ALAN.S. and NOUSHAD.A. v. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM; STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM; ELECTORAL OFFICER (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CHIRAYINKEEZHU); KIZHUVALAM SERVICE CO-OPERATIVE BANK LTD.; RETURNING OFFICER; VISWANATHAN NAIR

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937 WP(C).No. 4028 of 2016 (C) ----------------------------------- PETITIONERS: - ----------------------- 1. ALAN.S., S/o SAHADEVAN, KOCHUVEEDU, KOONTHALOOR, CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT. 2. NOUSHAD.A, S/O.HASSANARPILLA, PUTHENVILA COLONY, MUDAPURAM.P.O, CHIRAYINKEEZHU, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENTS: - - ------------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM-695001. 2. THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM-695001. 3. THE ELECTORAL OFFICER, (THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CHIRAYINKEEZHU) KIZHUVILAM SERVICE CO-OPERATIVE BANK LTD.NO.2405, MUDAPURAM.P.O, THIRUVANANTHAPURAM-695314. 4. THE RETURNING OFFICER, (ATTINGAL UNIT INSPECTOR,OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), KIZHUVILAM SERVICE CO-OPERATIVE BANK LTD NO.2405, - MUDAPURAM.P.O, THIRUVANANTHAPURAM-695314. 5. THE KIZHUVALAM SERVICE CO-OPERATIVE BANK LTD.NO.2405, MUDAPURAM.P.O, THIRUVANANTHAPURAM-695314, REPRESENTED BY ITS SECRETARY. WP(C).No. 4028 of 2016 (C) ----------------------------------- 6. VISWANATHAN NAIR,. S/O.NARAYANAKURUM, RESIDING AT 'SISIRAM', MUDAPURAM.P.O- 695314, THIRUVANANTHAPURAM DISTRICT, PRESIDENT, KIZHUVALAM SERVICE CO-OPERATIVE BANK LTD.NO.2405, MUDAPURAM.P.O, THIRUVANANTHAPURAM-695314. R5&6 BY ADV. SRI.V.G.ARUN R5&6 BY ADV. SRI.T.R.HARIKUMAR BY SPL. GOVERNMENT PLEADER SRI. D. SOMASUNDARAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4028 of 2016 (C) ------------------------------------- ## **APPENDIX** PETITIONERS' EXHIBITS : - ------------------------------------ EXHIBIT P1 : TRUE COPY OF THE RELEVANT EXTRACTS FROM THE BYE LAWS OF THE SOCIETY. EXHIBIT P1(a) : TRUE ENGLISH TRANSLATION OF EXHIBIT P1. EXHIBIT P2 : TRUE COPY OF THE ELECTION NOTIFICATION DATED 7-1-2016 ISSUED BY THE ELECTION COMMISSION EXHIBIT P2(a) : TRUE ENGLISH TRANSLATION OF EXHIBIT P2. - EXHIBIT P3 : TRUE COPY OF THE LIST OF PARTICIPANTS, IN THE GENERAL BODY HELD ON 17-8-2014. - EXHIBIT P4 : TRUE COPY OF THE FIR IN CRIME NO.75/2016 OF CHIRAYINKIL POLICE STATION. - EXHIBIT P5 : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE HASEENBAN. - EXHIBIT P5(a) : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE BINSAMOL.S - EXHIBIT P5(b) : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE JAMEELA KAREEM. - EXHIBIT P5(c) : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE NAZARUDDIN. EXHIBIT P5(d) : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE SHEELA. EXHIBIT P5(e) : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE K.SARALA EXHIBIT P5(f) : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE SAJI.M.A. EXHIBIT P5(g) : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE SUNDARAN.K. - EXHIBIT P5(h) : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE SHAHIDA BEEVI. EXHIBIT P5(I) : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE HASHIM.M EXHIBIT P5(j) : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE SUBAIDA BEEVI. WP(C).No. 4028 of 2016 (C) ------------------------------------- EXHIBIT P5(k) : TRUE COPY OF THE COMPLAINT SUBMITTED BY ONE GULTHAS. EXHIBIT P6 : TRUE COPY OF THE CERTIFICATE NO.B3-1498/16 ISSUED BY THE SECRETARY KIZHUVILAM GRAMA PANCHAYATH DATED 29-1-2016. - EXHIBIT P6(a) : TRUE COPY OF THE CERTIFICATE NO.B3-1498/16 ISSUED BY THE SECRETARY KIZHUVILAM GRAMA PANCHAYATH DATED 29-1-2016. - EXHIBIT P6(b) : TRUE COPY OF THE CERTIFICATE NO.342/16 DATED 29-1-2016 ISSUED BY THE AND THE VILLAGE OFFICER, KIZHUVILAM. - EXHIBIT P6(c) : TRUE COPY OF THE CERTIFICATE NO.344/16 DATED 29/1/2016 ISSUED BY THE AND THE VILLAGE OFFICER, KIZHUVILAM. - EXHIBIT P7 : TRUE COPY OF THE OBJECTION FILED BY THE 2ND PETITIONER BEFORE THE ELECTORAL OFFICER. - EXHIBIT P8 : TRUE COPY OF THE ORDER DATED 28-1-2016 PUBLISHING THE FINAL VOTERS LIST ISSUED BY THE ELECTORAL OFFICER. EXHIBIT P8(a) : TRUE COPY OF THE LIST OF VOTERS PUBLISHED AS PER EXT.P8 - EXHIBIT P8(b) : TRUE ENGLISH TRANSLATION OF RELEVANT EXTRACTS FROM EXHIBIT P8(a). EXHIBIT P9 : COPY OF FORM 32,REFERRED TO IN RULE 18 A OF THE RULES. RESPONDENTS' EXHIBITS : - --------------------------------------- - EXHIBIT R5(a) : TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF AMENDMENT DATED 30.11.1990 ALONG WITH RELEVANT PORTION OF THE BYELAW AMENDMENT ALONG WITH ENGLISH TRANSLATION. - EXHIBIT R5(b) : TRUE COPY OF THE APPLICATION FORM ALONG WITH ENGLISH TRANSLATION. - EXHIBIT R5(c) : TRUE COPY OF THE SKETCH WITH THE DEMARCATION OF WARDS. EXHIBIT R5(d) : TRUE COPY OF THE RELEVANT PAGES OF THE FORM 32 REGISTER. // TRUE COPY // P.A. TO JUDGE DMR/- ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) No. 4028 of 2016** ---------------------------------------- Dated this the 17[th] day of February, 2016 ## JUDGMENT ## **Facts:** The petitioners are the members of the sixth respondent Co-operative Society with a membership base of 23,000. The Society issued Exhibit P2 notification to hold the elections on 21.02.2016. The division of wards took place as per Exhibit P1 bye-laws. It has, after the commencement of the election process, published the final voters list containing 1182 names out of 23,000 members. 2. The petitioners have assailed both Exhibit P1 bye-laws and Exhibit P2 notification on these grounds: that the division of wards in Exhibit P1 bye-laws is not as per the law—namely, Section 28 of the Kerala Co-operative Societies Act (for short 'the Act'); that many eligible members have been excluded from the final voters list; that Exhibit P3 minutes of the general body meeting had the signatures of the members forged; and that the objections filed by the petitioners and W.P.(c) No. 4028 of 2016 2 other members as regards the executive members have not been properly considered by the Electoral Officer. 3. Ventilating the above grievances, the petitioners have filed the present writ petition. ## **Submissions:** ## **Petitioners’:** 4. The learned counsel for the petitioners has submitted that though Exhibit P1 bye-laws have contemplated the division of area of Co-operative Society into wards, the Managing Committee of the Society has simply enlisted 13 wards with no territorial demarcation. According to him, to make certain chosen members eligible to participate in the election, the Managing Committee has forged innumerable signatures in Exhibit P3 minutes of meeting of the general body. Acting on the complaint of the petitioners, the police have already registered Exhibit P4 FIR, however. 5. Drawing my attention to Exhibit P1 bye-laws, the learned counsel has specifically contended that the Society’s area of operation does not include ward Nos.2 and 11 of Kizhuvilam Panchayat. But, the voters list contains persons from those areas as well. It is one of the specific contentions of W.P.(c) No. 4028 of 2016 3 the learned counsel that despite the statutory mandate, the respondent Society has not been maintaining Form No.32 registers. 6. According to the learned counsel, because of the defects in the division of wards, even the final voters list has been vitiated. As regards the objection said to have been filed by the petitioners and 600 other members, the learned counsel would strenuously contend that the Electoral Officer did not consider the objections thus raised by the aggrieved persons. He has, according to the learned counsel, dealt with the objections in a perfunctory manner. 7. On the demarcation of the wards and the importance of the safeguards to be taken in that regard, the learned counsel has placed reliance on _Mathai v. State Co-operative Election Commission_[1] . ## **Respondents 5 & 6’s:** 8. Sri V.G. Arun, the learned counsel for the respondents 5 and 6, on the other hand, has submitted that the division of wards took place on 30.11.1990. And the Exhibit R5(a) certificate of registration of the amended bye-laws was issued in November 1990. Subsequently, to this day, six elections 1 2007 (2) KLT 789 W.P.(c) No. 4028 of 2016 4 were held. According to him, none of the members, including the petitioners, have raised any objection in the past 26 years. 9. Drawing my attention to Exhibit R5(c), the learned counsel has contended that the division of wards is in terms of Exhibit P1 bye-laws. The physical demarcation is as per the division of areas by the Grama Panchayat concerned. The learned counsel has singularly contended that, as is evident from Exhibit R5(b), the very application form for enrolment of the members requires the applicant to provide all the details concerning the area he lives in and the ward he belongs to. 10. Further, placing reliance on Exhibit R5(d), said to be an extract of Form No. 32 Register, the learned counsel would contend that against each name, his or her ward has been specified. In other words, the learned counsel has contended that the members have all along known about the wards assigned to them: either at the time of their admission as members or while their names were incorporated in Form No.32 Register. If any of the members had objections as regards any mis-description or erroneous entry of ward number, he or she would have objected long back. Succinctly stated, the members have all along been aware of the wards W.P.(c) No. 4028 of 2016 they belong to. 5 11. It is one of the grievances of the first petitioner that though he belongs to ward No.3, his name was reflected in ward No.2, which is reserved for a scheduled caste candidate. According to him, because of showing his name in the voters list under ward No.2, he has been deprived of a chance to contest as a general candidate. 12. Trying to refute the said contention, the learned counsel for the respondents 5 and 6 has submitted that the first petitioner's postal address does not determine the physical location of his residence. In elaboration, the learned counsel has submitted that the postal address usually reflects the residence in relation to the nearest Post Office. Since both ward Nos.2 and 3 are adjacent, there cannot be any watertight division between the two wards, which are part of the same Grama Panchayat. As such, there is every possibility that the Post Office may have been in one ward but covering another ward, in which the petitioner’s residence is. 13. At any rate, the learned counsel would contend that the petitioner's name has all along been reflected in ward No.2 and he ought to have raised his objection, if any, at the 6 W.P.(c) No. 4028 of 2016 earliest point in time. 14. Because the initial division of wards took place in 1990, with the efflux of time and the accretion of membership, the number of wards kept on increasing. According to the learned counsel, in the process of inevitable further division of wards, if there were to be any relocation or re-allotment of ward to a member, it is certainly known to the member well in advance. Accordingly, any belated challenge concerning the change in ward cannot be countenanced. 15. The learned counsel has also tried to repel the contentions that the Society has not been maintaining Form No.32 Register. The learned counsel says that Exhibit R5(d) is an extract of a part of the said register duly signed by the authorities concerned. On the issue of forging the signatures on Exhibit P3 minutes of meeting of the general body, the learned counsel would contend that the minutes were prepared on 17.08.2014, but the crime was registered on 15.01.2016 only with a view to frustrating the process of election. Summing up his submissions, the learned counsel has contended that the writ petition is devoid of merit and deserves to be dismissed. W.P.(c) No. 4028 of 2016 7 ## **Government’s:** 16. Sri D. Somasundaram, the learned Special Government Pleader, has submitted that the Exhibit P8 final voters list contained 1182 names and it is in terms of Section 16A of the Act and Rule 18A of the Rules. According to him, the Electoral Officer received 345 objections on 25.01.2016 the last date for receiving the objections as per Exhibit P1 notification. All those objections, as seen in Exhibit P5 series, are identical and stereotypic. 17. According to the learned Special Government Pleader, the Electoral Officer having carefully considered all the objections removed the names of two members found to be not eligible and added the names of two other persons, one of two is the first petitioner. Beyond that, the said official has not tinkered with the list. 18. The learned Special Government Pleader specifically avers that if at all the petitioners have any grievance regarding Exhibit P1 resolution, they ought to have tried to rescind it under Rule 176 by applying before the Registrar of the Co-operative Societies. In the end, the learned Special W.P.(c) No. 4028 of 2016 8 Government Pleader has contended that it is inadvisable to interdict the elections at this eleventh hour because the respondent authorities have taken all necessary steps to hold the election on 21.02.2016. ## **Reply:** 19. In reply, the learned counsel for the petitioners has submitted that though the initial division of wards was in 1990, the latest division was on 17.08.2014. According to him, first there were nine wards; later the number of wards was raised to eleven and finally to thirteen. Drawing my attention to paragraph 2 of the writ petition, the learned counsel would further contend that the petitioners along with others raised their objections in the general body meeting but to no avail. 20. Heard the learned counsel for the petitioners and the learned counsel for the respondents 5 and 6, as well as the learned Special Government Pleader, apart from perusing the record. ## **Issues:** 21. The issues to be determined are: (1) Is the division of wards, as has been reflected in Exhibit P1, in accordance with Section 28 of the Act? W.P.(c) No. 4028 of 2016 9 (2) Does Exhibit P8 final voters list suffer from any incurable infirmity so as to vitiate the election process undertaken by the authorities? (3) Have any members falling outside the area of operation of the Society been included in Exhibit P8 voters list? (4) Have any eligible members been excluded, thereby depriving them the chance of participating in the election? (5) Do the Exhibit P3 minutes of meeting contain any forged signatures for facilitating certain members to exercise their right to vote? ## **Discussion:** ## **Issue No:1** 22. Indeed, the initial division of wards may have taken place in November 1990, but the latest division took place on 17.08.2014. Now, the area of the Society stands divided into thirteen wards. It is the petitioners’ singular contention that the areas of wards mentioned in Exhibit P1 are not definite geographical locations with any specific demarcation. Absent any exercise by the general body to fix the physical boundaries of those wards, there is every possibility of their overlapping. It must have resulted in confusion in having the members W.P.(c) No. 4028 of 2016 10 divided as per the wards. 23. The countervailing submission by the respondents is that the physical division of wards has taken place in terms of Exhibit R5(c) map provided by the Grama Panchayat. 24. In the first blush, the submission made by the learned counsel for the petitioners appears to be quite attractive; however, on a deeper scrutiny, I am afraid, it fails to carry any conviction. First, Exhibit P1 simply mentions the names of thirteen wards. Once we examine those wards as per the division of areas, as has been reflected in Exhibit R5(c), it can be said with an element of certainty that there is a physical demarcation of the areas as well. Even otherwise, Exhibit P8 voters list has been published ward vice. 25. We can easily gather that the respondent Bank has all along had the practice of admitting its members on ward basis for the Exhibit R5(b) proforma application for membership clearly provides a column ( Column No.11). The column specifies the ward number of the candidate. Further fortification comes from the fact that Exhibit R5(d) Form No.32 also reflects the ward number of each candidate against his name. W.P.(c) No. 4028 of 2016 11 26. As has been rightly contended by the learned counsel for the respondents 5 and 6, had any member at any point in time any objection about the alleged mis-description of the ward, he would have raised an objection at the earliest. If at all, Exhibit P1 amended bye-laws are deficient in not containing the details of physical demarcation, nothing prevented the petitioners or any other aggrieved member to lay a proper challenge by invoking Rule 176 of the Rules. The fact, in this regard, remains that Exhibit P1 amendment of bye-laws took place on 17.08.2014. 27. The first petitioner has a specific grievance that though he belongs to ward number 3, Exhibit P8 voters list shows as if he belonged to ward number 2 reserved for a Scheduled Caste candidate. The first petitioner is said to be a member of the respondent Society for a long time. We cannot, however, be oblivious of the fact that at the time of his applying for admission into Society and also subsequently in Form No.32 Register, the details of his membership ought to have contained the ward he belongs to. Nothing prevented him from raising an objection in that regard. W.P.(c) No. 4028 of 2016 12 28. Viewed from another perspective, the objection by the first petitioner is essentially a disputed question of fact. He ought to have demonstrated before this Court to which ward he belonged to until Exhibit P3 resolution was passed by the general body deciding to further divide the wards. And at what time his name has been allotted to ward No.2, to his prejudice. 29. Absent any such material, this Court is unable to come to any definitive conclusion about the allocation of allegedly wrong ward to him. It is trite to observe that in a summary procedure under Article 226 of the Constitution, the petitioners cannot have the luxury of having a disputed question of fact determined, especially absent any cogent material evidence. 30. I am of the considered opinion that the wards have been divided with sufficient clarity as regards their territorial areas and that Exhibit P8 voters list bares testimony for the same. ## **Issue No:2** 31. Much emphasis has been laid on the fact that though W.P.(c) No. 4028 of 2016 13 the Society has 23,000 members, the final voters’ list contained only 1182 names. There has been a razing controversy about the members being active and inactive in terms of Section 16A of the Act read with Rule 18A of the Rules. The matter has already engaged the attention of a learned Full Bench of this Court. 32. On previous occasions, in numerous writ petitions involving various other societies, the Court has taken a consistent stand that the said societies may go ahead with the election, but the eventual outcome should be based on the decision to be rendered by the learned Full Bench. This Society being no exception, I hold that the election to be held under Exhibit P2 notification will be subservient to the declaration to be made by the learned Full Bench as regards the dichotomy of active and inactive members. ## **Issue Nos:3 & 4** 33. The learned counsel for the petitioners specifically contends that ward Nos.2 and 11 of Kizhuvilam Panchayat do not fall within the area of operation of the respondent Bank. But the members from the said area have also been included. The learned counsel for the respondents 5 and 6, on the other W.P.(c) No. 4028 of 2016 14 hand, has submitted that those wards were found mentioned way back in 1990 and that with the efflux of time, the very Grama Panchayat has had its wards subjected to demarcation on more than one occasion. According to him, now the territorial limits of ward Nos. 2 and 11 of the said Panchayat have certainly undergone drastic changes. At any rate, he has contended that no persons have been included from the area that does not belong to the respondent Society. 34. The learned Special Government Pleader has also submitted that after considering the objections filed by the members of the Society, the Electoral Officer has found only two members to be ineligible. 35. Be that as it may, it suffices if this Court observes that at any point in time if the petitioners come across an instance of ineligible members having been included in the voters list, they are always free to take recourse to Section 69 of the Act. In other words, they can file an election petition subject to other statutory parameters. ## **Issue No:5** 36. Indeed, Exhibit P3 minutes of meeting were drawn up in November 2014. Though the petitioners' complained, and W.P.(c) No. 4028 of 2016 15 based on that complaint a crime was registered, departmentally they have taken no steps questioning the legality or validity of the said minutes of meeting. They have raised their objections for the first time after Exhibit P2 notification. Any adjudication, much less a pronouncement, on this issue will come in the way of an impartial investigation by the police. It may be to the prejudice of either of the parties to the dispute. This Court, therefore, refrains from pronouncing on the issue of the legality of Exhibit P3 minutes of meeting. 37. The learned counsel for the petitioners has submitted that the demarcation of the wards should be by the general body and it cannot be delegated. In Mathai, this Court has held that delimitation of wards being a very vital aspect of the election, in the absence of an independent statutory body to do that, only the general body could discharge that function; the ‘Director Board’ in power could not be trusted with the said task. As seen from the record, Exhibit P1 enlists thirteen wards. If at all there is any physical demarcation, it was based on Exhibit R5(c) map supplied by the Grama Panchayat. Further, Exhibit P1 voters list has the names of the members reflected as per the wards. I am afraid, this exercise cannot W.P.(c) No. 4028 of 2016 16 be termed as any delegation by the general body to the Managing Committee for physical demarcation of the wards. 38. It may be true that when the amendment was effected, ward nos.2 & 11 might have fallen in Kizhuvilam Panchayat. Subsequently, with the delimitation of wards in the Panchayat, the ward numbers may have changed. For example, the Kizhuvilam Panchayat with only 12 wards in 1995 became a Panchayat with 15 wards in 2000; 19 wards in 2005; and 20 wards in 2010. 39. Ward Nos.2 and 11, which were in existence when Exhibit R5(a) amendment was brought about were the Adeekkalam and Aandoor wards. Even now the area of operation of the fifth respondent society is confined to the Kizhuvilam Panchayat. Still, if the petitioners persist with their plea that there has been a wrong inclusion of certain extraneous wards, they are, in my view, not remedy less. They have an efficacious alternative remedy of raising an election dispute at an appropriate time for it is essentially a disputed question of fact. W.P.(c) No. 4028 of 2016 17 In the facts and circumstances, this Court dismisses the writ petition. No order on costs. **DAMA SESHADRI NAIDU JUDGE** DMR/-