A.N. Babu, Sasidharan Menon, Venu K.A., Sujatha S. Menon and Janaki v. The Kerala State Co-operative Election Commission, The Electoral Officer, The Returning Officer, The Joint Registrar of Co-operative Societies (General), Ernakulam, and Keechery Service Co-operative Bank Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 11TH DAY OF NOVEMBER 2013/20TH KARTHIKA, 1935** ## **WP(C).No. 26623 of 2013 (C)** **----------------------------** **PETITIONER(S): --------------------------** **1. A.N.BABU, MEMBER NO. 12113, KEECHERY SERVICE CO-OPERATIVE BANK LIMITED NO. 668, KULAYATTIKARA P.O., ERNAKULAM, RESIDING AT ATHIKAPADAVIL, KULAYETTIKARA P.O., ARAYANKAVU, ERNAKULAM DISTRICT.** **2. SASIDHARA MENON, MEMBER NO. 12179, KEECHERY SERVICE CO-OPERATIVE BANK LIMITED NO. 668, KULAYATTIKARA P.O., ERNAKULAM, RESIDING AT IKKUMPURATH HOUSE, THOTTARA, ERNAKULAM DISTRICT.** **3. VENU K.A., MEMBER NO. 12189, KEECHERY SERVICE CO-OPERATIVE BANK LIMITED NO. 668, KULAYATTIKARA P.O., ERNAKULAM, RESIDING AT KUNNUMPURATHU, PUTHUSSERY, ERNAKULAM DISTRICT.** **4. SUJATHA S. MENON, MEMBER NO. 12718, KEECHERY SERVICE CO-OPERATIVE BANK LIMITED NO. 668, KULAYATTIKARA P.O., ERNAKULAM, RESIDING AT IKKUMPURATH HOUSE, THOTTARA, ERNAKULAM DISTRICT.** **5. JANAKI, MEMBER NO. 12188, KEECHERY SERVICE CO-OPERATIVE BANK LIMITED NO. 668, KULAYATTIKARA P.O., ERNAKULAM, RESIDING AT KUNNUMPURATH HOUSE, PUTHUVASSERY, ERNAKULAM DISTRICT.** **BY ADV. SRI.P.C.SASIDHARAN** **.2/-** **Kss** **..2....** ## **WPC.NO.26623/2013(C)** **RESPONDENT(S): ----------------------------** **1. THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, OFFICE OF THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM - 695 001.** **2. THE ELECTORAL OFFICER, APPOINTED FOR CONDUCT OF ELECTION TO THE MANAGING COMMITTEE OF THE KEECHERY SERVICE CO-OPERATIVE BANK LIMITED NO. 668, KULAYATTIKARA P.O., ERNAKULAM - 682 315. (ASSISTANT REGISTRAR, KANAYANNUR, ERNAKULAM DISTRICT).** **3. THE RETURNING OFFICER, APPOINTED FOR CONDUCT OF ELECTION TO THE MANAGING COMMITTEE OF THE KEECHERY SERVICE CO-OPERATIVE BANK LIMITED NO. 668, KULAYATTIKARA P.O., ERNAKULAM. (THE UNIT INSPECTOR ATTACHED TO THE OFFICE OF THE ASSISTANT REGISTRAR, KANAYANNUR, ERNAKULAM DISTRICT - 682 016).** **4. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ERNAKULAM - 682 016.** **5. THE KEECHERY SERVICE CO-OPERATIVE BANK LIMITED NO. 668, KULAYATTIKARA P.O., ERNAKULAM - 682 315, REPRESENTED BY THE SECRETARY.** ## **R1 TO R4 BY SPECIAL GOVERNMENT PLEADER SRI.D.SOMASUNDARAM** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WP(C).No. 26623 of 2013 (C)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **---------------------------------------** **EXHIBIT-P1-TRUE COPIES OF THE IDENTITY CARDS ISSUED TO THE PETITIONERS.** **EXHIBIT-P2-TRUE COPY OF THE PROCEEDINGS DATED 11/04/2013.** **EXHIBIT-P3-TRUE COPY OF THE PROCEEDINGS ISSUED BY THE IST RESPONDENT DATED 01/10/2013.** **EXHIBIT-P4-TRUE COPY OF THE ELECTION NOTIFICATION.** **EXHIBIT-P5-TRUE COPY OF THE FIRST AND LAST PAGE OF THE DRAFT VOTERS LIST.** **EXHIBIT-P6-TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 19/10/2013.** **EXHIBIT-P7-TRUE COPY OF THE RELEVANT PORTION OF THE ANNUAL REPORT SUBMITTED BY THE THEN MANAGING COMMITTEE PREPARED BASED ON THE AUDIT REPORT.** ## **RESPONDENT(S)' ANNEXURES:** **-----------------------------------------------** **ANNEXURE R2(a): TRUE COPY OF ELECTION NOTIFICATION DATED 1/10/2013. ANNEXURE R2(b): TRUE COPY OF THE RELEVANT PORTION OF THE BYE-LAW.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## K. Vinod Chandran, J ---------------------------------------- W.P.(C).No.26623 of 2013-C ---------------------------------------Dated this the 11[th] day of November, 2013 ## **JUDGMENT** The petitioners are the members of the 5[th] respondent Co-operative Bank, which is a Class-I Special Grade Society. The admitted facts are that the term of the Managing Committee expired without elections being conducted and an Administrator was appointed, who was later replaced by an Administrative Committee and then again by an Administrator. The Administrator, later appointed, adopted a resolution for conduct of election and a notification was also issued, as is evidenced by Exhibit P4. The petitioners are aggrieved by Exhibit P6 order of the Electoral Officer, by which 504 members, having membership Nos.12087 to 12590, were excluded from the final voters list. The petitioners are not at present assailing the other deletions from the voters list made as per Exhibit P6. 2. The deletion of 504 members, as is evidenced by Exhibit P6, is for the reason that these members were enrolled in excess of the authorized share capital of the Society. The **- 2 -** WP(C).No.26623 of 2013 authorized share capital of the Society is Rs.49 lakhs and the individual share value Rs.5/-. The membership granted from 12087 to 12590 were said to be over and above the authorized share capital. 3. The learned counsel for the petitioners would take me through Section 20 of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as “the Act”) and Rules 16 and 35A of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as “the Rules”) to contend that the membership in a Society confers on the individual a substantive right to participate in the election and exercise the franchise by virtue of Section 20 and Rule 16. Referring to Rule 35A, specifically the powers of the Electoral Officer referred to in sub-rule (4), the learned counsel contends that as per the said sub-rule, it is the duty of the Chief Executive of the Society to prepare and update the list as per the Rules and submit the voters list duly approved by the Committee to the Electoral Officer. The Electoral Officer is enjoined upon with the duty to publish a primary voters list and call for objections and consider the same before publishing the final voters list. The learned counsel would rely on the decision reported in _**Vijayakumar v. Joint Registrar**_ **[1996 (1) KLT 285]** to contend that what is intended while considering the objections to the draft voters list is a summary enquiry; to be satisfied about the **- 3 -** WP(C).No.26623 of 2013 sustainability or otherwise of the objections, provided the objections are specific and definite as against individual members, which has to be subjected to verification with relevant materials. 4. A roving enquiry, even according to the Division Bench, was not contemplated. In the instant case, it was the specific case that there was no objection regarding granting of membership over and above the authorized share capital and the Electoral Officer has _suo motu_ considered the same. A reading of Exhibit P6, according to the counsel, would show that it is on the instigation of the Joint Registrar (General), who referred a complaint filed before him, that the Electoral Officer has taken the said action. The learned counsel would also point out that going by the Electoral Roll, there are only 12590 members and multiplying the same with the share value of Rs.5/-, it cannot at all exceed the authorized share capital which comes to Rs.49 lakhs. In fact it is the specific averment that on a member availing a loan from the Society, a specific percentage is set apart to the share capital, which deduction is made from the loan amount disbursed, to maintain the ratio with respect to the share capital and the liability of the Society. This does not confer any further voting right on the members, nor does it efface the membership already granted to the individual. This deduction made is the only reason for the books reflecting a share **- 4 -** WP(C).No.26623 of 2013 capital exceeding the authorized share capital, is the contention. 5. The learned Special Government Pleader (Co-operation), however, would assert that it was on a valid complaint raised by three members of the Society that the Electoral Officer deleted the 504 names. The learned Special Government Pleader would also contend that on the strength of the decision in _**Antony v. Irinjalakuda Town Co-operative Bank Ltd.**_ **[1996 (1) KLT 27],** that any person admitted to the membership of the Society beyond the authorized share capital would not be deemed to be members and would not be entitled to exercise the right to franchise conferred on the members. The learned Special Government Pleader relied on the decision in _**Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Gugdha Utpadak Sanstha v. State of Maharashtra**_ **[(2001) 8 SCC 509]** to caution this Court from interfering with the elections, which process has already commenced. Any challenge against the elections is to be left to be agitated in a validly filed Election Petition, argues the State. 6. The learned Special Government Pleader has produced the files of the Electoral Officer to substantiate the contention of the Electoral Officer that a complaint with respect to members having been admitted in excess of the authorized share capital was received by the Electoral Officer within the time prescribed in the election notification. I **- 5 -** WP(C).No.26623 of 2013 have perused the files and it has come to my notice that a complaint dated 11.10.2013 from K.S.Sabu, K.V.Saju and Jayasree Padmakaran is available in the files, raising the contention of membership having exceeded the authorized share capital. However, it is to be specifically mentioned that the same is a photo copy and not the original complaint as such. On a further perusal of the files, it is seen that the Joint Registrar (General) of Ernakulam had, by covering letter dated 23.09.2013, addressed the Assistant Registrar (General), Kanayannur and forwarded a complaint filed by the very same persons dated 09.09.2013. It is pertinent that the Assistant Registrar (General), Kanayannur, who received that covering letter, is the Electoral Officer in the instant case. The contention of an objection having been received by the Electoral Officer is belied further on the specific statements made in Exhibit P6. In Exhibit P6, reference No.3 is the complaint dated 09.09.2013 of the 3 members above referred and reference No.5 is the covering letter of the Joint Registrar (General) dated 23.09.2013. It is very evident that the said complaint was treated as the objection by the Electoral Officer. That no objection was received from the 3 members by the Electoral Officer, is further evidenced by the fact that it is a mere photo copy of the alleged complaint dated 11.10.2013 that is available in the files. If such an objection had been received, there was **- 6 -** WP(C).No.26623 of 2013 absolutely no reason why the Joint Registrar's covering letter dated 23.09.2013 was referred to in Exhibit P6, without referring to the objection dated 11.10.2013. It is disconcerting that the officers of the Department, appointed as Electoral Officers, embroil themselves in the politics of such elections. In any event, on a perusal of the files and on a reading of Exhibit P6 order, it is evidently clear that the overzealous Electoral Officer has acted beyond jurisdiction conferred on the Electoral Officer, by the Act and the Rules, to delete 504 members from the final voters list. 7. The contention of the petitioner that the authorized share capital has not at all been exceeded, is also of persuasive import, going by the number of members in the draft voters list. Admittedly only 12509 members are enrolled in the Bank and the share value being Rs.5/-, it cannot by any stretch of imagination be said to be beyond the authorized share capital, which is at Rs.49 lakhs. _**Vijayakumar**_ ( _supra_ ) cautions the Returning Officer from making any roving enquiry into the objections filed and also found that the objection should be definite and determinative against individual members. A reading of sub-rule (4) of Rule 35A also does not indicate any _suo motu_ powers conferred on the Electoral Officer to verify the membership and in that process, exclude members from the voters list. In the instant case, it has clearly come **- 7 -** WP(C).No.26623 of 2013 out that there was no objection filed before the Electoral Officer and the Electoral Officer acted upon an objection forwarded to her by the Joint Registrar (General) on a previous date, before the draft voters list was submitted to her, and received not in her capacity of Electoral Officer. 8. _**Antony**_ ( _supra_ ) considered two issues as to whether a Co-operative Society could amend its bye-laws retrospectively to increase its share capital and regularise the membership of persons from such retrospective date of amendment; and whether such persons who were admitted without enhancing the authorized share capital could participate and vote in the General Body meeting for such retrospective amendment. The Court found that the Society, or more specifically its General Body, had powers to retrospectively amend its bye-laws, enhancing the authorized share capital and if such retrospective amendments were made, the persons who had been admitted to the membership could also be considered as valid members. However, it was categorically found that a General Body for such retrospective amendment could not be permitted to be represented by the members who were admitted over and above the authorized share capital. Till a retrospective amendment was made enhancing the share capital, it was declared that those members enrolled in excess of the original share capital shall not be entitled to **- 8 -** WP(C).No.26623 of 2013 exercise any rights conferred on members who were admitted within the authorized share capital. On facts, the said decision would not apply. 9. In the instant case there is no question of any retrospective amendment; nor is it pleaded that the authorized share capital is sought to be enhanced. The specific averment, as was noticed, is that the memberships were only within the authorized share capital and it is merely on a play of the figures reflected in the books of accounts that such a decision as is disclosed from Exhibit P6 has resulted. _**Shri Sant Sadguru Janardan Swami**_ ( _supra_ ) held, that election process should not be stayed after the process has been set in motion even if there is some alleged illegality or breach of rules in preparing the electoral roll. Any alleged illegality or breach of Rules, while preparing the electoral roll, was held to be the cause of action for a valid challenge in an Election Petition. The High Court, in the said case, on facts was held to have rightly declined the writ petition under Article 226 when there was an alternate remedy, which was not exhausted. 10. In the instant case, it is not an interdiction of the election process that the petitioner prays for. The election is scheduled to be held on 17.11.2013 and the contention is that the Electoral **- 9 -** WP(C).No.26623 of 2013 Officer, by Exhibit P6, has acted without jurisdiction and in excess of the powers conferred on the officer, and has deleted 504 persons from the draft voters list, who were, in fact, eligible members entitled to vote in the elections. The facts and circumstances detailed above is a pointer to the fact that the Electoral Officer's actions were palpably wrong. The established facts are reasonably straight forward and calls for no adjudication. In such circumstance, this Court would be fully justified in averting the blatant and obvious illegality. This Court draws support from a Division Bench decision of this Court in _**K.Pankajaksha Panicker v. N.Venugopalan Nair**_ **[1994 (2) KLJ 8.** 11. On the strength of the findings above, Exhibit P6, in so far as it deletes 504 members, is set aside. It is declared that the members having membership Nos.12087 to 12590, being A-Class members, shall be entitled to exercise their franchise in the election notified as per Exhibit P4. The Electoral Officer shall immediately prepare and publish a final voters list including the said 504 members. The writ petition is allowed. No costs. Sd/K.Vinod Chandran Judge. vku/- ( true copy )