Jayasree O and K. Radhakrishnan Pillai v. Chief Election Commissioner, State Co-operative Election Commission, Pattathanam Service Co-Operative Bank Ltd, Assistant Registrar of Co-operative Societies (General), Returning Officer, Pattathanam Service Co-Operative Bank Ltd, represented by its Secretary

_**WP(c).21364/22**_ 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 12[TH] DAY OF JULY 2022 / 21ST ASHADHA, 1944** ## **WP(C) NO. 21364 OF 2022** ## **PETITIONER/S:** 1 JAYASREE O AGED 58 YEARS PANDALA HOUSE, BHAVANA NAGAR, 298A, KADAPPAKADA P.O., KOLLAM-691 008 2 K. RADHAKRISHAN PILLAI, KALIYILIL KIZHAKKATHIL, PATTATHANATHU CHERIYIL, PATTATHANAM, KOLLAM,PIN-691 008 BY ADV D.SOMASUNDARAM **RESPONDENT/S:** 1 CHIEF ELECTION COMMISIONER, STATE CO-OPERATIVE ELECTION COMMISSION (SCEC) OFFICE OF THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM,PIN-695 001 2 ELECTORAL OFFICER, PATTATHANAM SERVICE CO-OPERATIVE BANK LTD NO.Q1145, PATTATHANAM, KOLLAM, ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), KOLLAM-691 001 3 RETURNING OFFICER, PATTATHANAM SERVICE CO-OPERATIVE BANK LTD NO.Q1145, PATTATHANAM, KOLLAM, KOLLAM UNIT INSPECTOR, KOLLAM691 001 4 PATTATHANAM SERVICE CO-OPERATIVE BANK LTD NO.Q1145, PATTATHANAM, KOLLAM, REPRESENTED BY ITS SECRETARY-691 001 BY ADVS. GEORGE POONTHOTTAM (SR.) R.N.SANDEEP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: _**WP(c).21364/22**_ 2 ## **V.G.ARUN, J. ----------------------------------------------W.P(C).No. 21364 of 2022 ----------------------------------------------Dated this the 12[th] day of July, 2022** ## **JUDGMENT** The petitioners are aggrieved by the non-inclusion of their names in the final voters’ list published in connection with the election to the Managing Committee of the fourth respondent Society. The averments in the writ petition are to the following effect; The first petitioner was given membership in the fourth respondent Society on 29.9.1993. Subsequently, the first petitioner relinquished her membership, when she was appointed in the Society as Attender. The first petitioner retired from the Society as Chief Accountant on 31.5.2020. Thereafter, she applied for membership on 3.7.2020 and remitted the membership fees and share amount. On being granted membership, the first petitioner availed a loan from the Society, as evidenced by Exhibit P11 loan pass book. The second petitioner obtained membership on 29.9.1993 and his name was included at serial number No.3 in the membership register. The second petitioner was also the President of the Society for some time. Due to financial difficulties, the second _**WP(c).21364/22**_ 3 petitioner sold his property and residential house situated within the area of operation of the Society. He is now staying in a rented house situated within the area of operation of the Bank and is conducting business in a shop taken on rent. 2. The next election to the Managing Committee of the Society is notified by Exhibit P1. The petitioner’s names were included in the preliminary voters’ list published on 15.6.2022. To the Surprise and dismay of the petitioners’, their names have been removed from the final voters’ list published on 26.06.2022. The petitioners are not aware of the reason for deletion of their names from the final voters’ list. No action, with notice to the petitioners, has so far been taken for removing them from the membership of the Society. The petitioners therefore seek an order, directing the second respondent to include their names in the final voters’ list and allow them to contest and vote in the election notified as per Exhibit P1. 3. Adv.D.Somasundaram, learned Counsel for the petitioners, submitted that, under Rule 35A of the KCS Rules, the Electoral Officer is conferred with only limited power, while considering objections raised against inclusion/removal of names from the final voters’ list. The inquiry by the Electoral Officer, should be confined to the question whether admission of that member was within 60 days of the date of election or the date of general body. In the guise _**WP(c).21364/22**_ 4 of an inquiry under Rule 35A(4), the Electoral Officer cannot decide on the disqualifications falling under Rules 16(3) and (4) of the KCS Rules. The first petitioner having been admitted to membership and granted loan after retirement from the service of the Society and the second petitioner being a member all throughout, have every right to participate in the ensuing election. As such, there is no justification for removing the petitioners’ names from the final voters’ list. To bolster the contention, learned Counsel placed reliance on the decisions in **Mathew v. State of Kerala** [1992 (2) KLT 60] and **Porinchu v. Joint Registrar of Co-operative Socieites** [2009 (4) KLT 105]. 4. Adv.George Poonthottam, learned Senior Counsel, appear for the fourth respondent, as instructed by Adv. Sandeep R.N, made the following submissions; Even though the first petitioner was a member earlier, she had relinquished the membership on being appointed as Attender. Immediately after retirement, the first petitioner applied for membership. Since the first petitioner had retired as Chief Accountant of the Bank, her request for membership was not considered by the Managing Committee. However, the first petitioner prevailed upon the employees of the bank, who were her subordinates and secured a loan of Rs.1 lakh on 20.11.2020. Later, _**WP(c).21364/22**_ 5 on realising that the petitioner had not been granted membership, she remitted back the loan amount. The contention that the petitioner’s name was illegally removed from the final voters’ list is without substance, since the question of removal would arise only if she is a member of the Society. 5. An objection was received by the Electoral Officer as to the present residential status. On coming to know about the objection, the second petitioner appeared before the electoral officer and confessed that he is residing 7 kms away from the area of operation of the Society. As either residence or conduct of business within the area of operation of the Society is mandatory for membership, the electoral officer removed the second petitioner’s name from the final voters’ list, based on his own confession. In view of the above facts and the limited scope for interference in election disputes, the writ petition is liable to be dismissed. 6. Adv.C.M.Nazar, appearing for some of the respondents,pointed out that the writ petition has virtually become infructuous, as the election has reached its final stage. 7. It is pertinent to note that Section 20 of the KCS Act guarantees one vote for every member. Rules 16(3) and (4) of the KCS Rules dealing with the removal of members makes it mandatory to hear the person concerned before taking the decision. Under Rule _**WP(c).21364/22**_ 6 35A(4), the electoral officer is conferred with the duty of publishing the preliminary voters’ list, calling for objections and publishing the final voters’ list. While publishing the final voters’ list, the electoral officer can consider the objection regarding inclusion/removal of a member from the voters’ list. The scope of such consideration was considered by this Court in **Mathew** , the relevant portion of which reads as under; _“15. The position that emerges is that objection regarding inclusion of names of members admitted after the resolution contemplated under R.35(l) can be validly taken before the returning officer and he has to entertain that objection and if substantiated the name of such a member has to be removed from the list while preparing the final voters list. But the Returning Officer cannot probe in to the eligibility or otherwise of a member who had been 7/12/22, 11:52 AM Mathew v. State of Kerala admitted before that date. The Act and the rules having conferred a right of expulsion or removal of a member on the managing committee and the Registrar of Co-operative Societies that power cannot be usurped by the Returning Officer in the guise of the authority given to him to consider the objections to the preliminary voters list prepared by the managing committee. The reason is that in the earlier case the person admitted has not become a member and thus not eligible to vote whereas in the latter he had become a member entitled to vote in an election and the consideration is as to his eligibility to continue as a member which is beyond the powers of the Returning Officer.”_ _**WP(c).21364/22**_ 7 8. As held in **Porinchu** , once a person is granted membership, even if it is illegal, unless such person is removed from membership in accordance with the procedure laid down in Rule 16(3) and (4), his membership will continue. As far as the instant case is concerned, there is a factual dispute as to whether the first petitioner was granted membership after her retirement from the service of the Society. Rule 16(1) dealing with the conditions to be complied with for admission of member, reads as under; ## _“16._ _**Conditions to be complied with for admission for membership.-**_ _(1) No person shall be admitted as a member of a society unless-_ _(a) he has applied in writing in the form if any laid down by the society._ _(b) his application is approved by the committee of the society;_ _(c) he has fulfilled all other conditions laid down in the Act, Rules and Bye-laws;_ _(d) in the case of other societies or a body of persons, whether incorporated or not, and any statutory or non-statutory Board, approved by the Government, Committee or Corporation constituted for the development of any industry the application for membership shall be accompanied by a resolution authorising it to apply for such membership.”_ 9. As per Rule 16(1)(b), the application submitted by the persons seeking membership should be approved by the committee of the Society. The specific case put forth by the fourth respondent is that the first petitioner’s application for membership has not been approved by the committee. Rule 16A mandates that a person admitted as a member shall be issued with an identity card in Form _**WP(c).21364/22**_ 8 6A, which shall be conclusive evidence to prove his membership in the Society. The first petitioner has not produced her Form 6A identification card issued after remitting membership fees under Exts. P9 and P10. The identity card produced by her pertains to the period prior to her appointment in the service of the Society. It is an admitted case that on entering the service of the Society the first petitioner had relinquished her membership. The issuance of Exhibits P9 and P10 receipts or Exhibit P11 passbook will prove grant of membership. In the absence of proof regarding membership, a challenge against removal from the final voters list cannot be entertained. 10. The reason for removing the second petitioner's name from the final voters’ list is stated to be an objection regarding his present residential status and the second petitioner’s confession that he is residing beyond the area of operation of the Society. To counter this contention, the second petitioner has produced a copy of his ration card and rent deeds. In my considered opinion, the electoral officer is not empowered to venture into the disputed question whether the second petitioner is residing within the area of operation of the Society, since such exercise is beyond the power conferred under Rule 35A(4) of the KCS Rules. Indisputably, the second petitioner continues to be a member of the Society and is _**WP(c).21364/22**_ 9 therefore entitled to cast his vote in the election in view Section 20 of the KCS Act. Therefore, I find the deletion of second petitioner’s name from the final voters’ list to be patently illegal. In the result, the challenge against removal of the first petitioner’s name from the voters’ list is rejected and the second petitioner’s challenge, upheld. Consequently, the respondents are directed to permit the second petitioner to cast his vote in the polling scheduled to be held on 17.7.2022, _de hors_ the non-inclusion of his name in the final voters’ list. The writ petition is ordered accordingly. **Sd/-** **V.G.ARUN, JUDGE** _vgs_ _**WP(c).21364/22**_ 10 ## **APPENDIX OF WP(C) 21364/2022** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE ELECTION NOTIFICATION| |---|---| ||PUBLISHED IN MATHRU BHOOMY DAILY DATED| ||14.6.2022| |Exhibit P2|TRUE COPY OF THE PRELIMINARY VOTERS LIST-| ||THE 2ND PETITIONERS NAME WAS SHOWN AS SL| ||NO.3| |Exhibit P3|TRUE COPY OF THE RELEVANT ENTRY TAKEN DOWN| ||FROM PRELIMINARY VOTERS LIST-FIRST| ||PETITIONER'S NAME WAS SHOWN WITH| ||MEMBERSHIP NO.3477| |Exhibit P4|TRUE COPY OF THE RELEVANT PORTION OF THE| ||FINAL VOTERS LIST PUBLISHED BY THE 2ND| ||RESPONDENT ON 26.6.2022 THE PETITIONERS| ||NAME WERE DELETED FROM IT.| |Exhibit P5|TRUE COPY OF THE NEWS IN THE MALAYALA| ||MANORAMA DAILY DATED 23.06.2022 THE| ||ILLEGALITY IN THE VOTERS LIST IS APPEARED.| |Exhibit P6|TRUE COPY OF THE 6A IDENTITY CARD OF THE| ||1ST PETITIONER| |Exhibit P7|TRUE COPY OF THE IDENTITY CARD OF THE 2ND| ||PETITIONER ISSUED ON 11.3.1994| |Exhibit P8|TRUE COPY OF THE JUDGMENT DATED 6.12.2021| ||IN WPC 27532 OF 2021 OF THIS HONOURABLE| ||COURT.| |Exhibit P9|TRUE COPY OF THE RECEIPT DATED 3.7.2020| ||WHICH WOULD SHOW THAT THE 1ST PETITIONER| ||HAS PAID RS.500 AS SHARE AMOUNT, RS.10 AS| ||ENTRANCE FEE AND RS 5 AS MISC/ STATIONARY| |Exhibit P10|TRUE COPY OF THE RECEIPT DATED 20.11.2020| ||FOR THAT THE 1ST PETITIONER HAS TAKEN| ||SHARE FOR RS 1500/-| |Exhibit P11|TRUE COPY OF THE COVER PAGE OF THE PASS| ||BOOK OF THE LOAN SHOWING 1ST PETITIONERS| _**WP(c).21364/22**_ 11 MEMBERSHIP AS 3477 Exhibit P12 TRUE COPY OF THE RATION CARD SHOWING 1ST PETITIONERS PLACE OF RESIDENCE IN THE AREA OF OPERATION OF THE BANK, Exhibit P13 TRUE COPY OF THE RATION CARD SHOWING THE PLACE OF RESIDENCE AT PATTATHANAM OF THE 2ND PETITIONER Exhibit P14 TRUE COPY OF THE RENT DEED DATED 13.06.2022 OF THE 2ND PETITIONER Exhibit P15 TRUE COPY OF THE RENT DEED DATED 01.01.2022 OF THE 2ND PETITIONER TAKEN ANOTHER SHOP ROOM ON RENT TO DO A BUSINESS Exhibit P16 TRUE COPY OF THE RELEVANT PORTION OF THE REGISTERED BYELAWS OF THE PATTATHANAM SERVICE CO OPERATIVE BANK LTD NO.1Q1145