY
LTD. NO.E-802, VALLAM,
RAYONPURAM,
PERUMBAVOOR, PIN - 683543
4 THE PERUMBAVOOR SERVICE COOPERATIVE SOCIETY
LTD. E-802,
REPRESENTED BY ITS SECRETARYVALLAM,
RAYONPURAM,
PERUMBAVOOR, PIN - 683543
BY ADVS.
SMT.NISHA GEORGE
SRI.GEORGE POONTHOTTAM (SR.)(K/000570/1979)
SRI.ANSHIN K.K(K/1249/2021)
SRI.C.M.NAZAR, SC
SMT.SHEEJA C.S., SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.10.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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W.P.(C) No.33538/2024
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N. NAGARESH, J.
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W.P.(C) No.33538 of 2024
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Dated this the 3rd day of October, 2024
JUDGMENT
~~~~~~~~~
The two petitioners in the writ petition are
members of the 4th respondent-Society. They are before this
Court aggrieved by the final voters list published pursuant to
Ext.P3 Election Notification. The name of the petitioners do
not find place in Ext.P5. The petitioners state that as many
as 3242 members have been excluded from the final voters
list.
2. The petitioners state that the 4 th respondent
is a Primary Agricultural Credit Society. Ext.P3 Election
Notification dated 30.08.2024 was published for conducting
election to the Managing Committee of the Society. The
voting is scheduled to be held on 06.10.2024. The petitioners
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state that in the previous election to the Managing
Committee, 8585 members were included in the final voters
list. This time, 3242 members were excluded in the
preliminary voters list. The preliminary voters list was not
published on 04.09.2024 as claimed. Some of the members
obtained voters list remitting fees.
3. The petitioners state that it is the essence of
the election that proper electoral roll should be maintained.
After preparation of the electoral roll, opportunity should be
given to the parties concerned to scrutinise whether all
members are included in the voters list. The illegal exclusion
of 3242 persons is intended to garner majority in the
forthcoming election.
4. The petitioners state that as per Section 17
of the Kerala Co-operative Societies Act, 1969, existing
members of a Society may be expelled upon a resolution of
the General Body passed at a special meeting by 2/3 rd
majority of the members present in the meeting. Rule 16(3)
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stipulates that where a person admitted to membership, if
subsequently becomes ineligible for membership, the
Committee of the Society may remove the person from
membership after giving him an opportunity for making his
representation. The petitioners and other members were not
served with any notices with regard to their removal or any
other eligibility. The petitioners state that Section 19(2) of the
Kerala Co-operative Societies Act mandates that even if the
General Body of the Society has decided to enhance the
share value, the right of a member to continue in membership
will remain for a period of five years from the date of
enhancement of value of shares. There is violation of Rule
35A(4) of the Kerala Co-operative Societies Rules.
5. The petitioners further argued that as per
Section 29(1)(b) along with Election Notification, the
Managing Committee should issue notice of General Body
notice also, which has not been done. A notice of General
Body meeting should be issued either by votes or by getting
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signatures of members in the book maintained for that
purpose or by publishing in two daily newspapers. It has not
been done. Furthermore, the Electoral Officer / Returning
Officer has not published voters list. The voters list is seen
published by the Secretary of the Society. The respondents
have included certain members who have paid enhanced
share value after 30.06.2024 and before 06.08.2024. This is
highly illegal.
6. Relying on the judgment of this Court in
Mohanachandran Nair B. and another v. State Co-
operative Election Commission and others [2013 (3) KHC
473], the petitioners argued that if circumstances are such
that a free and fair election cannot be conducted, Election
Commission can interfere with the matter and postpone the
election. As 3242 members out of the total membership of
8585 are illegally excluded from the voters list, the election
proposed to be held on 06.10.2024 is liable to be deferred,
urged the counsel for the petitioners.
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7. The 4th respondent-Society resisted the writ
petition filing counter affidavit. The 4th respondent stated that
the General Body of the Society decided to amend Clause 17
of the bye-laws by enhancing share value of A Class
members from ₹25/- to ₹100/-. The amendment was
approved by the Joint Registrar as per Ext.R4(a) Registration
Certificate. After receiving Certificate of Registration, the
Managing Committee convened on 10.03.2023 decided to
publish a notice in Mathrubhumi, requiring the members of
the Society to remit the enhanced share value within one
year. The publication in Mathrubhumi was made on
10.03.2023.
8. Pursuant to Ext.R4(c) paper publication,
5343 members have remitted the enhanced share value
within the prescribed time. The period fixed for remittance of
enhanced share value was from 31.03.2023 to 31.03.2024.
The Managing Committee meeting convened on 28.03.2024
decided that those who did not remit the enhanced share
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value within the prescribed time limit have lost the right from
being a member of the Society from 01.04.2024 onwards.
9. However, the members were permitted to
remit the enhanced share value after 01.04.2024 till
06.08.2024. The 1st respondent-Election Commission issued
Ext.P3 Notification scheduling the election on 06.10.2024.
The Secretary of the Society prepared list of eligible members
having voting rights and submitted to the Electoral Officer.
The members who remitted the enhanced share value till
06.08.2024 were included in the voters list. Members were
given opportunity to scrutinise the preliminary voters list. The
petitioners did not prefer any objection regarding preliminary
voters list within the time prescribed.
10. Six individuals had submitted objections to
the preliminary voters list. The Electoral Officer scrutinised
the objections and rejected the same. Subsequently, the final
voters list was published on 18.09.2024.
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11. The 4th respondent pointed out that in view
of the precedents set by the Hon'ble Apex Court, once the
election process is commenced, the same shall not be
interfered with. Preparation of electoral roll is an intermediate
stage in the process of election. The writ petition is therefore
liable to be dismissed.
12. Standing Counsel entered appearance on
behalf of the 1st respondent-Election Commission. The 1st
respondent submitted that Ext.P3 Election Notification was
published scheduling polling on 06.10.2024 on the request
made by the Society. The 2nd respondent was appointed as
Electoral Officer and the 3rd respondent was appointed as the
Returning Officer for the purpose of conducting election. All
statutory requirements mandated by the Kerala Co-operative
Societies Act, 1969 and the Kerala Co-operative Societies
Rules, 1969 have been adhered to. Objections against the
preliminary voters list were duly considered. The petitioners
did not submit objection to the preliminary voters list. In the
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facts of the case, the writ petition is only to be dismissed.
13. I have heard the learned counsel for the
petitioners, the learned Standing Counsel appearing for
respondents 1 to 3 and the learned Standing Counsel
representing the 4th respondent.
14. The grievance of the petitioners is regarding
exclusion of 3242 members from the preliminary and final
voters list. The petitioners would state that these 3242
members were included in the final voters list during the last
election. It is evident from Exts.R4(a) and R4(b) that the
Society had decided to enhance its share value from ₹25/- to
₹100/-. The amendment to the bye-laws were approved by
the Joint Registrar of Co-operative Societies and Ext.R4(a)
Registration Certificate of amendment dated 27.02.2023 was
issued. On 10.03.2023, the Managing Committee of the
Society convened a meeting and decided to publish a notice
in Mathrubhumi Daily requiring the members of the Bank to
remit the enhanced share value within one year. Accordingly,
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Ext.R4(c) notice dated 30.03.2023 was published in
Mathrubhumi Newspaper dated 31.03.2023.
15. The time fixed for remittance of enhanced
share value was from 31.03.2023 to 31.03.2024. The
Managing Committee meeting held on 28.03.2024 decided
that those who did not remit the enhanced share value within
the prescribed time limit has lost the right for being members
of the Society from 01.04.2024 onwards. It is not disputed
that the petitioners did not remit the enhanced share value
before 31.03.2024. All members who paid the enhanced
share value on or before 31.03.2024 were included in the
voters list.
16. The petitioners would urge that though the
decision of the Managing Committee was to permit members
to pay the enhanced share value only upto 31.03.2024, the
respondents have permitted certain members to remit
enhanced share value even after 01.04.2024 till 06.08.2024
illegally. In this regard, it is to be noted that the Kerala Co-
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operative Societies Act, 1969 was amended in the year 2024.
Due to the said amendment, even where share value is
enhanced, members of the Society would continue to be valid
members for a period of five years. It was in such
circumstances that those who paid enhanced share value till
06.08.2024 were included in the voters list. I do not find any
illegality in the same.
17. The petitioners would submit that there was
no service of notice. After receiving Certificate of Registration
of amended bye-law, the Managing Committee of the Society
met on 10.03.2023 and decided to publish a notice in
Mathrubhumi Newspaper requiring the members to remit the
enhanced share value within one year. Ext.R4(c) is the
publication in the Newspaper. Therefore, the petitioners
cannot be heard to contend that there was no paper
publication. As regards the Election Notification, the voters
list was duly published. The contention of the petitioners is
that the voters list was signed and published by the Secretary
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and not by the Electoral Officer. The voters list relied on by
the petitioners to so contend, is a voters list issued to
members of the Society by the Secretary on payment of
prescribed fee. Statutory publication of voters list was made
by the Electoral Officer. The petitioners have not filed any
objection to the preliminary voters list.
In the afore facts and circumstances of the
case, I find no merit in the writ petition warranting interference
under Article 226 of the Constitution of India at this stage.
The writ petition is therefore dismissed. The petitioners will,
however, be free to challenge the election invoking Section
69 of the Kerala Co-operative Societies Act, 1969, if the
petitioners are so advised.
Sd/-
N. NAGARESH, JUDGE
aks/03.10.2024
2024:KER:73311
APPENDIX OF WP(C) 33538/2024
PETITIONERS' EXHIBITS:
Exhibit P1 TRUE COPY OF THE IDENTITY CARD OF 1ST
PETITIONER T.M. NAZEER DATED
23.07.2008
Exhibit P2 TRUE COPY OF THE RELEVANT PART OF
IDENTITY CARD OF 2ND PETITIONER REETHA
AUNTO DATED 6.08.2014
Exhibit P3 TRUE COPY OF THE ELECTION NOTIFICATION
DATED 30.08.2024
Exhibit P4 TRUE COPY OF THE CASH RECEIPT FOR
VOTERS LIST DATED 18.09..2024
Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF
VOTERS LIST DATED 6.08.2024
Exhibit P6 TRUE COPY OF THE REPRESENTATION TO THE
STATE CO-OPERATIVE ELECTION COMMISSION
DATED 20.09.2024
Exhibit P7 TRUE COPY OF THE REPRESENTATION OF
MEMBER SILVY PETER DATED 21.09.2024
Exhibit P8 TRUE COPY OF THE REPRESENTATION OF
MEMBER SIJI VARGHESE DATED 21.09.2024
Exhibit P9 TRUE COPY OF THE POSTAL RECEIPTS DATED
24.09.2024
Exhibit P10 TRUE COPY OF THE RELEVANT CLAUSES OF
THE BYE LAW OF THE PERUMBAVOOR SERVICE
COOPERATIVE SOCIETY
RESPONDENTS' EXHIBITS:
Exhibit R4(a) TRUE COPY OF THE REGISTRATION
CERTIFICATE OF AMENDMENT OF BYELAWS
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DATED 27.02.2023 ALONG WITH COVERING
LETTER BEARING NO. O(1) 2274/2022
DATED 27.02.2023 ISSUED BY THE JOINT
REGISTRAR (GENERAL) OF CO-OPERATIVE
SOCIETIES, ERNAKULAM.
Exhibit R4(b) TRUE COPY OF THE RELEVANT PORTION OF
MINUTES OF THE MANAGING COMMITTEE
MEETING OF THE 4TH RESPONDENT BANK
CONVENED ON 10.03.2023.
Exhibit R4(C) TRUE COPY OF THE NOTICE DATED
30.03.2023 AND PUBLISHED IN
'MATHRUBHUMI' NEWSPAPER ON 31.03.2023.
Exhibit R4(d) TRUE COPY OF THE RELEVANT PORTION OF
MINUTES OF THE MANAGING COMMITTEE
MEETING OF THE 4TH RESPONDENT BANK
CONVENED ON 28.03.2024.
Exhibit R4(e) TRUE COPY OF THE RESOLUTION TAKEN BY
THE MANAGING COMMITTEE OF THE 4TH
RESPONDENT BANK ON 26.07.2024.
Exhibit R4(f) TRUE COPY OF THE NOTICE DATED
04.09.2024 ISSUED BY THE ELECTORAL
OFFICER WHILE PUBLISHING THE
PRELIMINARY VOTERS LIST.
Exhibit R4(g) TRUE COPY OF THE RELEVANT PAGES OF THE
PRELIMINARY VOTERS LIST OF THE 4TH
RESPONDENT BANK.
Exhibit R4(h) TRUE COPY OF THE OBJECTIONS SUBMITTED
BY SIX INDIVIDUALS WITH RESPECT TO THE
PRELIMINARY VOTERS LIST BEFORE THE
ELECTORAL OFFICER DATED 11.09.2024
ALONG WITH COVERING LETTER NO.
ARGKTU/962/2024-UI(2) DATED 11.09.2024
ISSUED BY THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES.
Exhibit R4(i) TRUE COPY OF THE ORDER NO.
ARGKTU/962/2024- REJECTING THE
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OBJECTIONS.
Exhibit R4(j) TRUE COPY OF THE NOTICE DATED
18.09.2024 ISSUED BY THE ELECTORAL
OFFICER WHILE PUBLISHING THE FINAL
VOTERS LIST.
