Kerala High Court
Joseph D'Cruz vs State Of Kerala on 10 July, 2012
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
THURSDAY, THE 6TH DAY OF SEPTEMBER 2012/15TH BHADRA 1934
WP(C).No. 18798 of 2012 (Y)
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PETITIONERS:
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1. JOSEPH D'CRUZ, AGED 62 YEARS
S/O.VINCENT D'CRUZ, MARY COTTAGE
EX-SERVICE MEN'S COLONY, VECHOOCHIRA-686 511.
2. M.J.RAJU
S/O.M.JOHN, MUTTUKONATH, VECHOOCHIRA.
BY ADV. SRI.T.M.ABDUL LATHEEF
RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT
CO-OPERATIVE DEPARTMENT
THIRUVANANTHAPURAM-695 001.
2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)
PATHANAMTHITTA-689 645.
3. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)
RANNI. 689 672.
4. RETURNING OFFICER
EX-SERVICE MEN MULTI PURPOSE CO-OPERATIVE
COLONY SOCIETY LTD.NO.3171
VECHOOCHIRA, MANNADISALA.P.O.
PATHANAMTHITTA-686 514.
5. EX-SERVICE MEN MULTI PURPOSE CO-OPERATIVE
COLONY SOCIETY LTD.NO.3171
REPRESENTED BY ITS SECRETARY, VECHOOCHIRA
MANNADISALA.P.O., PATHANAMTHITTA-686 514.
6. RADHAKRISHNAN.R.
PRESIDENT
EX-SERVICE MEN MULTI PURPOSE CO-OPERATIVE COLONY
SOCIETY LTD.NO:3171
VECHOOCHIRA,MANNADISALA P.O.
PATHANAMTHITTA - 686 514
BY ADV. SRI.P.K.VIJAYAMOHANAN
BY ADV. SRI.GILBERT GEORGE CORREYA
BY ADV. SRI.NISHIL.P.S.
BY ADV. SMT.O.V.BINDU
BY ADV. SRI.J.VIMAL
BY SPL. GOVERNMENT PLEADER SHRI.D.SOMASUNDARAM
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX
PETITIONER(S) EXHIBITS
P1- TRUE COPY OF THE VOTERS' LIST.
P2- TRUE COPY OF THE ELECTION NOTIFICATION DATED 10.07.2012.
P3- TRUE COPY OF THE COMPLAINT DATED 23.07.2012 SUBMITTED BY THE FIRST
PETITIONER BEFORE THE 4TH RESPONDENT.
P4- TRUE COPY OF THE COMPLAINT DATED 19.07.2012 SUBMITTED BY THE FIRST
PETITIONER BEFORE THE 3RD RESPONDENT.
P5- TRUE COPY OF THE COUNTER AFFIDAVIT DATED 26.11.2011 FILED BEFORE
THIS HONOURABLE COURT IN W.P.(C)NO.4487 OF 2011.
P6- TRUE COPY OF THE EX SERVICEMEN LAND COLONIZATION SCHEME.
P7- TRUE COPY OF THE PETITION DATED 26.07.2012 SUBMITTED BY THE FIRST
PETITIONER BEFORE THE HONOURABLE CHIEF MINISTE OF KERALA.
P8- TRUE COPY OF THE PETITION DATED 02.08.2012 SUBMITTED BY THE
PETITIONERS BEFORE THE 2ND RESPONDENT.
EXT.P9: -DO- OF THE VOTERS' LIST PREPARED BY THE PETITIONERS
RESPONDENTS' EXHIBITS
EXT.R5A: TRUE COPY OF THE COMMUNICATION NO:0.2687/2003 DT.8.10.2003 OF
THE 2ND RESPONDENT
EXT.R5B: -DO- OF THE TEXT OF THE RELEVANT PORTION OF THE BYELAW
AMENDMENT REGISTERED ON 8.10.2003
EXT.R5C: -DO- OF THE DEATH CERTIFICATE DT.13.7.2012 IN RESPECT OF
SMT.BHAVANI AMMA
EXT.R5D: -DO- OF COMMUNICATION NO.SCTM/5296/03/L.DIS. DT.31.3.2004 OF
THE 2ND RESPONDENT
EXT.R5E: -DO- OF THE PROCEEDINGS OF THE RETURNING OFFICER DT.25.8.2012
JJ /TRUE COPY/
P.S.TO JUDGE
K. SURENDRA MOHAN, J.
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W.P(C) NO: 18798 OF 2012
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Dated this the 6th September, 2012.
JUDGMENT
The petitioners are members of the fifth respondent society. As part of a Central Government Scheme for the rehabilitation of Ex-Servicemen, the Government of Kerala had provided land for the rehabilitation of Ex-Servicemen of the Army of the erstwhile State of Travancore. For the purpose, an extent of 1500 acres of land in Vechoochira in Thiruvananthapuram district was set apart under the Ex-Servicemen Colonization Scheme. For the effective implementation of the scheme, it was ordered that a Co-operative Society should be formed by the members who were individually allotted with plots of land. Accordingly the fifth respondent society was formed in the year 1951. The membership of the society was limited to 300 numbers, who alone were allotted plots of land. There is also a clause in the scheme that the property allotted to the individual members shall not be transferred to others or sold. However, according to the petitioners some of the persons have transferred the lands allotted to them in violation of the provisions of the scheme. Therefore, the present membership is only 169. WPC 18798/2012 2
2. The petitioners complain that the present Managing Committee has admitted persons who are ineligible to be members of the society. The bye-law provision entitles only one of the legal heirs of a deceased member to claim membership of the society. Instead, a number of legal heirs have been admitted in the place of some of the deceased members. Thereby there are as many as 10 members from one family, it is alleged. The above act is in gross violation of the provisions of the original scheme as well as the bye- laws.
3. This writ petition was filed by the petitioners on the eve of an election that was notified as per Ext.P2 dated 10-7-2012. According to the petitioners, they had submitted their objections to the draft voters list but, without considering the objections so preferred, Ext.P6 voters list was published including a total number of 262 members. According to the petitioners, the voters list contained 77 ineligible members. They have also submitted Ext.P4 complaint to the third respondent. However, no action was taken on the said complaint also. The petitioners contended that since the ineligible members constituted 1/3rd strength of the voters as per the final voters list published, it was necessary to decide finally regarding their eligibility before they could be permitted to vote. WPC 18798/2012 3 Inasmuch as, complaints regarding their eligibility have not evoked any response from the authorities, it was contended that at least the votes polled by the said members should be collected in a separate ballot box so that the identity of the disputed votes could be preserved.
4. This writ petition was admitted on 9-8-2012 and notice was served on the respondents through special messenger. As per interim order dated 22-8-2012, after hearing the counsel for the petitioners as well as the counsel for respondents 5 and 6 and the learned Special Government Pleader, an interim direction was issued to the Returning Officer who is the fourth respondent herein to collect the disputed votes in a separate ballot box. Accordingly the disputed votes have been collected and retained separately. Along with I.A.11777/2012, the fifth respondent has produced as Ext.R5(e), the proceedings of the Returning Officer with regard to the election that was conducted.
5. A counter affidavit has been filed on behalf of respondents 5 and 6 producing Exts.R5(a) to R5(e) documents. According to the counter affidavit, the bye-law provision has been amended permitting the legal heirs of the deceased members also to become members of the society. Since the original bye-law provision did WPC 18798/2012 4 not permit admission of more than one legal representative of a deceased member as a member of the society, the general body felt that in order to increase participation of members in the society the bye-law amendment was necessary. It is also contended that the bye-laws were amended in the year 2003 and the amendments were registered on 8-10-2003, as evident from Exts.R5(a) and R5(b). It is contended that the present managing committee has admitted only 34 members additionally. In spite of the addition of new members, the total number of members still remain at 262. Therefore, it is pointed out that the outer limit of 300 members stipulated by the original scheme has still not been violated.
6. A statement has been filed by the fourth respondent admitting that more than one member has been admitted in the place of an original member who has expired. The complaint regarding the ineligibility or eligibility of the members who have been admitted is a matter that cannot be decided by the fourth respondent, it is contended.
7. I have heard Adv.T.M.Abdul Latiff who appears for the petitioners, Adv.P.K.Vijayamohan who appears for respondents 5 and 6 as well as Special Govt. Pleader Shri. D.Somasundaram at length. I have been taken through the records of the case in detail WPC 18798/2012 5 as well as the provisions of law. I have considered the rival contentions anxiously.
8. According to the counsel for the petitioners, since disputes regarding the eligibility of the members who have been admitted recently have been raised and since complaints regarding the said action have not evoked any response from the authorities, it was necessary for this Court to interfere in the matter, to set right matters and to have an election conducted only permitting eligible members to participate. Since no proper election has been conducted in the present case, it is contended that this writ petition is maintainable. It is also pointed out that in order to preserve the identity of the disputed votes, they have been collected in a separate ballot box and retained separately. The results have not been announced because this Court has not permitted them to do so. For the above reason it is contended that it is within the powers of this Court to grant the relief that has been sought for. The amendments that are relied upon by respondents 5 and 6 cannot justify the admission of new members for the reason that the amendments run counter to the scheme which provides that only one legal heir could be admitted in the place of a deceased member. Therefore, according to the counsel for the WPC 18798/2012 6 petitioner this writ petition is only to be allowed.
9. The contentions of the counsel for the petitioners are stoutly opposed by Adv.P.K.Vijayamohan who appears for respondents 5 and 6. According to the counsel, since it is not in dispute that Ext.P2 election notification was issued as early as on 10-7-2012 the process of election has commenced. For the above reason, any complaints regarding the election would have to be resolved in a properly framed election petition to be filed by the petitioners in accordance with the Kerala Co-operative Societies Act and the Rules. It is contended that since none of the persons who are likely to be affected have been made parties to this writ petition, no member can be held to be ineligible in these proceedings. It is the further contention of the counsel that the amendments to the bye-laws were made as early as in the year 2003 and have been in force ever since, without being challenged or called in question before any forum by any person. Even in the present writ petition the said amendments are not under challenge. For the above reasons he seeks the dismissal of this writ petition.
10. According to Mr. D.Somsundaram, Special Govt. Pleader, the proceedings of the Returning Officer Ext.R5(e) shows that the results of the election are not likely to be materially affected either WPC 18798/2012 7 by including the disputed votes or by excluding them. Since the results remain unaffected even if the contentions of the petitioners are accepted as correct, there is little scope for upsetting the verdict of the electorate. However, it is pointed out that seven out of the nine members elected to the Managing Committee are persons whose eligibility are in dispute.
11. The dispute in this writ petition mainly centers around the eligibility of the members who have been admitted by the Managing Committee in office. They are persons with membership numbers 690 to 785. According to respondents 5 and 6, they have admitted only 34 members during their tenure, the others having been admitted to membership by the previous committee. It is worth noticing that though the original bye-laws stipulated that only one of the legal heirs shall be admitted to the membership of the society in the place of a deceased member, the same has been amended, as evidenced by Ext.R5(b). The amendments have also been registered as per Ext.R5(c). Ext.R5(d) shows that members have been admitted in accordance with the amended bye-law provision. It is true that the amended bye-law provision runs counter to the stipulation in Ext.P1 scheme that only one person can be admitted in the place of a deceased member. However, the WPC 18798/2012 8 members already having been admitted to membership, cannot be removed without following the procedure that is stipulated by Rule 16 of the Kerala Co-operative Societies Rules, 1969. The proceedings if any for determining the eligibility of such members and for removing them would have to be initiated and conducted separately with notice to the persons who are likely to be affected. It is pointed out by the counsel for the petitioners that Ext.P8 complaint submitted by him is pending before the second respondent. The second respondent would have to consider Ext.P8 and take necessary action thereon.
12. With respect to the election that has already been conducted, as rightly pointed out by the learned Special Govt. Pleader a perusal of Ext.R5(e) does not prima facie show any substantial variation in the results, even if the disputed votes are taken into account. Therefore, there appears to be no point in directing the Returning Officer to exclude the said votes. Since the election has already been conducted, it is only appropriate that the fourth respondent declares the results.
13. A Division Bench of this Court has held in Raghavan M.V v. Returning Officer {2009(2) KHC 47} that where disputed questions of fact are involved the jurisdiction under Art.226 of the WPC 18798/2012 9 Constitution is not appropriate for the purpose of deciding such questions effectively. Since Sections 69 and 70A of the Kerala Co- operative Societies Rules provides an effective remedy in the form of an election petition to challenge an election if a person is aggrieved by the same, it is only appropriate that questions regarding the validity of an election are left to be determined in such proceedings. In the present case also, the question as to whether the result of the election has been materially affected by permitting the allegedly ineligible members to vote is best left to be decided in a properly framed election petition before the appropriate authority. The petitioners have a further case that 44 ineligible persons have been included in the category of eligible persons, without any justification. Therefore, the petitioners are permitted to take up their objections with respect to the said members also in their election petition.
14. In view of the above, this writ petition is disposed of as follows:-
i) The fourth respondent/Returning Officer shall declare the results of the election conducted on 25-8-2012 counting also the disputed votes collected separately. However, the disputed votes shall be retained separately, a fter counting them awaiting further WPC 18798/2012 10 orders in an Election Petition, if instituted.
ii) The petitioner if he is aggrieved by the election conducted on 25-8-2012 may challenge the same in a properly framed Election Petition. The fourth respondent shall keep the disputed votes in the ballot box for a period of one month of the date of receipt of a copy of this judgment so as to enable the petitioner to file a proper election petition if he so chooses and to obtain further orders regarding the manner of disposal of the disputed votes.
iii) The second respondent shall consider the petitioner's complaint Ext.P8 in accordance with law and shall take appropriate action thereon as enjoined by law as expeditiously as possible and at any rate within a period of three months of the date of receipt of a copy of this judgment with notice to all the parties.
iv) The writ petition is disposed of with the above directions.
Sd/-
K. SURENDRA MOHAN
Judge
jj /True copy/
P.S.to Judge
WPC 18798/2012 11