High Court of KeralaSingle Judge2008-07-21Writ petition allowed; Nomination to be treated...

AMBATT ASOKAN v. OACHIRA SERVICE CO.OP.BANK LTD. & THE RETURNING OFFICER

Case / Petition Number:WP(C) No. 21526 of 2008 (K)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thottathil B. Radhakrishnan
Judgment Date: 2008-07-21
Court Decision / Holding: Writ petition allowed; rejection of nomination quashed; petitioner to be treated as valid candidate and included in the list; election to be conducted accordingly; no costs.
Final Disposition: Writ petition allowed; Nomination to be treated as valid; petitioner to contest in the election; election to be conducted accordingly; no costs.

Parties to the Case

Appellants / Petitioners

Ambatt Asokan

Respondents

Oachira Service Co‑op Bank Ltd.
The Returning Officer

Legal Representation & Advocates

Counsels for Petitioners

• Sri D. Somasundaram

Counsels for Respondents

• Sri P. N. Mohananan
• Smt. Anu Sivaraman

Case Synopsis & Summary

Ambatt Asokan, a longstanding member since 1979 of the Oachira Service Co-operative Bank, challenged the rejection of his nomination for the bank's committee in the ensuing election. The ground for rejection was dual membership: Asokan also belonged to the Klappana Service Co-operative Bank since December 1997. He argued that the Kerala Co‑operative Societies Act 1969 and Rules 16, 44 do not disqualify dual members and that Rule 27(2) merely contemplates removal for such an infraction and does not deprive him of membership or voting rights. The Respondents—Oachira Service Co‑op Bank and the Returning Officer—contended that the Returning Officer has jurisdiction to decide on qualification (citing Vijayakumar v. Joint Registrar) and that dual membership could lead to disqualification under relevant provisions; they relied on Natarajan v. Returning Officer to argue that removal was the remedy. The High Court analyzed Section 16, 19, 20, and the Rules to determine if dual membership constitutes a bar to contest or mere membership rights, noting no bye-law prohibited dual membership. It concluded that dual membership is not a ground of automatic disqualification and quashed the nomination rejection, directing that Asokan be treated as a valid candidate and included in the electoral list. The petition was allowed with no costs.

Provisions of Law Cited

Kerala Co-operative Societies Act, 1969 - Section 16, Section 19, Section 20, Section 28(2)Kerala Co-operative Societies Rules, 1969 - Rule 16, Rule 27(1), Rule 27(2), Rule 35A(6)(d), Rule 44(1)

Legal Doctrines & Maxims

Dual membership is not a ground of disqualification for contesting elections to a cooperative society's committee unless prohibited by bye-laws.
The Returning Officer has jurisdiction to decide on the question of qualification.
Where bye-laws are silent, dual membership does not automatically strip voting rights or membership.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submitted that dual membership is not a disqualification under the Kerala Co-operative Societies Act, 1969 or Rules (Rules 16, 44) or Section 28(2). He contended that Rule 27(2) imposes a consequence of removal, but does not strip membership or voting rights; there is no bye-law prohibiting dual membership. The jurisdiction to decide qualification lies with the court/RO only to the extent permitted by law, and where no disqualification exists, nomination should stand. The petitioner also relied on prior judgments (Natarajan v. Returning Officer) to support that dual membership cannot bar candidacy absent bye-law prohibitions.

Contentions of Respondents

The respondents argued that the Returning Officer has jurisdiction to determine qualification and that dual membership may render a person ineligible to vote or hold office, citing Vijayakumar v. Joint Registrar. They relied on Natarajan v. Returning Officer to support removal of a dual member and argued that the nomination could be disqualified under Rule 35A(6)(d) if the member is ineligible to vote. They contended that dual membership is a potential ground for disqualification under the Act and Rules and that the Registrar may remove a member under Rule 27(2).

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Vijayakumar v. Joint Registrar	1996(1) KLT 285	Positive	Used to support the proposition that the Returning Officer has jurisdiction to decide on qualification.
Natarajan v. Returning Officer	1997 (2) KLT 253	Positive	Supports the proposition that dual membership is not a ground of disqualification from contesting, absent bye-law prohibition.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 WP(C).No. 21526 of 2008(K) -------------------------- PETITIONER: ------------ AMBATT ASOKAN, AMBATT HOUSE VALIYAKULANGARA, OOCHIRA PO., KOLLAM BY ADV. SRI.D.SOMASUNDARAM RESPONDENTS: ------------- 1. OACHIRA SERVICE CO.OP.BANK LTD., 1391 VALIYAKULANGARA , OACHIRA PO., REP. BY ITS SECRETARY ## 2. THE RETURNING OFFICER, OACHIRA SERVICE CO.OP.BANK LTD.NO.1391 VALIYAKULANGARA, OACHIRA PO., KOLLAM. BY ADV. SRI.P.N.MOHANAN FOR R1 BY SR.G.P. SMT. ANU SIVARAMAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.21526/2008 ## APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE REPRESENTATION DATED 15.7.2008. EXT.P2 COPY OF THE NOTIFICATION. EXT.P3 COPY OF THE RELEVANT PAGES OF THE VOTERS LIST OF THE ENSUING ELECTION. /TRUE COPY/ cl ## **THOTTATHIL B. RADHAKRISHNAN,J.** **--------------------------------------------W.P.(C)NO.21526 OF 2008-K** **---------------------------------------------Dated this the 21[st] day of July, 2008.** ## **JUDGMENT** The petitioner challenges rejection of his nomination as a candidate for the election to the committee of the first respondent Co-operative Bank. He became a member of that Bank on 18.8.1979. It is stated that he had been a member of its committee repeatedly, at least on three occasions. The rejection of his nomination for the ensuing election is on the ground that he holds dual membership in as much as, from 12.12.1997, he had been a member of the Klappana Service Co-operative Bank, a society of the same type as that of the first respondent. These facts are not in dispute. 2. The petitioner contends that in terms of Rules 16 and 44 of the Kerala Co-operative Societies Rules, 1969, the "Rules", for short, and in terms of Section 28 (2) of the Kerala Co-operative Societies Act, 1969, for short, the "Act", dual membership is not a disqualification and the only action that could be taken against the petitioner is his removal from membership in terms of Rule 27(2) of W.P.(C)No.21526/08 . 2 the Rules. 3. Per contra, the learned Senior Government Pleader argued that this Court has laid down in **Vijayakumar v. Joint Registrar** [1996(1) KLT 285] that the returning officer is within jurisdiction to decide on the question of qualification and that, in terms of Rule 35 A (6)(d), no person who is ineligible to vote in the election, shall be nominated as a candidate for the election. 4. The learned counsel appearing for the first respondent, which is now under an administrator committee, argued that, even applying the ratio of the decision in **Natarajan v. Returning Officer** [1997 (2) KLT 253], on facts, the liability is for removal from the rolls of the first respondent society since that was the society, of the petitioner became a member, without the previous sanction of the Registrar in terms of Rule 27(1) of the Rules. 5. Going by Section 16 of the Act, the membership of a person to a society depends upon the decision of the committee of the society and the right to vote in terms of Section 20 can be exercised only after he has made such payments to the society, in respect W.P.(C)No.21526/08 . 3 of membership, or has acquired such interest in the society, as may be prescribed by the rules or the bye-laws, going by Section 19 of the Act. Rule 35 A (6) (d) referred to by the learned Senior Government Pleader provides that no member shall be nominated as a candidate for election, if he is ineligible to vote in the election. The eligibility to vote in the election could be considered by the returning officer by applying the ratio in **Vijayakumar's** case ( _supra_ ). Rule 44(1) does not provide dual membership as a ground for disqualification of membership of the committee. It was therefore that, it was held, in **Natarajan's** case ( _supra_ ), among other things, that dual membership is not a ground of disqualification from contesting in the election or to become a member of the committee, to which proposition, I am in complete agreement. Not only that, so long as there is no provision in the bye-laws prohibiting dual membership, there is no infraction of the bye-laws as regards the matter of granting membership. This is what has been stated in the opening paragraph in **Natarajan's** case, before the learned Judge proceeded to quote Rule 27(2) of the Rules in that judgment. No provision of the bye-laws of the first respondent Society prohibiting dual membership is pointed out. As it was in **Natarajan's** case, in the case in hand also, the W.P.(C)No.21526/08 . 4 petitioner's name was included in the draft voters' list; it was not objected to by anybody and the final voters' list was published, on the strength of which the nomination has been made. 6. Adverting to Rule 27, it can be seen that sub-rule (2) thereof prescribes the liability for the infraction of the provisions in sub-rule (1) and therefore, the legal prescription as to law shall be only that consequence, particularly when such consequence is deprivation of membership in a society. The provision in sub-rule (2) obliging a society to act on a written requisition from the Registrar and to remove that person with dual membership, proceeds on the legislative intendment that he continues as a member till such removal. This means that his membership would continue to be otherwise valid and the removal can be triggered by the Registrar directing the Society to remove such a person from membership. Abundant support to this conclusion is also available in the provision in Section 28(2)(a) that a person shall be disqualified for appointment as a member of a committee if he is a member of the committee of another society of the same type. By providing such a statutory embargo, only as regards the holding of dual offices as member of the committees of two societies of the same W.P.(C)No.21526/08 . 5 type, the intendment of the legislature is quite clear, that the mere fact of dual membership is not intended to deprive a person of his entitlement to be a member with voting rights. This can be easily seen in the manner in which the disqualifications prescribed in Section 28(2)(a) are couched. Therefore, as noticed in **Natarajan's** case, there is no provision in the Act or the Rules which disqualifies a person on the ground of dual membership, from being a candidate for the election to the committee of one of those societies unless he is a member of the committee of another society of the same type. The petitioner, undisputedly, is not the member of the committee of any other society. 7. For the forgoing reasons, this writ petition succeeds and the rejection of the nomination of the petitioner is liable to be quashed and he has to be permitted to contest in the election as a candidate. In the result, this writ petition is allowed quashing the rejection of the petitioner's nomination for the ensuing election to the committee of the first respondent society and it is directed that his nomination shall be treated as valid and he shall be included in W.P.(C)No.21526/08 . **==> picture [7 x 9] intentionally omitted <==** the list of candidates and the election conducted accordingly. No costs. **THOTTATHIL B. RADHAKRISHNAN, JUDGE.** cl/21.07.