Kerala High Court
Savithri Antharjanam vs The Kerala State Co-Operative Election ... on 15 July, 2014
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
WEDNESDAY, THE 20TH DAY OF AUGUST 2014/ 29TH SRAVANA, 1936
WP(C).No. 20823 of 2014 (C)
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PETITIONERS:
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1. SAVITHRI ANTHARJANAM
MEMBER OF THE MANAGING COMMITTEE OF THE
IDUKKI CHERUKIDA VYAVASAYI SAHAKARANA SANGHAM
THODUPUZHA, IDUKKI
2. ELSY THOMAS
MEMBER OF THE MANAGING COMMITTEE OF THE
IDUKKI CHERUKIDA VYAVASAYI SAHAKARANA SANGHAM
THODUPUZHA, IDUKKI
3. MARY THOMAS
MEMBER OF THE MANAGING COMMITTEE OF THE
IDUKKI CHERUKIDA VYAVASAYI SAHAKARANA SANGHAM
THODUPUZHA, IDUKKI
4. K.K. THOMAS
MEMBER OF THE MANAGING COMMITTEE OF THE
IDUKKI CHERUKIDA VYAVASAYI SAHAKARANA SANGHAM
THODUPUZHA, IDUKKI
5. K.N. MURALLEDHARAN NAMBOOTHIRI
MEMBER OF THE MANAGING COMMITTEE
OF THE IDUKKI CHERUKIDA VYAVASAYI SAHAKARANA SANGHAM
THODUPUZHA, IDUKKI
6. RAJENDRAN NAIR
MEMBER OF THE MANAGING COMMITTEE OF THE
IDUKKI CHERUKIDA VYAVASAYI SAHAKARANA SANGHAM
THODUPUZHA, IDUKKI
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENTS:
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1. THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION
THIRUVANANTHAPURAM - 695 001.
2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)
IDUKKI - 685 001
3. THE ELECTORAL OFFICER
APPOINTED FOR CONDUCT OF ELECTION TO THE
MANAGING COMMITTEE OF THE MANAGING COMMITTEE
OF THE IDUKKI CHERUKIDA VYAVASAYI SAHAKARANA SANGHAM
THODUPUZHA
IDUKKI (ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES(GENERAL)
THODUPUZHA, IDUKKI) - 685 584.
4. THE RETURNING OFFICER
APPOINTED FOR CONDUCT OF ELECTION TO THE
MANAGING COMMITTEE OF THE MANAGING COMMITTEE
OF THE IDUKKI CHERUKIDA VYAVASAYI SAHAKARANA SANGHAM
THODUPUZHA, IDUKKI (UNIT INSPECTOR
OFFICE OF THE ASSISTANT REGISTRAR
OF CO-OPERATIVE SOCIETIES(GENERAL)
THODUPUZHA, IDUKKI) - 685 584
5. THE IDUKKI CHERUKIDA VYAVASAYI SAHAKARANA SANGHAM,
THODUPUZHA, IDUKKI
REPRESENTED BY ITS SECRETARY - 685 584.
6. JAMES M.P
MATTATHIL HOUSE, MUTTAM, THODUPUZHA
IDUKKI DISTRICT - 685 584.
R1,R2,R3,R4 BY ADV. SRI.D.SOMASUNDARAM,
SPL. GP FOR CO.OPERATION
R5 BY ADV. SRI.B.S.SWATHY KUMAR
R5 BY ADV. SRI.REMYA MURALI
R5 BY ADV. SRI.A.K.RAJESH
R5 BY ADV. SRI.VENKATESH GOPI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RKC
WP(C).No. 20823 of 2014 (C)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 : TRUE COPY OF THE BYE LAW OF THE SOCIETY
EXHIBIT P2 : TRUE COPY OF THE ELECTION NOTIFICATION ISSUED BY THE 1ST
RESPONDENT DATED 15.07.2014
EXHIBIT P3 : TRUE COPY OF THE VOTERS LIST
EXHIBIT P4 : TRUE COPY OF THE RESOLUTION OF THE MANAGING COMMITTEE
EXHIBIT P5 : TRUE COPY OF THE REPRESENTATION PREFERRED BEFORE THE 1ST
RESPONDENT
EXHIBIT P6 : TRUE COPY OF THE SUSPENSION ORDER ISSUED AGAINST THE
SECRETARY OF THE SOCIETY
EXHIBIT P7 : TRUE COPY OF THE REQUEST PREFFERED BEFORE THE 2ND
RESPONDENT ALONG WITH PROPOSED NO CONFIDENCE MOTION
EXHIBIT P8 : TRUE COPY OF THE LIST OF CONTESTING CANDIDATES
5TH RESPONDENT(S)' EXHIBITS
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R5(a) COPY OF THE NOTICE DT.13.6.14 ISSUED BY THE 5TH RESPONDENT
R5(b) COPY OF THE RESOLUTION NO.384 DT.20.6.14
R5(c) COPY OF THE RELEVANT PORTION OUTWARD REGISTER OF THE 5TH
RESPONDENT
R5(d) COPY OF THE NOTICE DT.23.7.14 ISSUED BY THE 3RD RESPONDENT
R5(e) COPY OF THE REQUEST FILED BY THE PETITIONERS TO THE
PRESIDENT OF THE 5TH RESPONDENT DATED NIL
R5(f) COPY OF THE RESOLUTION NO.234 DT.5.6.12 OF THE 5TH
RESPONDENT
R5(g) COPY OF THE RESOLUTION NO.240 DT.30.6.12 OF R5
R5(h) COPY OF THE RESOLUTION NO.262 DT. 12.10.12 OF R5
R5(i) COPY OF THE RESOLUTION NO.280 DT.25.1.13 OF R5
R5(j) COPY OF THE RESOLUTION NO.294(i) DT.2.4.13 OF R5
R5(k) COPY OF THE RESOLUTION NO.301 DT. 20.5.13 OF R5
R5(l) COPY OF RESOLUTION NO.321(2) DT.17.8.13 OF R5
R5(m) COPY OF THE RESOLUTION NO.342 DT.14.11.13OF R5
R5(n) COPY OF RESOLUTION NO.346 DT.16.12.13 OF R5
R5(o) COPY OF THE RESOLUTION NO.363 DT.10.2.14 OF R5
R5(p) COPY OF RESOLUTION NO.367 DT.25.3.14 OF R5
R5(q) COPY OF THE APPLICATION SUBMITTED JAMES M.P. DT.12.10.12
R5(r) COPY OF THE COMMUNICATION DT.8.8.14 FROM R2
R5(s) COPY OF THE COMMUNICATION DT.11.8.14 ISSUED BY R5
WP(C).No. 20823 of 2014 (C)
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3RD RESPONDENT'S ANNEXURES
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ANNX. R3(a) : COPY OF THE RESOLUTION DT.20.6.14
RKC
TRUE COPY
PA TO JUDGE
K.SURENDRA MOHAN, J.
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W.P.(C).No.20823 of 2014
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Dated this the 20th day of August, 2014
JUDGMENT
The petitioners, members of the Managing Committee of the fifth respondent society, have filed this writ petition challenging the election that is scheduled to be held on 24.8.2014, pursuant to Ext.P2 notification. The fifth respondent society is registered under the provisions of the Kerala Co- operative Societies Act, 1969 (hereinafter referred to as "the Act"
for short).
2. According to the petitioners, the society has three types of members, of whom, only the A class members are entitled to vote. It is alleged that there are only 120 A class members for the society, who are entitled to vote at the election. However, the voters list published shows 174 members. It is alleged that, a number of members have been enrolled without the approval of the Managing Committee and that, they are being sought to be conferred with voting rights. It is also contended that though the W.P.(C).No.20823 of 2014 2 Managing Committee, that met on 20.6.2014, had decided to conduct election, no decision approving the voters list was adopted at the meeting. Therefore, the voters list, that was sent to the first respondent, was a document created by the President and the Secretary, with the object of manipulating the election. According to the petitioners, the conduct of an election permitting ineligible members to vote would only be a farce. Ext.P4 is stated to be the minutes of the meeting. The petitioners contend that, no decision approving the voters list was adopted at the meeting. It is also stated that, the copies of the election notification has not been received by majority of the members of the society. Therefore, they were effectively prevented from submitting objections to the draft voters list published. At present, the final voters list has been published and the polling is to be conducted on 24.8.2014. The petitioners are therefore seeking the issue of appropriate directions interdicting the conduct of the election.
3. Adv.B.S.Swathi Kumar appears for respondents 1 to 4. A statement has been filed by the third respondent. According to W.P.(C).No.20823 of 2014 3 the third respondent the committee in office had adopted a resolution on 20.6.2014, to conduct election of the members of the Managing Committee and to request the first respondent to appoint an Electoral Officer and a Returning Officer for the purpose of conducting the election. The first respondent by his order dated 15.7.2014, appointed an Electoral Officer and a Returning Officer for the conduct of the election. A copy of the resolution received by the first respondent is produced as Ext.R3
(a). According to the first respondent, there was no infirmity in the proceedings as alleged by the petitioners. After assuring the proper publication of the election notification, on the basis of the postal receipts and the eligibility of the persons, names were included in the voters list. By examining the admission register, a preliminary voters list was published on 23.7.2014. Time was granted to the members to raise objections, to the preliminary voters list up to 5P.M. on 30.7.2014. Though objections were received within the time stipulated therein, the final voters list was published on 1.8.2014 at 11A.M without making any changes in the preliminary voters list. Thereafter, nominations W.P.(C).No.20823 of 2014 4 were received from the persons who were desirous of contesting the election as candidates. Out of the 25 nominations, 9 were rejected by the Returning Officer for the reason that, they being defaulters to the society, were ineligible to contest the election.
All the 6 petitioners in this writ petition are defaulters. Therefore their nominations have been rejected.
4. A detailed counter affidavit has been filed by the fifth respondent. According to the fifth respondent, the allegations leveled by the petitioners are all without any basis. Ext.R5(a) is the notice convening the meeting of the Managing Committee on 20.6.2014. The approval of the voters list was a specific agenda at the meeting. Ext.R5(b) is the minutes of the meeting. A decision was taken at the meeting, approving the voters list. Thereafter, the election notification was served on each member of the society by speed post. The relevant portion of the outward register of the society is produced as Ext.R5(c). A draft voters list was also published on the notice board. Thereafter, the petitioners had requisitioned a meeting of the Managing Committee on 7.8.2014 as per Ext.R5(e). The President of the W.P.(C).No.20823 of 2014 5 society directed the meeting to be convened on 9.8.2014. However, it is alleged by the petitioners that they had conducted a meeting of the Managing Committee on 7.8.2014 and placed its Secretary under suspension. No meeting of the Managing Committee could be conducted on 9.8.2014, since no member turned up on the said date. It is also pointed out that, the persons who have been enrolled as members from serial No.120 onwards, have been enrolled over 11 meetings attended by the petitioners also. Therefore, according to the counsel for the fifth respondent the contentions raised are absolutely baseless.
5. According to Sri.P.C.Sasidharan, the counsel appearing for the petitioners, the Secretary has been placed under suspension by the Managing Committee at its meeting held on 7.8.2014. Therefore, the counter affidavit filed by the Secretary who is under suspension cannot be relied on, since he has no capacity to represent the society. According to the learned counsel, Ext.P5(a) minutes have been manipulated and additional resolutions have been inserted by the President and the Secretary. Therefore, it is contended that the election proposed W.P.(C).No.20823 of 2014 6 to be conducted is to be stopped by the intervention of this Court.
6. I have heard Sri.P.C.Sasidharan, who appears for the petitioners, Sri.B.S.Swathi Kumar, who appears for the fifth respondent as well as Sri.D.Somasundaram, the Special Government Pleader appearing for respondents 1 to 4.
7. As per Ext.P2 notification, dated 15.7.2014, the first respondent has notified an election to be conducted as per the schedule contained therein. Accordingly, it is not in dispute that a draft voters list had been published on 23.7.2014. The time for preferring objections to the draft voters list was up to 5P.M on 30.7.2014. The objections were to be considered and the final voters list was published on 1.8.2014. 8.8.2014 was the date fixed for submitting nominations. 11.8.2014 was the date for scrutiny of nominations and the last date for withdrawal of the nominations was 12.8.2014. The proceedings of the election have been progressing in accordance with the schedule stipulated in Ext.P10. All the different stages have been completed and what remains at present is only the actual poling that is to take place W.P.(C).No.20823 of 2014 7 on 24.8.2014. Therefore, what arises for consideration is whether the proceedings should be interfered with and stopped at this stage.
8. According to Sri.P.C.Sasidharan, who appears for the petitioners, who are none other than 6 of the members of the Managing Committee, the President has not been authorised to submit a voters list, as contended. No decision to the said effect was taken at the meeting of the committee held on 20.6.2014. Therefore, the voters list submitted to the first respondent was a creation of the President and the Secretary without the authorisation of the Managing Committee. No election on the basis of such an unauthorised voters list is permissible. It is also contended that, only 120 A class members were eligible to participate and vote in the election. However, the list now published shows 174 members. Therefore, it is clear that ineligible members have been deliberately included by the President and the Secretary without any authority.
9. Per contra, according to Sri.B.S.Swathi Kumar, who appears for the fifth respondent, Ext.R5(a) is the notice W.P.(C).No.20823 of 2014 8 convening the meeting on 20.6.2014, which has been signed by all the petitioners. Particular reliance is placed on the second agenda which concerns the approval of the voters list. According to the counsel, on the basis of the said agenda, resolutions were adopted as recorded in Ext.R5(b) minutes of the said meeting. Resolution No.384 specifically approves the list of 174 members. Ext.R5(b) document is disputed by the counsel for the petitioners pointing out that the said document has not been signed by the members. It is pointed out with reference to the minutes of the other meetings produced in this case that, it was the practice of the Managing Committee for all the members of the society to sign the minutes after the proceedings were duly recorded. Such signatures are seen in the minutes which are produced as Ext.R5
(f). According to the counsel for the fifth respondent, Ext.P4 is not a copy of the minutes of the meeting. The same is only a manipulated document.
10. A perusal of Ext.R5(a) shows that, it was a specific agenda of the meeting on 20.6.2014, to approve the voters list. It is not in dispute that Ext.R5(a) has been singed by the W.P.(C).No.20823 of 2014 9 petitioners also. Ext.R5(b) discloses a decision recorded to the effect that a list of voters comprising of persons with membership Nos.1 to 179 was approved by the Managing committee. An insertion is seen at the point where 179 has been written in words to the effect that the reference was to serial Nos.1 to 174. However, the above insertion does not appear to be of any consequence for the reason that the case of the petitioners is that there were only 120 members. No such number appears anywhere in the minutes. What has been inserted is "1-174" which indicates only that there are actually 174 members. It is not in dispute that the voters list contains only 174 members. It is also pointed out that, at the margin of the resolution No.384, the signature seen as that of "B Unit"
inspected is different from that of the signatures seen in the margin of the resolution No.385 and 383. The above discrepancies are relied upon to point out that resolution No.384 is a subsequent insertion. However, a perusal of Ext.R5(b) does not support any such conclusion. The genuineness of Ext.R5(b) cannot be decided on the basis of the materials presently W.P.(C).No.20823 of 2014 10 available in the writ petition for the reason that only photostat copies of the documents are produced. Therefore, I refrain from embarking upon such an exercise.
11. However, since Ext.R5(a) discloses a specific agenda regarding approval of the voters list and the document having been signed by the petitioners, in all probability, a decision would certainly have been taken to adopt the voters list. Exts.R5(f) to Ext.R5(p) produced as the resolution adopted, while admitting additional members to the society, also prima facie support the contention of the fifth respondent that, additional members had been admitted to the membership of the society. I also notice that the election notification has been communicated to all the members of the society by speed post as evidenced by Ext.R5(c). Ext.P2 election notification was issued on 15.7.2014. The draft voters list was published on 23.7.2014. No member has objected, to the draft voters list. Therefore the same has been finalised without any objection. The petitioners who were parties to the decision to conduct the election, also have not submitted any objection to the voters list. They have filed this writ petition W.P.(C).No.20823 of 2014 11 only on 11.8.2014. As already noticed above, the proceedings for the conduct of election have progressed considerably and what remains is only the poling. According to the learned Special Government Pleader all arrangements to have the polling conducted smoothly have been made.
12. In the above above circumstances, I do not find any grounds to interfere with the election of the fifth respondent Society at this stage. It is made clear that, I have not entered any conclusive findings on the various contentions raised before me except to draw prima facie inferences for the disposal of this writ petition.
The respondents shall be at liberty to take further action on Ext.P7 in accordance with law. In order to safeguard the interests of the petitioners, for the purpose of preferring an election petition, the fourth respondent is directed to collect separately, the votes polled by the members who are listed at serial Nos.121 to 174 in the voters list. The Returning Officer shall count their votes also and shall declare the results, but the votes shall be kept separately to be disposed of in accordance with the W.P.(C).No.20823 of 2014 12 directions in the election petition, if any that may be filed. The writ petition is disposed of accordingly.
Sd/-
K.SURENDRA MOHAN, JUDGE.
rkc.