In the High Court of Kerala at Ernakulam - WP(C).Nos. 24890/2019(I), 25488/2019(I) & 26552/2019(T) (Hameed Kutty M.S.; Ramesh M.M.; K.V. Saju – Petitioners) v State Co-operative Election Commission and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 15TH DAY OF NOVEMBER 2019 / 24TH KARTHIKA, 1941** ## **WP(C).No.24890 OF 2019(I)** ## **PETITIONER/S:** **HAMEED KUTTY.M.S AGED 55 YEARS S/O. SULAIMAN, PAZHUVELIL HOUSE, KULAYATTIKARA P.O., ERNAKULAM DISTRICT 682 317.** **BY ADVS. SRI.T.R.HARIKUMAR SRI.ARJUN RAGHAVAN** ## **RESPONDENT/S:** - **1 THE STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM 695 001.** **2 THE ELECTORAL OFFICER, KEECHERI SERVICE CO-OPERATIVE BANK LTD. NO. 668, KULAYATTIKARA P.O., ERNAKULAM DISTRICT 682 317. (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETEIS (GENERAL), KANAYANNUR, CIRLCE CO-OPERATIVE UNION OFFICE, VALANJAMBALAM P.O., ERNAKULAM).** **3 THE RETURNING OFFICER, KEECHERI SERVICE CO-OPERATIVE BANK LTD NO. 668, KULAYATTIKARA P.O., ERNAKUAM DISTRICT 682 317. (UNIT INSPECTOR, TRIPUNITHURA UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANAYANNUR, CIRCLE COOPERATIVE UNION OFFICE, VALANJAMBALAM, P.O. ERNAKULAM.** ## **WP(C).No.24890 OF 2019(I)** - **4 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANAYANNUR, CIRCLE CO-OPERATIVE UNION OFFICE, VALANJAMBALAM P.O., ERNAKULAM DISTRICT 682 016.** - **5 THE KEECHERI SERVICE CO-OPERATIVE BANK LTD., NO. 668,** - **REPRESENTED BY ITS SECRETARY, KULAYATTIKARA P.O.,** - **ERNAKULAM DISTRICT 682 317.** - **6 THE ADMINISTRATIVE COMMITTEE OF THE KEECHERI SERVICE CO-OPERATIVE BANK LTD. NO. 668, REPRESENTED BY ITS CONVENOR, KULAYATTIKARA P.O., ERNAKULAM DISTRICT 682 317.** ## **Shri P.C.SASIDHARAN** **SRI. R. LAKSHMI NARAYAN-S.C. , SRI. BIMAL .K. NATH-G.P. SMT.SHEEJA C.S** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-11-2019, ALONG WITH WP(C).25488/2019(I), WP(C).26552/2019(T), THE COURT ON 15-11-2019 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 15TH DAY OF NOVEMBER 2019 / 24TH KARTHIKA, 1941** ## **WP(C).No.25488 OF 2019(I)** ## **PETITIONER/S:** **RAMESH.M.M AGED 52 YEARS S/O.MADHAVAN NAIR, MELEKKAT (GOWRISHANKARAM), KEECHERI, KULAYATTIKKARA, ERNAKULAM-682317** **BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH** ## **RESPONDENT/S:** - **1 THE STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM PIN-695001** - **2 THE ELECTORAL OFFICER, KEECHERI SERVICE CO-OPERATIVE BANK LTD NO.668, KULAYATTIKARA.P.O., ERNAKULAM DISTRICT PIN682317(ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETEIS (GENERAL)KANAYANNUR, CIRCLE COOPERTIVE UNION OFFICE, VALANJAMBALAM.P.O, ERNAKULAM)** - **3 THE RETURNING OFFICE, KEECHERI SERVIE CO-OPERATIVE BANK LTD NO.668, KULAYATTIKARA.P.O, ERNAKULAM DISTRICT PIN682317(UNIT INSPECTOR, TRIPUNITHURA UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES(GENERAL), KANAYANNUR, CIRCLE CO-OPERATIVE UNION OFFICE, VALANJAMBALAM.P.O(ERNAKULAM)** ## **WP(C).No.25488 OF 2019(I)** - **4 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL)** - **KANAYANNUR, CIRCLE CO-OPERATIVE UNION OFFICE, VALANJAMBALAM.P.O, ERNAKULAM DISTRICT-682016** - **5 THE KEECHERI SERVICE CO-OPERATIVE BANK LTD NO.668,** - **REPRESENTED BY ITS SECRETARY, KULAYATTIKARA.P.O, ERNAKULAM DISTRICT PIN682317** - **WPC 25488/2019** - **6 THE ADMINISTRATIVE COMMITTEE OF THE KEECHERI SERVICE** - **CO-OPERATIVE BANK LTD NO.668, REPRESENTED BY ITS CONVENOR, KULAYATTIKARA .P.O, ERNAKULAM DISTRICT PIN-682317** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-11-2019, ALONG WITH WP(C).24890/2019(I), WP(C).26552/2019(T), THE COURT ON 15-11-2019 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 15TH DAY OF NOVEMBER 2019 / 24TH KARTHIKA, 1941** ## **WP(C).No.26552 OF 2019(T)** ## **PETITIONER/S:** **K.V.SAJU AGED 52 YEARS KOMADATHUSSERIL HOUSE, KULAYETTIKKARA P.O., ENAKULAM, PIN-682 317.** **BY ADV. SRI.D.SOMASUNDARAM** ## **RESPONDENT/S:** - **1 STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM-695 001.** - **2 ELECTORAL OFFICER, KEECHERI SERVICE CO-OPERATIVE BANK LTD.NO.668, KULAYATTIKKARA P.O., ERNAKULAM DISTRICT, PIN682 317.** - **3 RETURNING OFFICER, KEECHERI SERVICE CO-OPERATIVE BANK LTD.NO.668, KULAYATTIKKARA P.O., ERNAKULAM DISTRICT, PIN682 317.** - **4 KEECHERI SERVICE CO-OPERATIVE BANK LTD.NO.668, KULAYATTIKKARA P.O., ERNAKULAM DISTRICT, PIN682 317, REPRESENTED BY ITS SECRETARY.** - **R1 BY ADV. SRI.R.LAKSHMI NARAYAN R2-3 BY GOVERNMENT PLEADER SR. SMT.SHEEJA C.S** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **01-11-2019, ALONG WITH WP(C).24890/2019(I), WP(C).25488/2019(I), THE COURT ON 15-11-2019 DELIVERED THE** **FOLLOWING:** ## **J U D G M E N T** **[W.P.(C).Nos.24890/2019, 25488/2019 & 26552/2019]** Dated this the 15[th] day of November, 2019 The petitioners in all these writ petitions are members of a Co-operative Society, namely, the Keecheri Service Cooperative Bank Ltd. The election to the above society as per the notification was scheduled on 27.10.2019. Preliminary voters' list was published on 23.9.2019. An objection to the preliminary voters' list was filed by the petitioners on the same day. Final voters' list after scrutiny was published on 3.10.2019. The petitioners raised objection to the preliminary voters list stating that those members who had not paid enhanced share value of Rs.50/- 60 days prior to the date of election i.e. before 28.8.2019 shall not be permitted to vote in the election. The objection was overruled. The inclusion of those members who had not paid enhanced share value prior to 60 days of election is not disputed. It is submitted that more than 800 members were included in the list who had paid enhanced share value after 27.8.2019. The WPC 24890/2019, 25488/2019 & 26552/2019 ## **-:2:-** issue in these cases revolve around inclusion of such members in the voters list. 2. This Court can interfere with the election process only when there is a glaring violation of statutory provisions on the face of the record. This Court cannot use its jurisdiction if there are disputed questions of fact and law. Such a dispute can only be resolved through the process of election petitions after the elections are over. 3. Rule 28 of Co-operative Societies Rules restrict right of vote at the election. The rule reads thus: “28. **Restriction on the right of vote at the election:-** (1) No member of a society shall be eligible to vote at the meeting fixed for any election to the committee of that society, unless 60 days prior to the date of such meeting he acquires the number of shares for membership as may be provided in the byelaws of the society of which he is a member.” The above Rule also has to be understood in the light of Rule 26 which reads thus: “ **26. Prohibition on admission of members and transfer of shares on the eve of general meeting:-** (1) No society shall admit members or approve the transfer of shares within sixty days prior to the date of election WPC 24890/2019, 25488/2019 & 26552/2019 ## **-:3:-** or the date of the general body meeting. (2) Any person admitted as member and any person in whose favour the transfer of shares have been approved in contravention of this rule shall not have the right to membership or the right to vote at the said election or at the general body meeting.” A combined reading of the above Rules clearly establish the fact that no right is accrued to a member who paid enhanced share value on the eve of general meeting or within 60 days prior to the date of such meeting. 4. It is apposite to refer to Sections 19 and 20 of the Kerala Co-operative Societies Act, which provides as follows: **“19. Member not to exercise rights till due payment made:-** No member of a society shall exercise the rights of a member unless he has made such payments to the society in respect of membership or has acquired such interest in the society, as may be prescribed by the rules or the bye-laws. **20. Vote of numbers.** — Notwithstanding anything contained in any other provision of this Act or any other law, every member of a society shall have one vote in the affairs of the society: Provided that,--- (a) a member admitted within sixty days immediately prior to the date of election shall not have a right to vote; WPC 24890/2019, 25488/2019 & 26552/2019 ## **-:4:-** (b) a nominal or associate member shall not have the right to vote; (c) where the Government is a member of the society, each person nominated by the Government on the committee of the society shall have one vote each including the right to vote for election of office bearers of the society; (d) an ex-officio member on the committee of a society shall have one vote but shall not have right to vote for election of office bearers of the society; (e) in the case of an equality of votes, the Chairman shall have and exercise a second or casting vote.” The statutory provisions above restrict the right of a member to vote if such right is not accrued prior to 60 days of the date of election. Therefore, it is clear that even those who have paid enhanced share value are not entitled to vote. 5. However, in these cases, a peculiar circumstance arise for consideration. The Government, by order G.O. (P).No.108/2019/Co-op., dated 4.10.2019, taking note of bye-election to the Legislative Assembly constituencies, countermanded all further steps for election to the Co-operative Society for the reason that it would be practically difficult to conduct election. Accordingly, the polling date for election was re-scheduled to 8.12.2019. The WPC 24890/2019, 25488/2019 & 26552/2019 ## **-:5:-** question, therefore, that arises is whether the members who paid enhanced share value 60 days prior to 8.12.2019 are entitled to vote or not. 6. It is to be noted that election has to take place in accordance with the original notification. All steps referred to in the notification are integral part of the process of election. What is countermanded is only further steps. The date of election as referred to under Rule 28 has to be understood as the date with reference to the original notification. This is for the reason that all steps were taken pursuant to the original notification. The qualification/disqualification is with reference to the original notification. Merely because one step pursuant to the original notification is ordered to be countermanded, it will not create a right. The moment the notification is issued, by operation of the statutory provision, the member becomes disqualified for the reason that he had not paid enhanced membership value prior to 60 days. That statuory disqualification incurred based on notification cannot be resurrected by any action of the parties, by postponing the WPC 24890/2019, 25488/2019 & 26552/2019 ## **-:6:-** election date. Statutorily incurred disqualification can be resurrected only if the statute provides such remedial measures for any circumstances like this. If not, the very object of the statutory provisions restricting right of vote would be defeated. The object of the statute is that the managerial committee should not indulge in undemocratic practices by admitting new members or allowing existing members to pay enhanced share value to wrestle the majority. 7. The learned counsel for the Administrator, however, argued that it would be unjust if a large number of voters are denied of their right to vote. He referred to the judgment of this Court in **Vasavan v. District Coir Project Officer [1993 (1) KLT 293], K.Jaya Varma v. Returning Officer [1999 (2) KLT 826]** and **Koothali Service Co-operative Bank Ltd. v. Electoral Officer/Assistant Registrar, Cooperative Societies, Quilandy and Others [2012 (2) KHC 667 (DB)].** On the other hand, the petitioners placed reliance on the judgments in **M.K.Vasavan v. District Coir Project Officer and others [1993 (1) KLJ 348 (DB)]** and **Rajan v. Electoral Officer [2009 (3) KLT 1046].** WPC 24890/2019, 25488/2019 & 26552/2019 ## **-:7:-** **8.** The judgment relied upon by the part-time Administrator may not have relevance in these cases in the light of the statutory provisions and also in the light of the judgments relied upon by the petitioners' counsel. Precedents cited by the part-time Administrator was overlooking the binding precedents in **Vasavan's** case ( _supra_ ) cited by the petitioner. In **Vasavan's** case it was categorically held by the Division Bench that such members who fail to pay full share capital cannot vote at any meeting. This decision was also followed by a learned Single Judge in **Rajan's** case ( _supra_ ). The learned counsel for the part-time Administrator further aruged that without the impleading the disqualified persons, the writ petition is not maintainable. This Court is deciding only a point of law. In the absence of the affected party on the party array, there is no difficulty for this Court in deciding a law. Further, it is practically not possible to implead all such affected persons as well. In such circumstances, I find that the objection raised by the learned counsel for the part-time Administrator is unsustainable. Thus, the writ WPC 24890/2019, 25488/2019 & 26552/2019 ## **-:8:-** petitions are allowed. The Returning Officer is directed to re-cast voters list excluding the members who have not paid enhanced share value prior to 60 days of 27.10.2019. No costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ms WPC 24890/2019, 25488/2019 & 26552/2019 ## **-:9:-** ## **APPENDIX OF WP(C) 24890/2019** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE JUDGMENT IN WPC NO. 14712 OF 2019 DATED 14.6.2019.** **EXHIBIT P2** **A TRUE COPY OF THE JUDGMENT IN WPC NO. 16891 OF 2019 DATED 20.8.2019.** **EXHIBIT P3 A TRUE COPY OF THE PROCEEDINGS DATED 12.6.2014 OF THE JOINT REGISTRAR ALONG WITH THE AMENDED BYE LAW CLAUSE SHOWING THAT THE SHARE VALUE IS RS. 50/-** **EXHIBIT P4 A TRUE COPY OF THE APPLICATION FILED BY A MEMBER OF THE SOCIETY DATED 27.7.2018. EXHIBIT P5 A TRUE COPY OF THE INFORMATION ISSUED BY THE SOCIETY DATED 20.8.2018. EXHIBIT P6 A TRUE COPY OF THE INFORMATION ISSUED BY THE SOCIETY DATED 31.8.2018. EXHIBIT P7 A TRUE COPY OF THE LIST OF 4037 MEMBERS, WHO HAS NOT REMITTED THE ENHANCED SHARE VALUE, ISSUED BY THE SOCIETY.** **EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION DATED 16.9.2019 FILED BY THE PETITIONER BEFORE THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES.** **EXHIBIT P9 A TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER DATED 18.9.2019. EXHIBIT P10 A TRUE COPY OF THE NOTICE OF PUBLICATION OF THE PRELIMINARY VOTERS LIST DATED 23/9/2019** **EXHIBIT P11 A TRUE COPY OF THE FIRST PAGE AND LAST PAGE OF THE PERLIMINARY VOTERS LIST** WPC 24890/2019, 25488/2019 & 26552/2019 ## **-:10:-** WPC 24890/2019 **EXHIBIT P12** - **EXHIBIT P13** **EXHIBIT P14** - **EXHIBIT P15** - **EXHIBIT P16** - **EXHIBIT P17** **A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE PRELIMINARY VOTERS LIST ON 27/9/2019** **A TRUE COPY OF THE APPLICATION FILED BY A MEMBER R.HARI, UNDER THE RTI ACT DATED 17/9/2019** - **A TRUE COPY OF THE COMMUNICATION NO.G1587/2019 DATED 27/9/2019 ISSUED BY THE PUBLIC INFORMATION OFFICER** - **A TRUE COPY OF THE VOTERS LIST OF ELIGIBLE A CLASS MEMBERS OF THE 5TH RESPONDENT SOCIETY** - **A TRUE COPY OF THE ELECTION NOTIFICATION NO.E(2)6021/2019/S.C.E.C DATED 6/9/2019 PUBLISHED IN THE DESABHIMANI DAILY DATED 21/9/2019** **A TRUE COPY OF THE LIST OF PERSONS, WHO WERE REMITTED THE ENHANCED SHARE VALUE AFTER 28-08-2019 I.E WITHIN 60 DAYS PRIOR TO 27-10-2019.** ## **APPENDIX OF WP(C) 25488/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PROCEEDINGS OF THE REGISTRAR DATED 12.6.2014** - **EXHIBIT P2 TRUE COPY OF THE AMENDED BYE LAW** - **EXHIBIT P3** - **TRUE COPY OF THE CERTIFICATE OF REGISTRATION DATED 12.6.2014** - **EXHIBIT P4 TRUE COPY OF THE APPLICATION UNDER RIT ACT DATED 27.7.2018 BY ONE HARI** - **EXHIBIT P5** - **TRUE COPY OF THE REPLY TO THE PUBLIC INFORMATION OFFICER DATED 20.8.2018** - **EXHIBIT P6 TRUE COPY OF THE NOTIFICATION DATED 6.9.2019** - **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION BY HAMEED KUTTY DATED 16.09.2019 TO THE 2ND RESPONDENT** - **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION BY HAMEED KUTTY DATED 18.09.2019 TO THE 2ND RESPONDENT** **EXHIBIT P9** - **TRUE COPY OF THE REPRESENTATION BY PETITIONER DATED 23.09.2019 TO THE 2ND RESPONDENT** **EXHIBIT P10 TRUE COPY OF THE LIST OF INELIGIBLE PERSONS.** ## **APPENDIX OF WP(C) 26552/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ELECTION NOTIFICATION DATED 06.09.2019.** **EXHIBIT P2 TRUE COPY OF THE NOTICE AND THE RELEVANT PORTION OF THE PRELIMINARY VOTERS LIST.** **EXHIBIT P3 TRUE COPY OF THE OBJECTION TO THE PRELIMINARY VOTERS LIST WITH THE STIPULATED TIME ON 23.09.2013 SUBMITTED BY THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE LIST OF INELIGIBLE PERSON PREPARED AS ON 17.09.2019. EXHIBIT P5 TRUE COPY OF ANOTHER LETTER DATED 27.07.2018 OF ONE OF THE MEMBERS OF THE BANK MR.R.HARI AND REPLY DATED 20.08.2018 OF THE BANK UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P6 TRUE COPY OF ANOTHER LETTER DT.27.7.2018 OF ONE OF THE MEMBERS OF THE BANK MR.R.HARI AND REPLY DT.2O.8.2018 OF THE BANK UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P7 TRUE COPY OF A LIST OF PERSONS WHO HAVE PAID THE BALANCE SHARE VALUE WITHIN 60 DAYS OF THE DATE OF POLL WHO ARE INCLUDED IN THE FINAL VOTERS LIST BY THE ELECTORAL OFFICER. ANNEXURE R1(A) PHOTOCOPY OF THE PROCEEDINGS DT.1.10.2019**