Kerala High Court
For Information Purpose Only vs Thasveer Hassan on 26 February, 2021
Author: Sunil Thomas
Bench: Sunil Thomas
WP(C) 4560/2021 1/6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
Friday,the 26th day of February 2021/7th Phalguna, 1942
WP(C) No.4560/2021 (T)
For information purpose only
PETITIONERS
1. THASVEER HASSAN,
S/O. AHAMMED KUTTY, THASVEER MANZIL, PETTA,
FEROKE P.O, KOZHIKODE DISTRICT
2. ABDUL SALAM P.K.,
S/O. MUHAMMED KOYA P.K, PERUNKOLLANTHODI HOUSE,
KARUVANTHIRUTHY, FEROKE, KOZHIKODE DISTRICT.
RESPONDENTS
1. THE STATE CO-OPERATIVE ELECTION COMMISSION
REPRESENTED BY ITS SECRETARY, 3RD FLOOR, CO-BANK TOWERS,
VIKAS BHAVAN P.O, THIRUVANANTHAPURAM PIN 695 033
2. THE ELECTORAL OFFICER/ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL),PUTHIYARA, KOZHIKODE PIN 673 004.
3. THE RETURNING OFFICER/UNIT INSPECTOR, FEROKE UNIT,
OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL), PUTHIYARA, KOZHIKODE PIN 673 004
4. THE KARUVATHIRUTHY SERVICE CO-OPERATIVE BANK LTD NO. D 2638,
REPRESENTED BY ITS SECRETARY, KARUVANTHIRUTHY,
FEROKE, KOZHIKODE PIN 673 631
5. THE ADMINISTRATIVE COMMITTEE OF THE KARUVANTHIRUTHY
SERVICE CO-OPERATIVE BANK LTD NO. D 2638,
REPRESENTED BY ITS CONVENER, KARUVANTHIRUTHY,
FEROKE, KOZHIKODE PIN 673 631.
Writ Petition (civil) praying inter alia that in the circumstances stated in the
affidavit filed along with the WP(C) the High Court be pleased to stay all further
proceedings pursuant to Exhibit P1 notification, pending disposal of the writ
petition (civil).
This petition coming on for admission upon perusing the petition and the
affidavit filed in support of WP(C) and upon hearing the arguments of
M/S.T.R.HARIKUMAR & ARJUN RAGHAVAN, Advocates for the petitioner,
SRI.LAKSHMI NARAYAN, Advocate for R1 to R3 and of SRI.P.P.JACOB, Advocate
for R4 & R5,SRI.M.SASINDRAN ,Advocate for Additional R 6 to 8 (Sought to be
Impleade) the court passed the following:
WP(C) 4560/2021 2/6
p.t.o
SUNIL THOMAS, J.
----------------
WP(C) No.1783 of 2021, WP(C) No.2187 of 2021 (W), WP(C) No.3379
of 2021 (V), WP(C) No.4560 of 2021 (T) & WP(C) No.483 of 2021 (I)
For information purpose only ----------------
Dated this the 26th day of February 2021
ORDER
The writ petitioner in W.P.(C) No.1783/2021 is Karuvanthiruthy Service Co- operative bank. The last election to the above service Co-operative bank was held on 7/8/2016. A 11 member governing body came into existence, consequent to the election. It seems that, few election petitions were filed before the Arbitration Court challenging the election. They are pending. In the meanwhile, the Arbitration Court interdicted the newly formed governing committee from taking any policy decisions. It seems that there were several proceedings in relation to the above election petitions. In the meanwhile, three members of the managing committee were disqualified by the Joint Registrar of the Co-operative Societies by order dated 18/9/2021 leaving behind only eight members. Thereafter, four members resigned on 24/9/2020. The members remained in the governing body were four, which was short of the requisite quorum. The allegation of some of the writ petitioners is that, the remaining governing body members manipulated the records to make it appear that the four resigned members had attended the meeting on the date of their resignation and had nominated three persons in their place, invoking section 28 A of the Kerala Cooperative Societies Act. It has come on record that relating to the above, certain complaints were filed alleging that the records and registers were manipulated to make it appear that the resigned members had participated in the governing body and nominated three persons in their place to make up the quorum . A complaint was given to the police also as evident from Ext.R1(A) . In the meanwhile, arbitration court by Ext.P9 order in ARC No. 58/2016 dated 2/12/2020 permitted the committee to enroll new WP(C) 4560/2021 3/6 members. It is alleged that about 4500 persons were enrolled consequent to the above decision.
2. While so, by order dated 24/12/2020, which is produced as Ext.P4, fresh election was declared. Ext.P15 is the election notification as per which election is to be conducted on 27/2/2020. Ext.P16 is the order of the cooperative Tribunal by which the Cooperative tribunal directed the electoral officer to publish the voters For information purpose only list strictly based on the previous years preliminary voters list which had 3294 members. It was also directed that, the electoral officer shall not exclude any person from that list. The above order, Ext.P16, is under challenge in W.P.(C) No.1783/2021.
3. Separate counters have been filed by the contesting respondents. It seems from the counter affidavits, that the electoral officer did not follow Ext.P16 and published voters list consisting of 7318 members including the members who were subsequently admitted by the managing committee.
4. W .P(C)4560/2021 is filed by two members of the Society. The specific contention of the writ petitioners was that, the claim of the committee that four members had resigned and they also nominated three members was absolutely false. The alleged nomination of three members was improper. The proposal of the committee to go for election on the basis of such nomination was challenged in the writ petition. It was contended in the writ petition that section 28 (1) (j) of the Kerala cooperative societies Act read with Rule 38 (5) does not empower the managing committee members who have resigned to make recommendation as done in the present case . Hence it was contended that, the nomination of the three persons allegedly done by the four resigned managing committee members was illegal ,improper and liable to be set side. Consequently the enrollment of 3843 members by meeting dated 2/12/2020 was illegal and hence liable to be set aside.
5. Writ Petition Nos. 483/2021, 3379/2021 and 2187/2021 are filed by members of the co-operative society separately challenging the admission of 4500 members by the out going managing committee on the ground that it was without WP(C) 4560/2021 4/6 authority and it was intended to muster support for them. That was illegal, it was contended. In W.P.(C) 2187/2021, IA 2/2021 was filed by member who was a newly enrolled member . It was contended by the petitioner in the impleading petition that, several members have been validly enrolled and no orders adverse to this shall be passed without giving an opportunity of being heard to them and at least somebody representing them brought on record. Any order adverse to For information purpose only them shall not be passed in their absence. Yet another member had filed another impleading petition for getting himself impleaded contending that all the earlier proceedings before the Tribunal were initiated on the basis of the complaint submitted by him and the writ petitions have been filed without impleading proper persons. Both the Impleading petitions were allowed and petitioners brought on record . Both the impleading petitioners were also heard.
6. The learned senior counsel in W.P.(C) 1783/2021 assailing Ext.P6 contended that the above order was passed by the Tribunal in excess of its authority and evidenced total non application of mind. The learned Tribunal, by the impugned order had held that in the election conducted to the managing committee on 7/8/2016, a preliminary voters list was published consisting of 3294 members. However, the then returning officer who was appointed by the election commission had held that several members were disqualified and confined the final voters list to 1670- members. The challenge in the proceedings before the Tribunal was against the decision of the returning officer. The tribunal held that such a provision was incorporated by amendment to section 19 A of the Kerala Cooperative Societies Act and Rule 18A of the Kerala Cooperative Societies Rules. The Tribunal held that, this Court in Pradeep v. Kerala State Co-operative Election Commission 2016 (3) KLT 551 FB)had declared that the amendment was not a good law in view of the decision in Surendran v. V.Poovattur East Service Co-operative Bank Ltd. (2015(3) KLT SN 20 Case No.27) and all the formalities contemplated under section 70 of the Kerala Co-operative Societies Act has to be complied with before decision is taken by the returning officer. It was consequently held that the right of the returning officer to declare that the WP(C) 4560/2021 5/6 membership is cancelled under the caption "not an active member" was per se illegal.
7. Though the learned senior counsel vehemently attacked, the above order as indicating excess of jurisdiction and that evidence total lack of application of mind, I cannot agree with that proposition. It seems that, the decision is well grounded on the legal principle and I do not find any reason to interfere with that For information purpose only conclusion of the Tribunal.
8. Consequent to the above conclusion, the Tribunal had directed the electoral officer to adopt the preliminary list containing 3294 as the basic data for conducting election. He was interdicted from excluding any membership on the ground that he was not an active member of the first respondent bank. The returning officer was also directed not to induct any new member who was not found in the preliminary voters list of 3294 members .
9. Evidently, the above direction authorizes the electoral officer to consider any objection and to pass orders, except by removal of members on the ground that they are not active member . Interdiction was only limited to that. The returning officer was given absolute authority to decide in accordance with law on merits on other valid grounds. Having considered this, I feel that no interference is called for in that order.
10. It seems that, the electoral officer went beyond this and approved a list consisting of more persons. Evidently, those persons were included by the managing committee which according to the contesting parties had lost the quorum. Consequently, they could not have taken any decision. Though the learned standing counsel for the election commission vehemently contended that the electoral officer is bound only by the Rules and the Act and not by other judicial interdiction, I cannot agree with that proposition. The election commission was party to proceedings which culminated in Ext.P16 order. Necessarily, the returning officer was bound to comply with the direction.
11. However, it seems that the election is proposed to be held tomorrow. It appears from the submissions that all the arrangements for the conduct of the WP(C) 4560/2021 6/6 election have also been made. Essentially the question of new members added after the preliminary voters list prepared for the last election consisting of 3294 is to be considered. The question whether the parties are entitled to challenge it at this belated stage or whether they should be relegated to other proceedings are a matters to be considered. Essentially, the question whether new members added are eligible to be voters and whether they satisfy the criteria for membership are For information purpose only matters yet to be considered. At present, the election is liable to be conducted. Further the question of jurisdiction and also interpretation section 28 (1) (j) of the Act read with Rule 38 (5) is also a matter to be considered and examined in detail. Since there is no sufficient time for the above, I am inclined to pass an interim order directing that, the votes of all the persons, who have been enrolled subsequent to the preliminary voters list for the year 2016, in excess of 3294 members referred in Ext.P16, will cast in a separate ballot box to be provided by the returning officer. Necessary arrangements shall be made by the electoral officer/returning officer for the smooth conduct of the election. After counting, the ballot box shall be separately sealed and preserved. The election process shall be completed in accordance with the notification. It is also made clear that the results in the election will be subject to the result of the writ petitions. The newly elected committee shall not take any policy decision untill further orders.
Post the writ petitions for hearing on 5/3/2021.
Sd/-
SUNIL THOMAS,JUDGE dpk /true copy/ Sd/-
ASSISTANT REGISTRAR EXHIBIT P1 - A TRUE COPY OF THE NOTIFICATION NO. O1/2021/E(1)S.C.E.C DATED 06-01-2021 PUBLISHED BY THE 1ST RESPONDENT