Kesavadas T.G. v. Returning Officer (Unit Inspector, Kottappady) (Office of the Assistant Registrar of Co-operative Societies (General), Kothamangalam); The Kothamangalam Service Cooperative Bank Ltd No.354; The Electoral Officer; The State Co-operative Election Commission; The Joint Registrar of Co-operative Societies (General), Ernakulam; Addl.R5–Addl.R8

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 16TH DAY OF OCTOBER 2014/24TH ASWINA, 1936** ## **WP(C).No. 15995 of 2014 (Y)** ## **----------------------------** ## **PETITIONER :** **------------------------** **KESAVADAS T.G.,COMMITTEE MEMBER THE KOTHAMANGALAM SERVICE CO-OPERATIVE BANK LTD NO. 354, RESIDING AT THOTTUPURATH HOUSE, KUTHUKUZHI P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT.** **BY ADVS.SRI.M.SASINDRAN SRI.V.VENUGOPAL** ## **RESPONDENT(S):** ## **----------------------------** **1. THE RETURNING OFFICER (UNIT INSPECTOR KOTTAPPADY OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVES SOCIETIES (GENERAL), KOTHAMANGALAM) THE KOTHAMANGALAM SERVICE CO-OPERATIVE BANK LTD NO. 354, KUTHUKUZHI P.O. - 686 691, KOTHAMANGALAM, ERNAKULAM DISTRICT.** **2. THE ELECTORAL OFFICER, (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KOTHAMANGALAM) THE KOTHAMANGALAM SERVICE CO-OPERATIVE** **BANK LTD.NO.354,KUTHUKUZHI.P.O.- 686 691, KOTHAMANGALAM, ERNAKULAM DISTRICT.** **3. THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM -695 001.** **4. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ERNAKULAM -682 001.** ***ADDL.R5 IMPLEADED** ***ADDL.R5. THE KOTHAMANGALAM SERVICE CO-OPERATIVE BANK LTD NO.354,KUTHUKUZHI.P.O.-686 691, KOTHAMANGALAM, ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY.** ***ADDL. R5 IS IMPLEADED AS PER ORDER DATED 09/07/2014 IN IA.NO. 8970/2014.** ****ADDL.R6 & R7 IMPLEADED** ****Addl.R6. ABRAHAM JOSEPH,** **S/O.JOSEPH, NEDUMPURATH HOUSE, KUTHUKUZHI.P.O. KOTHAMANGALAM, ERNAKULAM DISTRICT -686 691.** **2/-** **sts** **-2-** ## **WP(C).NO.15995/2014** ****Addl.R7. SHAJAN VARGHESE,** **S/O.VARGHESE, MARANCHERRY PUTHENPURA, KUTHUKUZHI.P.O.,KOTHAMANGALAM, ERNAKULAM DISTRICT -686 691.** ****ADDL. R6 & R7 ARE IMPLEADED AS PER ORDER DATED 31/07/2014 IN IA.NO. 10003/2014.** ## *****ADDL.R8 IMPLEADED** *****ADDL.R8: BABY XAVIER,S/O.XAVIER,** **PANICHAPADY, KUTHUKUZHY.P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT-686 691** *****ADDL.R8 IS IMPLEADED AS PER ORDER DATED 16/10/2014 IN IA.NO.9616/2014** **R1 TO R4 BY SPL.GOVERNMENT PLEADER(CO-OP) SRI.D.SOMASUNDARAM ADDL.R5 BY ADV. SRI.M.B.PRAJITH ADDL.R6 BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR ADDL.R7 & R8 BY ADV. SMT.S.R.NEETHU RAJ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 15995 of 2014 (Y) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT-P1TRUE COPY OF THE NOTIFICATION DATED 26/05/2014 ISSUED BY THE 3RD RESPONWDENT CO-OPERATIVE ELECTION COMMISSION.** **EXHIBIT-P2TRUE COPY OF THE ORDER NO. KT 432/2014 DATED 18/06/2014 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT-P3TRUE COPY OF THE NOTICE DATED 18/06/2014 PUBLISHING THE FINAL VOTERS LIST.** **EXHIBIT-P4TRUE COPY OF THE EXTRACTS THE FORM 6 B REGISTER WHICH WOULD SHOW THE UNFILLED FORM 6 B IN RESPECT OF MEMBERS WHO WERE NOT ISSUED WITH IDENTITY CARDS.** **EXHIBIT-P5TRUE COPY OF THE ORDER NO.E (1)/1283/2014/SCEC DATED 24/6/2014 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT-P6TRUE COPY OF THE RESOLUTION DATED 3/7/2014 OF THE COMMITTEE OF THE SOCIETY (PETITION TO RECEIVE THE DOCUMENT FILED ON 9/7/2014 IN I.A.NO.9234/14 IN WP(C). NO.15995/2014 EXHIBIT-P7TRUE COPY OF THE RESOLUTION DATED 14/7/2014 OF THE COMMITTEE OF THE SOCIETY (PETITION TO RECEIVE THE DOCUMENT FILED ON 16/7/2014 I.A.NO.9612/2014 IN WP(C). NO.155995/2014)** - **EXHIBIT -P8TRUE COPY OF THE G.O. DATED 20/3/2014 (PETITION TO RECEIVE THE DOCUMENT FILED ON 16/7/2014 I.A.NO.9612/14 IN WP(C). NO.15995/2014)** **EXHIBIT-P9TRUE COPY OF THE AMENDMENT OF THE BYE LAWS, REGARDING THE CONSTITUTION OF WARDS( COUNTER AFFIDAVITIA.NO.10974/2014 IN WP(C).NO.15995/2014)** **EXHIBIT-P10- TRUE COPY OF THE CERTIFICATE ISSUED BY THE SECRETARY OF THE MUNIFIPALITY DATED 17/7/2014 (COUNTER AFFIDAVITIA.NO.10974/2014 IN WP(C).NO.15995/2014)** - **EXHIBIT-P11TRUE COPY OF THE RELEVANT EXTRACTS FROM THE VOTERS LIST OF WARD NO.9 OF KOTHAMANGALAM MUNICIPALITY (COUNTER AFFIDAVIT IA.NO.10974/14 IN WP(C).NO.15995/2014)** - **EXHIBIT-P11(A)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE VOTERS LIST OF WARD NO.10 OF KOTHAMANGALAM MUNICIPALITY (COUNTER AFFIDAVIT IA.NO.10974/14 IN WP(C).NO.15995/2014)** **EXHIBIT-P11(B)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE VOTERS LIST OF WARD NO.11 OF KOTHAMANGALAM MUNICIPALITY (COUNTER AFFIDAVIT IA.NO.10974/14 IN WP(C).NO.15995/2014)** **2/-** **sts** **-2-** ## **WP(C).NO.15995/2014** **EXHIBIT-P11(C)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE VOTERS LIST OF WARD NO.12 OF KOTHAMANGALAM MUNICIPALITY (COUNTER AFFIDAVIT IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P11(D)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE VOTERS LIST OF WARD NO.13 OF KOTHAMANGALAM MUNICIPALITY (COUNTER AFFIDAVIT IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P11(E)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE VOTERS LIST OF WARD NO.14 OF KOTHAMANGALAM MUNICIPALITY (COUNTER AFFIDAVIT IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P11(F)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE VOTERS LIST OF WARD NO.15 OF KOTHAMANGALAM MUNICIPALITY (COUNTER AFFIDAVIT IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P11(G)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE VOTERS LIST OF WARD NO.16 OF KOTHAMANGALAM MUNICIPALITY (COUNTER AFFIDAVIT IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P11(H)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE VOTERS LIST OF WARD NO.17 OF KOTHAMANGALAM MUNICIPALITY (COUNTER AFFIDAVIT IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P12TRUE COPY OF THE RELEVANT EXTRACTS FROM THE AUDIT REPORTS OF THE YEAR FROM 2002-2003 (COUNTER FILED IN IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P12(A)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE AUDIT REPORTS OF THE YEAR FROM 2003-2004 (COUNTER FILED IN IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P12(B)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE AUDIT REPORTS OF THE YEAR FROM 2004-2005 (COUNTER FILED IN IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P12(C)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE AUDIT REPORTS OF THE YEAR FROM 2005-2006 (COUNTER FILED IN IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P12(D)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE AUDIT REPORTS OF THE YEAR FROM 2006-2007 (COUNTER FILED IN IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P12(E)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE AUDIT REPORTS OF THE YEAR FROM 2007-2008 (COUNTER FILED IN IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P12(F)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE AUDIT REPORTS OF THE YEAR FROM 2008-2009 (COUNTER FILED IN IA.NO.10974/14 IN WP(C).NO.15995/2014) EXHIBIT-P12(G)TRUE COPY OF THE RELEVANT EXTRACTS FROM THE AUDIT REPORTS OF THE YEAR FROM 2009-2010 (COUNTER FILED IN IA.NO.10974/14 IN WP(C).NO.15995/2014)** **3/-** **-3-** ## **WP(C).NO.15995/2014** **EXHIBIT-P12(H)-** **TRUE COPY OF THE RELEVANT EXTRACTS FROM THE AUDIT REPORTS OF THE YEAR FROM 2010-2011(COUNTER FILED IN IA.NO.10974/14 IN WP(C).NO.15995/2014)** **EXHIBIT-P12(I)-** **TRUE COPY OF THE RELEVANT EXTRACTS FROM THE AUDIT REPORTS OF THE YEAR FROM 2011-2012 (COUNTER FILED IN IA.NO.10974/14 IN WP(C).NO.15995/2014)** **EXHIBIT-P12(J)-** **TRUE COPY OF THE RELEVANT EXTRACTS FROM THE AUDIT REPORTS OF THE YEAR FROM 2012-2013 (COUNTER FILED IN IA.NO.10974/14 IN WP(C).NO.15995/2014)** **EXHIBIT-P13-** **TRUE COPY O THE G.O.(P) NO.102/2014/CO-OP DATED 12/8/2014** **RESPONDENT(S)' EXHIBITS ----------------------------------------** **EXHIBIT-R6(A) TRUE COPY OF THE REQUEST FILED BEFORE THE 5TH RESPONDENT DATED 04/06/2014** **EXHIBIT-R6(B) TRUE COPY OF THE COMPLAINT FILED BEFORE THE 2ND RESPONDENT DATED 11/6/2014** **EXHIBIT-R6(C) TRUE COPY OF THE COMPLAINT FILED BEFORE THE 2ND RESPONDENT DATED 16/06/2014 ALONG WITH ANNEXURE.** **EXHIBIT-R6(D) TRUE COPY OF THE COMPLAINT FILED BEFORE THE 3RD RESPONDENT DATED 17/06/2014.** **EXHIBIT-R6(E) TRUE COPY OF THE NOTICE DATED 19/08/2014 ISSUED BY THE ENQUIRY OFFICER TO ELIZABETH RAPHEL.** **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 15995 of 2014 - - - - - - - - - - - - - - - - Dated 16[th] October, 2014 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** Though detailed arguments were addressed on the question of powers of Election Commission, this Court is of the opinion that the same need not be answered at this stage, since primarily the concern of all parties is the conduct of elections to the respondent Society. 2. The brief facts to be noticed are that the election was notified as per Ext.P1. The Managing Committee which was going out of office, a member of which is the petitioner herein, had handed over a voters list as provided under Rule 35A(4) of the Kerala Cooperative Societies Rules, 1969, (for short 'the Rules'). Objections were received by the Electoral Officer as also the Election **WP(C).15995/14** 2 Commission regarding inclusion of members who were outside the area of operation. The Electoral Officer, considered the issue and passed Ext.P2 order, wherein certain members were removed. The Electoral Officer in Ext.P2 also observed that the time of two hours in the election notification is insufficient insofar as considering the objections since the membership cannot be determined on the basis of address alone for reason of eligibility being conferred on the ground of residence, ownership of agricultural land or employment within the area of operation. 3. In any event, on receipt of complaint, the Election Commission is said to have, himself, personally inspected the list as also the 6B register of the Society. The Election Commission by Ext.P5, found that there are included certain members who are outside the **WP(C).15995/14** 3 area of operation and that 6B registers are not maintained properly. In such circumstances, the election notified as per Ext.P1 was adjourned as per Ext.P5. The issue which was agitated before this Court by the petitioner was that it was the exclusive domain of the Managing Committee to have prepared and proffered the voters list to the Electoral Officer and then the Electoral Officer could have removed any person, he _prima facie_ finds, not entitled to exercise franchise. 4. The learned Special Government Pleader, however, would contend that an examination of the electoral roll also would be a valid exercise which could be undertaken by the Election Commission. As noticed above, this question need not now be considered since in the present case, the complaint is with respect to 680 persons specifically named in Ext.R6(c) filed before the Electoral Officer as also the **WP(C).15995/14** 4 Election Commission; by the additional 6[th] respondent herein. No one else has raised a complaint or filed any objection before the Electoral Officer. 5. While the matter was admitted, there was also a direction to appoint three members of the outgoing Managing Committee as Administrative Committee members. One other objection raised by the additional 6[th] respondent is that the present Administrative Committee members are persons who are facing Section 65 enquiry and hence would not be entitled to continue as Administrative Committee members. 6. With respect to the contention regarding appointment of three members by the outgoing Committee, as the Administrative Committee members, earlier, this Court had, **WP(C).15995/14** 5 while disposing of a case, directed appointment of Committee members from the existing Board of Directors; which matter was taken up in appeal. A Division Bench of this Court in W.A.214 of 2014 by judgment dated 12.02.2014, though upheld the judgment, found that the judgment directed appointment of members against whom enquiry was initiated and to that extent the judgment was overturned. The Officer of the Department was directed to be appointed as the Administrator. 7. Considering the binding precedent in the judgment in George v. The Board of Directors of the Chittattukara Service CoOperative Bank Ltd., in W.P.(C).214 of 2014 dated 12.02.2014, this Court necessarily has to modify the interim order granted herein. Hence, there shall be a direction to the Joint Registrar to immediately appoint an Officer of the Department who is not the Assistant ## **WP(C).15995/14** 6 Registrar having jurisdiction over the respondent Society; as Administrator of the Society. The three Committee members shall immediately step down. 8. The Administrator so appointed, will have to pass a resolution for election and forward the same to the Election Commission. In the context of the election having been postponed without publication of the final voters list, necessarily the list framed by the outgoing Managing Committee would have to be handed over to the Electoral Officer; however, after considering the specific objections raised with respect to the 680 persons referred to in Ext.R6(c). The Administrator hence, shall issue notice to the 680 persons, consider their objections and hand over the list after removing any of the members amongst the 680 persons, who are not entitled to exercise their franchise. It **WP(C).15995/14** 7 is made clear that the list shall be tinkered with by the Administrator only with respect to the 680 members, if at all; against whom objections have been raised and upon which the election was postponed. The Administrator shall ensure that the list is finalized within two months from the date of appointment. The Administrator shall also ensure that the election is conducted within three months there from. The writ petition is disposed of, leaving the parties to suffer their respective costs. **==> picture [26 x 12] intentionally omitted <==** ## **K.VINOD CHANDRAN Judge** Mrcs //True Copy//