Kerala High Court
Thomas K vs The State Co-Operative Election ... on 20 June, 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
FRIDAY,THE 25TH DAY OF JULY 2014/3RD SRAVANA, 1936
WP(C).No. 19324 of 2014 (M)
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PETITIONER:
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THOMAS K, AGED 69 YEARS, S/O. KURIAKOSE,
PEELIYANICKAL HOUSE, NEDUMANNI P.O.,
NEDUMKUNNAM, KOTTAYAM DISTRICT.
BY ADV. SRI.K.SHAJ
RESPONDENT(S):
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1. THE STATE CO-OPERATIVE ELECTION COMMISSION,
3RD FLOOR, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY - 691 006.
2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES ,
THIRUVANANTHAPURAM - 691 006.
3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
KOTTAYAM - 681 009.
4. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES ,
CHANGANACHERR - 681 019.
5. THE CHANGANACHERRY RUBBER MARKETING SOCIETY LTD.NO.K-364,
CHANGANACHERRY, KOTTAYAM DISTRICT,
REPRESENTED BY ITS SECRETARY- 681 019.
BY GOVERNMENT PLEADER SRI.G.GOPAKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25-07-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MBR/
WP(C).No. 19324 of 2014 (M)
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APPENDIX
PETITIONER(S)' EXHIBITS :
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EXHIBIT P1 : TRUE COPY OF NOTIFICATION DATED 20.6.2014 PUBLISHED IN
DEEPIKA DAILY.
EXHIBIT P2 : TRUE COPY OF NOTIFICATION DATED 22.6.2014 PUBLISHED IN
JANMABHUMI DAILY.
EXHIBIT P3 : TRUE COPY OF THE BYLAWS OF THE 5TH RESPONDENT SOCIETY.
EXHIBIT P4 : TRUE COPY OF CIRCULAR NO.E(1)/701/07/S.C.E.C. DATED 25.7.2007
ISSUED BY THE 1ST RESPONDENT.
RESPONDENT(S)' EXHIBITS: - NIL
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/TRUE COPY/
P.S. TO JUDGE
MBR/
K. SURENDRA MOHAN,J.
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W.P(C) NO. 19324 OF 2014
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Dated this the 25th July, 2014.
JUDGMENT
The petitioner, member of the Board of Directors of the fifth respondent Society has filed this writ petition challenging Ext.P2 notification by which, an election to the Board of Directors of the Society is proposed to be conducted. According to the counsel for the petitioner Shri. K.Shaj, the election is being conducted in violation of the provisions of the Kerala Co-operative Societies Act, 1969 and the Rules thereunder (hereinafter referred to as the 'Act' and the 'Rules' for short).
2. The first objection raised is that, no reservation of seats as mandated by Section 28A of the Act has been made. The second objection is that, the provisions of Circular No:9/2012 issued by the first respondent has been violated. WPC 19324/2014 2 The third objection is that, in gross violation of the requirement of Rule 34A (4), Ext.P2 has not been published in two newspapers having wide circulation in the area. It is also contended that, though the objections of the petitioner had been submitted to the first respondent, no action has been taken thereon till date. It is the case of the petitioner that, Ext.P3 by laws of the fifth respondent society ought to have been suitably amended to make provision for reservation of seats as mandated by Section 28A before the election was notified. Such a procedure not having been adopted, it is contended that Ext.P2 is liable to be set aside.
3. The Special Govt. Pleader Shri. D.Somasundaram points out that, where the election is not conducted on ward basis, an amendment of the bye laws is not necessary and the Board of Directors is competent to make provision for the reservation, which has been done in the present case as evident from Ext.P2. A decision of this Court, Azeeskutty v. Returning Officer {2008(4) KLT 165} is relied upon in support WPC 19324/2014 3 of the above contention.
4. According to the learned Special Govt. Pleader, the notification has been published in two newspapers having wide circulation in the area.
5. Heard. Section 28A mandates that three seats have to be reserved for women members and one seat for persons belonging to the Scheduled Castes/Scheduled Tribes. A perusal of Exts.P1 and P2 shows that, such reservation has been provided. The question therefore is, whether such reservation could be provided, without formally amending the by laws of the society. The above question has been considered by this Court in Azeeskutty v. Returning Officer (supra) and it has been held that, in situations where the election is not held on ward basis, the Board of Directors could provide for reservation without amending the by laws.
6. The circular issued by the first respondent which has been relied upon provides that a copy of the by laws of the society as well as a copy of the amendments made thereto WPC 19324/2014 4 have to be furnished to the first respondent at least 35 days before the date fixed for conduct of the election. The circular does not justify a presumption that, it is mandatory to amend the by laws making provision for reservation, before an election could be conducted. Therefore, I am not satisfied that any interference with Exts.P1 and P2 are called for on the said ground. Since it has been held by this Court that the Director Board has the power to make provision for reservation, Exts.P1 and P2 do not suffer from any infirmity inasmuch as provision has been made thereunder for the reservation contemplated by Rule 34A.
The question as to whether the two dailies in which Exts.P1 has been published viz., "the Deepika and Janmabhoomi" are ones having wide circulation in the area is a matter that I am not in a position to determine, within the limits of the summary jurisdiction available under Art.226 of the Constitution. The same is a question of fact. I also remind myself of the fact that the petitioner who was a WPC 19324/2014 5 member of the Board of Directors has to be presumed with knowledge of the circumstances leading up to issue of Ext.P1 notification, for the reason that, the same has been preceded by a decision of the Board of Directors. The petitioner has not chosen to raise his objections at any time either before or after the publication of Exts.P1 and P2. As per the schedule of election published, the various stages leading up to the election have passed and what remains is only the actual polling that is scheduled to take place on 28.7.2014. I am not satisfied that any interference with the election process is called for at this stage. For the above reasons this writ petition is dismissed.
Sd/-
K. SURENDRA MOHAN
Judge
jj /True copy/
WPC 19324/2014 6