Anilkumar G. & Salim C.P. v. State Co-operative Election Commission & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 WP(C) NO. 25142 OF 2024 ``` ## **`PETITIONERS:`** ``` 1ANILKUMAR G. AGED 49 YEARS S/O. GANGADHARAN, ANACKANATTU HOUSE, MANIYARANKUDY P.O., IDUKKI DISTRICT - 685602, MEMBER, VAZHATHOPE SERVICE CO-OPERATIVE BANK LTD. NO.E.202, THADIYAMPAD, IDUKKI DISTRICT - 685602 2SALIM C.P. AGED 54 YEARS S/O. PAREETH, CHERACKALTHAZHATH, MANIYARAMKUDY P.O., IDUKKI 685602, MEMBER, VAZHATHOPE SERVICE CO-OPERATIVE BANK LTD. NO. E.202, THADIYAMPAD, IDUKKI DISTRICT, PIN – 685602 ``` ``` BY ADVS. NISHA GEORGE GEORGE POONTHOTTAM (SR.) ANSHIN K.K ``` ## **`RESPONDENTS:`** - **`1 THE STATE CO-OPERATIVE ELECTION COMMISSION 3RD FLOOR, CO BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN - 695033`** - **`2 THE ELECTORAL OFFICER ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, ELECTION TO THE MANAGING COMMITTEE OF VAZHATHOPE SERVICE CO-OPERATIVE BANK LTD. NO. E.202, THADIYAMPAD, IDUKKI DISTRICT - 685602`** ``` WP(C) No.25142 of 2024 ``` ``` 2 ``` ``` 3THE RETURNING OFFICER UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR (GENERAL), IDUKKI, ELECTION TO THE MANAGING COMMITTEE OF VAZHATHOPE SERVICE CO-OPERATIVE BANK LTD. NO. E.202, THADIYAMPAD, IDUKKI DISTRICT, PIN - 685602 ``` ``` 4THE VAZHATHOPE SERVICE CO-OPERATIVE BANK LTD NO.E.202, VAZHATHOPE, THADIYAMPADU, IDUKKI DISTRICT, REPRESENTED BY ITS SECRETARY, PIN – 685602 ``` ``` BY ADVS. JOICE GEORGE-R4 LIJI.J.VADAKEDOM(K/614/1993) C.M. NAZAR, STANDING COUNSEL FOR R1 TO R3 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.25142 of 2024 ``` ``` 3 ``` ## JUDGMENT Dated this the 17[th] day of July, 2024 The petitioners are members of the 4[th] respondent-Bank. The 1[st] petitioner is the candidate in the election to the Managing Committee of the 4[th] respondent-Bank scheduled to be held on 21.07.2024. 2. The Managing Committee of the 4[th] respondentBank has convened a meeting on 20.05.2024 and decided to enroll persons, who are residing outside the area of operation of the Bank as members of the Society. The Managing Committee of the 4[th] respondent-Bank enrolled 598 persons, who are residing outside the area of operation of the Bank as members of the Bank. After publishing the preliminary voters list, the 2[nd] petitioner has raised an objection regarding the illegal enrollment of persons, who are residing outside the area of operation of the Bank as members. However, the 2[nd] ``` WP(C) No.25142 of 2024 ``` ``` 4 ``` respondent without verifying the records available in the Bank, had removed only 9 members from the preliminary voters list and published the final voters list. 3. As per the final voters list, the illegally enrolled 589 members are still included in the final voters list. They are not eligible to continue as the members of the Bank. Aggrieved by this, the 2[nd] petitioner has submitted a complaint before the 2[nd] respondent to remove the illegally enrolled persons from the final voters list. However, without removing the members from the final voters list, respondents 1 to 3 are proceeding with the election process. It is the duty of the 2[nd] respondent to remove the illegally enrolled members from the final voters list, contends the petitioners. 4. Standing Counsel entered appearance on behalf of the 4[th] respondent and submitted that since Ext.P2 election notification has already been published, any grievance relating to the conduct of election will have to be challenged ``` WP(C) No.25142 of 2024 ``` ``` 5 ``` by the petitioners invoking the provisions of Section 69 of the Kerala Co-operative Societies Act, 1969. The Standing Counsel representing the 1[st] respondent submitted that on the basis of complaints submitted by the petitioners, eight persons who were found ineligible and who were in the voters list have been removed. 5. I have heard the learned counsel for the petitioners and the respective learned Standing Counsel representing the respondents. 6. The grievance of the petitioners is regarding alleged illegal induction of 589 members, who were enrolled by the Managing Committee on 20.05.2024. The election notification was published as per Ext.P2 on 18.06.2024. 7. Be that as it may, a Division Bench of this Court considered the issue relating to the objections regarding illegal induction of members on the eve of elections in Denny V.P. v. Joint Registrar of Co-operative Societies ``` WP(C) No.25142 of 2024 ``` ``` 6 ``` (General) and others [2019 KHC 4954]. This Court held that if there is breach of rules or non compliance of any mandatory provisions, such action should be challenged under Rule 81(d)(iv) of the Kerala Co-operative Societies Rules by means of an Election Petition. Merely because of illegality in the matter of preparation of electoral roll including inclusion of ineligible persons is alleged and the materials before the Electoral Officer are insufficient to determine the question of ineligibility of members to remain as voters, Courts would not be justified in interfering with the election process once it is started since such illegality, if established later, could be dealt with appropriately in an Election Petition. 8. In view of the judgment of this Court in Denny V.P. (supra), the prayer of the petitioners to remove the illegally enrolled 589 members cannot be entertained at this stage. However, taking into consideration the facts of the case, the writ petition is disposed of directing the 3[rd] respondent- ``` 7 ``` ``` WP(C) No.25142 of 2024 ``` Returning Officer to ensure that the votes of 589 members enrolled on 20.05.2024 by the Managing Committee included in the final voter’s list, who are allegedly ineligible and against whom already complaints have been made, are put in a separate box. After the election, the result can be published counting those votes also in accordance with law. Needless to say that the grievance with respect to elections can appropriately be taken up by the petitioners in accordance with law. Sd/- N.NAGARESH JUDGE spk ``` WP(C) No.25142 of 2024 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 25142/2024`** ## **`PETITIONER EXHIBITS`** ``` Exhibit-P1TRUE COPY OF THE RELEVANT PORTION OF THE BYE LAW OF THE 4TH RESPONDENT BANK Exhibit-P2TRUE COPY OF THE ELECTION NOTIFICATION BEARING NO.01/357/2024/E(1) S.C.E.C DATED 18.06.2024 ISSUED BY THE 1ST RESPONDENT NOTIFYING ELECTION TO THE MANAGING COMMITTEE OF THE 4TH RESPONDENT BANK Exhibit-P3TRUE COPY OF THE REPLY DATED 27.06.2024 GIVEN BY THE 2ND RESPONDENT TO THE 2ND PETITIONER Exhibit-P4TRUE COPY OF THE COMPLAINT DATED 02.07.2024 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT Exhibit-P5TRUE COPY OF THE CANDIDATE LIST IN THE ELECTION TO THE MANAGING COMMITTEE OF THE MARIYAPURAM SERVICE CO-OPERATIVE BANK PUBLISHED ON 13.09.2023 ```