Kavalangad Service Co-operative Bank Ltd v State Co-operative Election Commissioner & ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 21ST DAY OF OCTOBER 2013/29TH ASWINA, 1935** ## **WP(C).No. 24418 of 2013 (B)** **----------------------------** ## **PETITIONER :** **--------------------** **KAVALANGAD SERVICE CO-OPERATIVE BANK LTD NO.1348, NELLIMATTOM P.O., ERNAKULAM DISTRICT REPRESENTED BY ITS SECRETARY.** **BY ADVS.SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY** ## **RESPONDENT(S):** - **----------------------------** **1. THE STATE CO-OPERATIVE ELECTION COMMISSION O/O. STATE CO-OPERATIVE ELECTION COMMISSIONER THIRUVANANTHAPURAM - 695001.** **2. THE ELECTORAL OFFICER (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES KOTHAMANGALAM) KAVALANGAD SERVICE CO-OPERATIVE BANK NO.1348 NELLIMATTOM P.O., ERNAKULAM DISTRICT-682310.** **3. THE RETURNING INSPECTOR (UNIT INSPECTOR, KOTTAPPADY) KAVALANGAD SERVICE CO-OPERATIVE BANK NO.1348 NELLIMATTOM P.O., ERNAKULAM DISTRICT-682310.** **4. M.V.YACKOB (M.NO.5878) MAZHUVANNOOPARAMBIL HOUSE NERYAMANGALAM P.O., ERNAKULAM DISTRICT - 682311.** **R1 TO R3 BY SPL. GOVT. PLEADER SRI. D.SOMASUNDARAM R4 BY ADV. SRI.GEORGE POONTHOTTAM** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-10-2013, ALONG WITH WPC NO. 25301/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(C).No. 24418 of 2013 (B)** **----------------------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** **-------------------------------------** **EXHIBIT-P1: TRUE PHOTOCOPY OF RELEVANT PAGES OF CLAUSE 4 BYE-LAWS OF THE PETITIONER BANK.** **EXHIBIT-P2: TRUE PHOTOCOPY OF CLAUSE 5(a) BYE-LAWS OF THE PETITIONER BANK.** **EXHIBIT-P3: TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 31.08.2013.** **EXHIBIT-P3(a): TRUE PHOTOCOPY OF THE ELECTION NOTIFICATION DATED 31.8.2013.** **EXHIBIT-P4: TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT BEARING NO.1/2013 DATED 28.09.2013.** **RESPONDENT(S)' EXHIBITS : NIL** **----------------------------------------------------------** ## **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **K.VINOD CHANDRAN, J.** --------------------------------------- ## **W.P.(C)Nos.24418 & 25301 of 2013** ---------------------------------------------Dated this the 21[st ] day of October, 2013 ## **JUDGMENT** In the two writ petitions, one filed by the Society and the other filed by one of the members; the respective petitioners seek contrary reliefs of setting aside of an order passed by the Electoral Officer and implementation of the same. The order sought to be implemented and set aside is produced in both the writ petitions as Ext.P4. In W.P(c) No.24418 of 2013, there was an interim direction staying Ext.P4 order for a period of one month on 05.10.2013. The petitioner in the other writ petition is impleaded as the 4[th] respondent and admittedly, Ext.P4 order was passed on an objection given by the 4[th] respondent. Though no counter affidavit has been filed, since the 4[th] respondent has filed a separate writ petition raising all contentions, the matters were heard together and disposed of. The parties are referred to as per their status in W.P.(c) No.24418 of 2013. W.P.(C)Nos.24418 & 25301 of 2013 2 2. The petitioner, the Society itself, challenges Ext.P4 order, by which about 700 members have been removed from the voters list by the Electoral Officer. Ext.P4 order was passed by the Electoral Officer, on a complaint filed by the 4[th] respondent wherein he had contended that about 3000 members included in the draft voters list were disqualified from exercising their franchise for reasons of not being within the jurisdictional area, having dual membership in another Society and also for reason of certain members being minors. The learned counsel for the petitioner would take me to Ext.P4 to contend that the findings in Ext.P4 would amply demonstrate that the jurisdiction of the Society is not decipherable since there are no physical boundaries and that the same is not dependent upon the jurisdictional area of a Local Self Government Institution(LSGI). The learned counsel would also rely on Ext.P1 bye-laws, which were formed in the year 1926, to contend that the jurisdictional W.P.(C)Nos.24418 & 25301 of 2013 3 area shown in paragraph 4 would amply demonstrate that the physical boundaries of the LSGI formed later and the area demarcation of the Wards may not necessarily show the jurisdiction of the Society definitely and in such circumstance, Ext.P4 order even disqualifying 700 members ought not to have been passed. The learned counsel also relies on the decision reported in _**Vijayakumar v. Joint Registrar**_ **(1996(1) KLT 285)** to contend that unless the allegations are specific and individual centric the Electoral Officer could not look into such objections. 3. The learned counsel for the 4[th] respondent, however, would contend that he had made a comprehensive complaint as per Ext.P3, along with which he had also produced voters list of the Panchayath showing clearly the name of the persons, who according to him, resided _inter alia_ outside the jurisdiction and that the same would amply demonstrate the disqualification of each of the W.P.(C)Nos.24418 & 25301 of 2013 4 members. 4. The learned counsel appearing for the 4[th] respondent, the petitioner in W.P.(c) No.25301 of 2013, points out an obvious mistake made, when the reliefs were sought and prayed that the reliefs should be read as seeking a direction to consider Ext.P3 in its entirety and to quash Ext.P4 to the extent it did not consider disqualification of all the persons referred to in Ext.P3 complaint. Though the reliefs are not worded as contended by the counsel, this Court, on the submission made across the bar, deems the prayers in W.P.(c) No.25301 of 2013 as above, for consideration. The learned counsel would contend that in fact all the members pointed out by them ought to have been removed from the voters list and in any event, Ext.P4 has to be implemented insofar as 700 members were found by the Electoral Officer to be disqualified from exercising their franchise. W.P.(C)Nos.24418 & 25301 of 2013 5 5. The learned Special Government Pleader appearing for the Electoral Officer, however, would seek to sustain Ext.P4 order and would pray that both the writ petitions be dismissed since the election is now scheduled to 27.10.2013. The learned Special Government Pleader would primarily resist W.P.(C) No.24418 of 2013 on the contention that the Bank has filed the writ petition and the franchise is a right available to an individual member and not to the Society or the Managing Committee and hence the petitioner in W.P.(c) No.24418 of 2013 does not have _locus standi_ to challenge Ext.P4. The Society as a legal entity remains unaffected and the Managing Committee members are projecting their grievances as that of the Society; which is impermissible, is the contention. The learned counsel for the petitioner, however, would maintain that it is the Bank which supplies the draft voters list and the Bank is competent to challenge an order passed by the Electoral Officer, which removed the members validly W.P.(C)Nos.24418 & 25301 of 2013 6 included by the Bank in the draft voters list. 6. Admittedly, the 4[th] respondent has filed an objection before the Electoral Officer within the time stipulated in Ext.P1 election notification, pointing out that certain members are disqualified from exercising their franchise. It is also not disputed that the Panchayath voters list was the only document produced by the 4[th] respondent to contend that those members were disqualified. Many of the members sought to be disqualified are said to be residing in Thenkode, Thalacode and Chempenkuzhi; going by Ext.P3 objection. However, looking at Ext.P1, it is clear that the Wards of Thenkode, Thalakode and Chempenkuzhi are included within the jurisdictional area of the Society in the election notification issued by the State Co-operative Election Commission. 7. A reading of Ext.P4 order, would also show that the Electoral Officer looked into the jurisdictional area as defined under the bye-laws and found that the W.P.(C)Nos.24418 & 25301 of 2013 7 jurisdictional area of the Society is not clearly decipherable by physical boundaries or by the demarcation of wards in the respective LSGI. It was also noticed that as per the bye-laws of the Bank, the persons who are entitled to be enrolled as members are either residents, or persons who had an employment or land within the jurisdictional area. The issue of dual membership was also taken into consideration and it was noticed that the persons who had membership in the other Society namely Onnukal Service Co-operative Bank were disqualified and hence that contention need not be looked into. It is after the examination of the entire materials available before the Electoral Officer that Ext.P4 order has been passed disqualifying 700 members. Admittedly, there are about 11000 members enrolled in the Bank and as per the draft voters list after the removal of 700 members as per Ext.P4, the final list would retain around 10000 eligible members entitled to vote. Considering the aforementioned W.P.(C)Nos.24418 & 25301 of 2013 8 circumstances in the background of the dictum laid down in the decision cited; it is clear that what is intended is an examination of the objections by the Electoral Officer and not a roving enquiry. What is warranted is a consideration of the relevant materials placed before the authority as to whether a particular person is disqualified or not. 8. _**Vijayakumar's case**_ (supra) held that the objections should be definite and specific and the Returning Officer(presently the Electoral Officer) should verify them with the materials placed before him by the objectors and the Society. It is not the eligibility to continue as a member, the authority is looking into and the consideration of an objection regarding inclusion in a draft voters list is only as to whether the member suffers from any disqualification to exercise his franchise. While holding that the membership alone will not confer the right to vote; it was also observed that while all voters undoubtedly should be members it cannot be said that all members would be W.P.(C)Nos.24418 & 25301 of 2013 9 eligible to vote. It is undisputed that the 4[th] respondent solely and fully relies on the voters list for the LSGI to advance his objections. No reliance can be placed on this document, as rightly found by the Electoral Officer, since the jurisdiction of the Society as determined from the byelaws are wide enough to be not restricted to the boundaries of the LSGI or even the definitive Wards demarcated within the LSGI. Hence as per Ext.P4 a few were removed from the voters list for having dual membership and the majority were disqualified for being outside the jurisdictional area of the Society. The Electoral Officer as is evident from Ext.P4, has proceeded on the basis of the bye-laws, the records available in the Society and the enquiries made thereon. 9. Out of the members alleged to be disqualified in Ext.P3 objection, the Electoral Officer has found it fit to disqualify only 700 people and none of the persons, who are disqualified, are before this Court. It is also trite that any aggrieved party is entitled to challenge the election if W.P.(C)Nos.24418 & 25301 of 2013 10 at all there is irregularity in the procedure adopted. The learned counsel for the petitioner in W.P.(c) No.25301 of 2013 however, would strenuously urge that the entire members pointed out by him to be disqualified; if at all to be allowed to exercise their franchise, it should be only on condition that their votes would be kept in a separate box and that the counting of the said votes should depend upon the final result of the writ petition. However this Court finds that it would not be proper for this Court, even after the elections, to go into the question whether any member was entitled to validly exercise his franchise and that necessarily would have to be looked into in a properly instituted proceeding and not under Article 226 of the Constitution of India. Having found that there is absolutely nothing on record, at this point of time, to show that the Electoral Officer has not exercised his authority properly in passing Ext.P4 order, this Court is not inclined to interfere with the same. When the original authority is not W.P.(C)Nos.24418 & 25301 of 2013 11 competent to make a roving enquiry, this Court definitely would not enter into such an exercise to pick holes in the order of the Electoral Officer. In view of the findings in the writ petition, this Court is of the opinion that the issue of _locus standi_ raised by the learned Special Government Pleader, can be left open. 10. On the above reasoning both the Writ Petitions are dismissed, without prejudice to the right of the parties to approach the appropriate forum to challenge the election in appropriate proceedings; if so advised. The Writ Petitions are dismissed leaving the parties to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE.** ln