Babu T. and Others v. Enathu Service Co-Operative Bank Ltd. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 29TH DAY OF JULY 2019 / 7TH SRAVANA, 1941** ## **WP(C).No.18773 of 2019** ## **PETITIONER/S:** - **1 BABU T., AGED 51 YEARS S/O THANKACHAN, NEETHU BHAVANAM, KAITHAPPARAMPU P.O.ENATHU (VIA), ADDOR, PATHANAMTHITTA DISTRICT-691 526.** - **2 SHALI S, AGED 43 YEARS W/O MANIPRASAD, THANATHAYYATHU, KAITHAPPARAMPU P.O.ENATHU (VIA), ADDOR, PATHANAMTHITTA DISTRICT-691 526.** - **3 JESSY S, AGED 38 YEARS W/O SELVARAJ, CHARUVILA PUTHENVEEDU, KAITHAPPARAMPU P.O.ENATHU (VIA), ADDOR, PATHANAMTHITTA DISTRICT-691 526.** - **4 KRISHNAKUMARI, AGED 48 YEARS W/O CHANDRASEKHARA KURUP, THENGUMTHARAYIL, KAITHAPPARAMPU P.O.ENATHU (VIA), ADDOR, PATHANAMTHITTA DISTRICT-691 526.** - **5 SAMKUTTY, AGED 49 YEARS S/O GHEEVARGHESE CHACKO, KOIPALLIL, KAITHAPPARAMPU P.O.ENATHU (VIA), ADDOR, PATHANAMTHITTA DISTRICT-691 526.** - **6 STANLEY P JOSE, AGED 26 YEARS S/O JOSEMON P.T, PULIMOOTTIL HOUSE, KAITHAPPARAMPU P.O.ENATHU (VIA), ADDOR, PATHANAMTHITTA DISTRICT-691 526.** - **7 MONACHEN M, AGED 50 YEARS S/O MATHEW, VALUPARAMBIL HOUSE, . KAITHAPPARAMPU P.O.ENATHU (VIA), ADDOR, PATHANAMTHITTA DISTRICT-691 526.** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SRI.ADITHYA RAJEEV SRI.ARJUN RAGHAVAN SRI.T.R.HARIKUMAR** WPC 18773/19 2 ## **RESPONDENT/S:** - **1 THE ENATHU SERVICE CO-OPERATIVE BANK LTD.NO.2529 REPRESENTED BY ITS SECRETARY, ENATHU P.O.PATHANAMTHITTA DISTRICT-691 526** - **2 THE ELECTORAL OFFICER, ENATHU SERVICE CO-OPERATIVE BANK LTD NO 2529, ENATHU P.O.PATHANAMTHITTA DISTRICT-691 526, (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) ADOOR , PATHANAMTHITTA),** - **3 THE RETURNING OFFICER, ENATHU SERVICE CO-OPERATIVE BANK NO 2529, ENATHU P.O.PATHANAMTHITTA DISTRICT-691 526, (UNIT INSPECTOR, ADOOR UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) ADOOR, PATHANAMTHITTA** - **4 THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM695 001.** - ***5 ADDL.R5.ADV.B.RADHAKRISHNAN, AGED 51 YEARS, S/O BHASKARAN NAIR, PALAVILA VEEDU, ENATHU MURI, ENATHU VILLAGE, ENATHU PO, ADOOR TALUK, PATHANAMTHITTA DISTRICT 691 526,** - **(*ADDL R5 IMPLEADED AS PER ORDER DATED 29.07.2019 IN IA 1/2019)** - ***6 ADDL.R6.A.THAJUDEEN, AGED 52, S/P ABDUL KARIM, AMIYA MANZIL, ENATHU PO, ENATHU VILLAGE, PATHANAMTHITTA DISTRICT 691 526, (*ADDL R6 IMPLEADED AS PER ORDER DATED 29.07.2019 IN IA 1/2019)** **BY ADVS. SRI.JAIBY PAUL SRI.K.B.PRADEEP SRI.K.SHAJ SRI.R.LAKSHMI NARAYAN SMT. C.S. SHEEJA – SR GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 18773/19 3 ## **JUDGMENT** The petitioners, who claim to be the members of the 1[st] respondent-Society, have filed this Writ Petition impugning their alleged exclusion from the Voters' List for the elections to the Managing Committee of the Society scheduled on 27.07.2019. 2. On hearing Sri.T.R.Harikumar, learned counsel for the petitioners, on 23.07.2019, I had passed the following order: The learned Standing Counsel for the Election Commission, submits that the persons, who have been removed from the voters list, were so removed because they are ineligible and illegally admitted. In the afore circumstances and taking note of the fact that the elections are scheduled on 27/07/2019, I direct that all the persons who have now been removed and whose names are available in Ext.P2 be allowed to cast their votes in a separate ballot box, subject to the requirements under Rule 35(A)(6)(n)(ix) of the Kerala Cooperative Societies Rules. After the elections, the boxes will be counted separately but declaration of results will be subject to further orders from this Court. List this case for consideration on 29/07/2019. WPC 18773/19 4 3. Today I am told that the elections are complete and that the petitioners have cast their votes in a separate box. I am also told that in view of the interim order afore extracted, the ballots in the separate box were counted, but that declaration of the results has not yet been done. 4. I am, therefore, of the view that it will not be proper or prudent for this Court to consider the contentions of the petitioners on its merits in this Writ Petition, particularly, when acting under Article 226 of the Constitution of India and that they will have to pursue their remedies before the competent Forum, through proper proceedings under the Kerala Co-operative Societies Act and Rules. Resultantly, I order this writ petition and confirm the interim order dated 23.07.2019 to the extent to which the votes of the petitioners herein had been counted and direct WPC 18773/19 5 the Election Commission to declare the results without reckoning any of the 148 votes, including that of the petitioners which have been polled in a separate box as per the said order. ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** To be spoken to: **==> picture [153 x 12] intentionally omitted <==** After I had dictated the judgment in this case on 29.07.2019, a request was made by Sri.T.R.Harikumar, learned counsel for the petitioner, that the matter be heard again since certain relevant and crucial aspects had been omitted to be placed before this Court. 2. I have therefore, listed these WPC 18773/19 6 matters today for being 'to be spoken to', and heard Sri.George Poonthottam, learned senior counsel, instructed by Sri.T.R.Harikumar, to appear for the petitioner; Sri.R.Lakshmi Narayan, learned standing counsel for the Election Commission; Sri.K.B.Pradeep, learned counsel appearing for contesting respondents and the learned Senior Government Pleader appearing on behalf of the official respondents. 3. Sri.George Poonthottam vehemently submits that exclusion of the petitioners, as well as large number of other persons from the Voters' List has been done by the Electoral Officer without following the basic principles of law, as enunciated under Sections 19, 20 and 28 of the Kerala Cooperative Societies Act ('KCS Act' for short) and without following the procedure under Rule 35A(4) of the Kerala Co-operative WPC 18773/19 7 Societies Rules (KCS Rules for short), and therefore, that such exclusion is illegal and unlawful. 4. I further notice that a counter affidavit has been filed on record by the Election Commission, wherein, they have explained the reasons and the manner in which, the petitioners and others have been excluded from the Voters' List. As is clear from Ext.R2(d) proceedings therein, the Electoral Officer says that he has excluded 204 members since they were found to be residing outside the area of operation of the Society; and another 133 persons because their statutory identity cards were found forged; while three were found to have not subscribed to the necessary share value as per the Bye-laws. 5. The learned standing counsel for the Commission thus contended that the Electoral WPC 18773/19 8 Officer has exercised discretion under Rule 35A(4) of the KCS Rules validly and after following the procedure, as is mandated in law and therefore, that this Court may not exercise jurisdiction in these matters under Article 226 of the Constitution of India, going by the judgments of the Hon'ble Supreme Court in **Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Uptadak Sanstha and another v. State of Maharashtra** **and others [2001 KHC 1667].** He therefore, prays that no modification be made to the judgment dictated as 29.07.2019. 6. In response, Sri.George Poonthottam, submits that, as is clear from the counter affidavit, the Electoral Officer did not give individual notices to the members before they were removed and that the entire action was done in a very hurried manner because even according to the said officer, only a common WPC 18773/19 9 notice was published on 04.07.2019, which he submits is also untrue; and that Ext.R2(d), which is his final proceedings, was issued on 05.07.2019 itself. He says that this haste by itself shows that the mandatory procedure had not been followed. 7. Various other counsel for the parties, including Sri.K.B.Pradeep and the learned Senior Government Pleader affirm the submissions of Sri.Lakshmi Narayan, adding that since the elections are now over, it may not be proper or justified for this Court to intervene in the process, especially in view of the judgment of the Hon'ble Supreme Court afore cited. 8. I have considered the submissions and I am of the opinion that no modification to my views I have already taken above, is necessary because, for one; whether the allegations of the petitioners, now made by WPC 18773/19 10 Sri.George Poonthootam, are right or wrong is a matter which will require cogent and reliable evidence and assessment of the factual factors, which this Court cannot do under Article 226 of the Constitution of India; and for the second, going by the afore cited judgments of the Hon'ble Supreme Court, it may not be possible for this Court to exercise jurisdiction, particularly in view of the caution directed to be exercised by the Hon'ble Court in matters relating to election after the processes commence. 9. As far as this case is concerned, it is undoubted that the petitioners were removed from the Voters' List and therefore, I had issued the interim order dated 23.07.2019 not because I had found the exclusion to be illegal but so as to pave way for the rights to be exercised by those persons, if they are so interested after the WPC 18773/19 11 elections are over. It is solely to protect those rights of such persons, including the petitioners herein, that I had asked their votes to be cast in a separate ballot box; which obviously, was intended to facilitate invocation of their remedies in future. I therefore, do not deem it necessary, in any manner, to modify my judgment dated 29.07.2019. Sd/- ## **DEVAN RAMACHANDRAN** **JUDGE** WPC 18773/19 12 ## APPENDIX OF WP(C) 18773/2019 ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE NOTIFICATION NO E(2)/2833/2019/S.C.E.C DATED 19.6.2019 EXHIBIT P2 A TRUE COPY OF THE PROCEEDING DATED 6.7.2019 OF THE ELECTORAL OFFICER, ADDING AND REMOVING THE MEMBERS FORM THE PRELIMINARY VOTERS LIST ## RESPONDENT'S/S EXHIBITS: EXHIBIT-R2(A) TRUE COPY OF THE NOTICE DATED 04/07/2019 ISSUED BY THE ELECTORAL OFFICER CALLING UPON OBJECTIONS AND EXPLANATIONS ON THE COMPLAINTS PREFERRED BY CERTAIN PERSONS IN RESPECT OF THE PRELIMINARY VOTERS LIST EXHIBIT-R2(B) TRUE COPY OF THE NOTICE DATED 05/07/2019 ISSUED BY THE ELECTORAL OFFICER TO THE SECRETARY OF THE FIRST RESPONDENT SOCIETY EXHIBIT-R2(C) TRUE COPY OF THE RELEVANT EXTRACTS OF FORM 6B REGISTER SHOWING THE DETAILS OF THREE OF THE PETITIONERS EXHIBIT-R2(D) TRUE COPY OF THE PROCEEDINGS NO. G- 486/2019 DATED 05/07/2019 ISSUED BY THE ELECTORAL OFFICER