## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
## **THURSDAY, THE 13TH DAY OF FEBRUARY 2014/24TH MAGHA, 1935**
## **WP(C).No. 2541 of 2014 (P)**
## **-------------------------------------**
**PETITIONER:**
- **-------------------**
**N.S.SANTHAKUMAR, AGED 43 YEARS, S/O. NATARAJAN, SANTHALAYAM, THEKKUMURI, KIZHAKKE KALLADA.P.O, KOLLAM DISTRICT.**
**BY ADVS.SMT.A.G.ANEETHA SMT.M.KABANI DINESH**
**RESPONDENTS:**
**------------------------**
**1. STATE OF KERALA, REPRESENTED BY SECRETARY, CO-OPERATION DEPARTMENT, THIRUVANANTHAPURAM-695 001.**
**2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL) CO-OPERATIVE JOINT REGISTRAR OFFICE, KOLLAM-691 001.**
**3. ELECTORAL OFFICER, EAST KALLA (SOUTH) SERVICE CO-OPERATIVE BANK, KOLLAM-691 001.**
**4. EAST KALLAD (SOUTH SERVICE CO-OPERATIVE BANK REPRESENTED BY SECRETARY IN CHARGE, KOLLAM-691001.**
**R1 TO R3 BY SPL.GOVERNMENT PLEADER SRI.D.SOMASUNDARAM R4 BY ADV. SRI.GEORGE POONTHOTTAM**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-02-2014, ALONG WITH WPC. 2607/2014, WPC. 3243/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Msd.**
## **WP(C).No. 2541 of 2014 (P)**
## **--------------------------------------**
## **APPENDIX**
**----------------**
## **PETITIONER(S)' EXHIBITS:**
**---------------------------------------**
**EXT.P1: COPY OF SHOW CAUSE NOTICE DATED 03-10-2013. EXT.P2: COPY OF REPLY ALONGWITH COPIES OF TAX PAID RECEIPTS AND ORDER OF 2ND RESPONDENT REJECTING AMENDMENT. EXT.P3: COPY OF ORDER ISSUED TO PETITIONER ON DATED 14-12-2013 REMOVING HIM FROM MEMBERSHIP. EXT.P4: COPY OF APPEAL SENT ON 10-01-2014 SHOWING POSTAL REGISTRATION STAMP. EXT.P5: COPY OF NOTIFICATION FOR GENERAL BODY SHOWING CONTAINING EXISTING AREA OF OPERATION IN DEEPIKA DAILY DATED 21-03-2013. EXT.P6: COPY OF THE MAP OF KIZAKKE KALLADA PANCHAYATH MARKING PETITIONER'S RESIDENCE AND PROPERTIES. EXT.P7: COPY OF ELECTION NOTIFICATION PUBLISHED IN MALAYALA MANORAMA DAILY DATED 13-01-2014.**
## **RESPONDENT(S)' EXHIBITS:**
**------------------------------------------**
**NIL**
**//TRUE COPY//**
## **P.A.TO JUDGE.**
**Msd.**
## **K. VINOD CHANDRAN, J. ===================== W.P.(C) No. 2541 of 2014, 2607 of 2014 & 3243 of 2014 ====================== Dated this the 13th day of February, 2014**
## **J U D G M E N T**
The petitioners in the above Writ Petitions are the members of the East Kallada (South) Service Co-operative Bank Ltd. (hereinafter referred to as 'respondent Society'), who have been removed from the membership allegedly in the eve of the elections. The 21 petitioners in W.P.(C) No. 2707/2014 claim that, though they were issued with notices threatening removal and they had submitted their replies, no order as such was issued to them. Individual petitioners in W.P.(C) No. 2541/2014 and 3243/2014, however admit that, they were issued with orders under Rule 16(3) removing them from membership and they had also taken up remedies against the removal which remedies according to them, are not efficacious especially in the context of the elections being scheduled on 16.02.2014. The prayer of the
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petitioners is that, the election be interdicted till a decision is taken on the removal of membership, which in W.P.(C) No. 2607/2014, is alleged to be over 3000 in number. The petitioners alternatively pray that, the votes of such members removed may be kept in separate boxes, so that if the removal is eventually found to be illegal then those votes also could be counted.
2. The Special Government Pleader (Co-operation) on instruction, submits that, the complaints placed before the Electoral Officer were considered and 39 members who did not figure in the draft voters list, were included in the final voters list. The special Government Pleader also submits that, on a prima facie enquiry such persons were found to be entitled to be included in the final voters list and that has been done. The learned counsel appearing for the respondents, being the Administrative Committee contend that, the removal of members were done validly by a resolution passed by the Administrative Committee and
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individual notices were issued before such removal was effected. The replies submitted were also considered and on the removal being effected, the individual members were issued with such orders. The learned counsel also would take this Court through the specific averments made in W.P.(C) No. 3243/2014 and 2541/2014 that, the petitioners therein, had, in fact, challenged such removal orders. However, an interdiction of the election or the relief of keeping the votes in a separate box, is not possible on the facts disclosed in the above case is the submission of the party respondent as also the department.
3. Evidently, the respondent Society has around 10000 members. On 04.06.2012 there was a supersession of the duly elected Committee and an Administrative Committee was appointed. A resolution seems to have been taken by the Administrative Committee on 15.10.2013, wherein the election was scheduled on 16.02.2014. It is also pointed out by the learned counsel for the petitioners
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that, an attempt to create a de-limitation removing certain areas from the area of operation of the Society, though successfully resolved in the General Body, was refused registration by the department. In such circumstance, the petitioners are all liable to be included in the draft voters list as also the final voters list and their valuable right of franchise cannot be denied is the contention.
4. Despite the assertions to the contrary, it is clear that, the petitioners had an alternate remedy which had been availed of by atleast two individual petitioners who are before this Court. The contention of the other petitioners that, they were not issued with orders is refuted by the learned counsel for the respondent Society, producing the despatch register which according to him indicates the notice having been given to the respective persons who were removed from the membership. This Court has not looked into such registers, since this Court would not enter into fact adjudication, by the very nature of
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the writ remedy invoked. It is not the removal of members or the eligibility of the persons to be continued as a member or the efficacy of such removal that is being considered by this Court.
5. It is trite that, there can be no interdiction of elections unless clear illegality is pointed out. The grievance of the petitioners have been addressed by the Electoral Officer which has also led to inclusion of 39 members. According to the Electoral Officer, the other objections were found to be unsustainable on the prima facie enquiry conducted by the said officer. A Division Bench in **Viayakumar v. State of Kerala in [96(1)KLT 285]** has held that, what is intended on a consideration of objections, with respect to the draft voters list, is not a roving enquiry on the membership as such, but a prima facie enquiry as to whether members are entitled to cast their votes or not. The membership issue as such is not one, which could be dealt with by the Electoral Officer. In the instant case, it
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has been noticed that, the Electoral Officer has submitted that, the complaints received by him were considered and 39 persons have been included. Obviously with respect to the others, they were not able to establish before the Electoral Officer that, they are entitled to exercise their franchise.
6. In any event, the issue of membership and the removal from membership are not issues which can be considered by this Court at this stage, or at a later stage. Definitely the petitioner would have their remedies against the removal and any contentions regarding the procedure adopted or an improper and illegal drawing up of voters list could be raised in a validly instituted election petition.
7. In the circumstances explained above, this Court is not persuaded to interfere with the election. With respect to the members removed by the Administrative Committee, being permitted to poll their votes in a separate box, it has to be noticed that, the same is not practicable.
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Primarily but for a vague allegation that around 3000 members have been removed from the membership, there is no specific contention as to who were the said members or even that the members in a particular area were en-masse removed from the membership. Further if at all, a separate box is kept, then, that could only enure to the benefit of the petitioners who are before this Court, who number only 24, out of which 3 are stated to be included in the final voters list, by the Electoral Officer. It is also to be noticed that the illegality if any, in exclusion from the draft and final voters list, is not one common issue. Individual members have been found to be residing outside the area of operation or not having residence within the area of operation of the respondent Society. The challenge against such removal also will have to be considered on the distinct fact situation in each case. Eventually even if one challenge against the removal fails, there would be no method by which the ballot paper of such voter could be identified.
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Hence, the polling in a separate box would yield no result and would be a futile exercise. Hence, the alternative prayer made by the petitioners is also rejected.
Writ Petitions are, for the above reasons, dismissed. No cost.
Sd/-
**K. VINOD CHANDRAN, JUDGE**
SB
