High Court of KeralaSingle Judge2014-09-24Writ petition disposed of; parties to bear thei...

Padmanabhan Pallath, President of Beypore Service Co-operative Bank Ltd. v. State of Kerala and others

Case / Petition Number:WP(C).No. 2303 of 2013 (K)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2014-09-24
Court Decision / Holding: Writ petition disposed of; elections provisionally held with interim measures treated as provisional and subject to final orders under Section 69; parties to bear their own costs; petitioner may approach the statutory authority under Section 69 within 30 days.
Final Disposition: Writ petition disposed of; parties to bear their own costs; interim orders treated as provisional; petitioner may pursue Section 69 within 30 days.

Parties to the Case

Appellants / Petitioners

Padmanabhan Pallath, President of Beypore Service Co-operative Bank Ltd., and Delegate to the Kozhikode District Co-operative Bank Ltd.

Respondents

State of Kerala
Registrar of Co-operative Societies, Thiruvananthapuram
Joint Registrar of Co-operative Societies (General), Kozhikode District
Administrator, The Kozhikode District Co-operative Bank Ltd.
The Kozhikode District Co-operative Bank Ltd., represented by its General Manager
Electoral Officer for Election to the Kozhikode District Co-operative Bank Ltd., Asst. Registrar of Co-operative Societies (Planning)
Returning Officer for Election to the Kozhikode District Co-operative Bank Ltd./Asst. Registrar of Co-operative Societies (General)
State Co-operative Election Commissioner
Addl.9 Board of Directors, The Kozhikode District Co-operative Bank Ltd., represented by its President

Legal Representation & Advocates

Counsels for Petitioners

• Sri. M. M. Monaye
• Sri. M. Paul Varghese

Counsels for Respondents

• Sri D. Somasundaram (Govt Pleader)
• Sri R. Sudhish, SC
• Sri P.P. Jacob

Case Synopsis & Summary

This writ petition challenges the election convened for the 5th respondent, the Kozhikode District Co-operative Bank Ltd., on the ground that voter eligibility was improperly expanded beyond the membership of its constituting societies. The petitioner contends that as on 10 December 2007 only 374 primary cooperative societies were members of the 5th respondent bank; however, the draft voters list Ext.P5 shows 427, and the final voters list Ext.P7 shows 515 eligible voters. The core issues concern whether societies that were not members could vote and how deemed memberships under legislative amendments should be treated. Respondents rely on two deeming mechanisms: (i) Act 9 of 2009 restricting membership to credit societies, and (ii) Act 13 of 2012 deeming those who lost membership to regain it; additional deeming under Section 8A(2) of the Kerala Co-operative Societies Act, 1969 is cited. The petitioner argues that affiliation and membership are distinct concepts; this view was rejected by a Division Bench in W.A.1281/2013. The court notes the disputes are factual and unsuitable for roving inquiry under Article 226, directing that fact-finding proceed under Section 69 of the Act. Interim orders had kept elections provisional; the court treats the final result as provisional pending Section 69 adjudication. The decision cites L. Hirday Narain and Sulthan Bathery for doctrine and sustains the outcome, disposing of the petition with costs, while preserving the petitioner’s right to pursue Section 69 within 30 days.

Provisions of Law Cited

Kerala Co-operative Societies Act, 1969 – Section 8A(2)Kerala Co-operative Societies Act, 1969 – Section 69Kerala Co-operative Societies Act, 1969Constitution of India, Article 226Acts 9 of 2009Act 13 of 2012

Legal Doctrines & Maxims

Alternate remedy doctrine
Deeming provision concepts under Section 8A(2)
Provisional order subject to final disposition
Affiliation and membership as distinct concepts (discussed)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argued that the election to the 5th respondent bank was invalid because voters beyond the alleged base membership of 374 primary societies were allowed to vote. The extra voters arose from deemed memberships under amendments allowing re-entry or deeming of membership (Act 9 of 2009 and Act 13 of 2012) and deeming under Section 8A(2). It was argued that membership and affiliation are distinct concepts, a view allegedly rejected previously in some cases, and that factual disputes require evidence rather than writ relief. The petitioner stressed that interim orders created provisional elections and that any finality must wait for Section 69 proceedings.

Contentions of Respondents

The respondents contended that amendments and deeming provisions expanded the electorate lawfully; the draft and final voter lists reflect due process under the amended Acts; franchise in elections has been expanded by court orders and statutory mechanisms; the matter necessitates fact-finding under Section 69, and not a de novo writ-based determination, with interim orders allowing continued elections as provisional subject to 69 adjudication.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
L. Hirday Narain v. Income Tax Officer, Bareilly	AIR 1971 (SC) 33	Positive	Cited to justify that a High Court may proceed with a writ petition despite limited or alternate remedies and need not be dismissed when factual disputes require adjudication.
Sulthan Bathery Co-operative Agricultural and Rural Development Bank Ltd, Wayanad v. Jayaprakash P.R and Others	2014 (3) KHC 51	Positive	Cited to support upholding the procedure of extending the period of limitation while relegating the petitioner to the statutory remedy.
W.A.1281/2013	(Division Bench)	Mentioned Only	Referenced as controlling the proposition that affiliation and membership are not to be treated as two separate aspects; the Division Bench’s view is noted, but the current decision acknowledges it rather than adopting any broader principle.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 24TH DAY OF SEPTEMBER 2014/2ND ASWINA, 1936** ## **WP(C).No. 2303 of 2013 (K)** **--------------------------------------** **PETITIONER:** **--------------------** **PADMANABHAN PALLATH,PRESIDENT OF BEYPORE SERVICE CO-OPERATIVE BANK LTD. LL 35,ARAKKINAR,KOZHIKODE AND DELEGATE TO THE KOZHIKODE DISTRICT CO-OPERATIVE BANK LTD., RESIDING AT PALLATH HOUSE, BEYPORE FORT.P.O., KOZHIKODE-673015.** **BY ADVS.SRI.M.M.MONAYE SRI.M.PAUL VARGHESE** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA,REPRESENTED BY ITS SECRETARY TO GOVERNMENT,DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.** **2. REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM,PIN-695001.** **3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOZHIKODE DISTRICT, KOZHIKODE,PIN-673002.** **4. ADMINISTRATOR,THE KOZHIKODE DISTRICT CO-OPERATIVE BANK LTD. KALLAI ROAD,KOZHIKODE,PIN-673002.** **5. THE KOZHIKODE DISTRICT CO-OPERATIVE BANK LTD. KALLAI ROAD,KOZHIKODE-673002.REPRESENTED BY ITS GENERAL MANAGER.** **6. ELECTORAL OFFICER FOR ELECTION TO THE KOZHIKODE DISTRICT CO-OPERATIVE BANK LTD.,ASST. REGISTRAR OF CO-PERATIVE SOCIETIES (PLANNING),OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL0 KOZHIKODE DISTRICT, SAHAKARANA BHAVAN,VIKAS BUILDING,LINK ROAD, KOZHIKODE,PIN-673002.** **7. RETURNING OFFICER FOR ELECTION TO THE KOZHIKODE DISTRICT CO-OPERATIVE BAK LTD./ASST. REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),SAHAKARANA BHAVAN, VIKAS BUILDING,LINK ROAD,KOZHIKODE-673002.** **8. STATE CO-OPERATIVE ELECTION COMMISSIONER, OFFICE OF STATE CO-OPERATIVE ELECTION COMMISSION, PALAYAM, THIRUVANANTHAPURAM,PIN-695003.** **PTO** **...2...** ## **WP(C).No. 2303 of 2013 (K)** ## **ADDITIONAL R9 IMPLEADED** ## **Addl.9. BOARD OF DIRECTORS,THE KOZHIKODE DISTRICT CO-OPERATIVE** **BANK LTD.,KALLAI ROAD, KOZHIKODE,PIN - 673 002. REPRESENTED BY ITS PRESIDENT. ADDL. R9 IS IMPLEADED AS PER ORDER DATED 23/03/2013 IN IA NO.3673/2013.** **R1-R3,R6,R7 & R8 BY GOVT. PLEADER SRI.D.SOMASUNDARAM. R5 BY ADV. SRI.R.SUDHISH, SC, KOZHIKODE DIST.CO.OP. BANK LTD. ADDL.9 BY ADV. SRI.P.P.JACOB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **pk** ## **WP(C).No. 2303 of 2013 (K)** ## **APPENDIX** ## **PETITIONERS EXHIBIT:** **EXT.P1:TRUE COPY OF THE ACT 13/2012 PUBLISHED IN THE KERALA GAZETTE DATED 23.7.2012.** - **EXT.P2:TRUE COPY OF THE CIRCULAR NO.CB(3)7298/2012 DATED 22.11.2012 OF THE 2ND RESPONDENT.** **EXT.P3:TRUE COPY OF THE LIST OF 374 ELIGIBLE MEMBER SOCIETIES.** - **EXT.P4:TRUE COPY OF THE ELECTION NOTIFICATION DATED 21.12.2012 OF THE 8TH RESPONDENT.** - **EXT.P5:TRUE COPY OF THE DRAFT ELECTORAL ROLL DATED 8.1.2013 PUBLISHED BY THE 6TH RESPONDENT.** - **EXT.P6:TRUE COPY OF THE OBJECTION DATED 10.1.2013 SUBMITTED BY THE PETITIONER.** - **EXT.P7:TRUE COPY OF THE FINAL ELECTORAL ROLL DATED 16.1.2013 PUBLISHED BY THE 6TH RESPONDENT.** - **EXT.P8:TRUE COPY OF THE GOVERNMENT ORDER DATED 13.4.2012 PUBLISHED IN THE KERALA GAZETTE DATED 17.4.2012.** **EXT.P9:TRUE COPY OF THE INTIMATIONLETTER DATED 18.1.2007 SENT TO THE SOCIETY AT SERIAL NO.447 IN EXT.P7.** ## **RESPONDENTS EXHIBITS: NIL** ## **//TRUE COPY//** **P.S. TO JUDGE** **pk** ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 2303 of 2013 - - - - - - - - - - - - - - - - Dated 24[th] September, 2014 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** The petitioner was aggrieved with the convening of election to the 5[th] respondent Society mainly on the ground that Societies who were not members in the District Co-operative Bank will be permitted to vote in the election. The above writ petition was filed at the time of publication of final voters list. The petitioner contended that there were only 374 primary Cooperative Societies members of the 5[th] respondent, as on 10.12.2007. The draft voters list produced at Ext.P5 evidently showed 427 members and the final voters list at Ext.P7 indicated 515 members eligible to vote. The specific contention with respect to the membership being restricted to 374 Societies was on the ground that notices for general body **WP(C).2303/13** 2 meetings were issued to only the said 374 Societies. 2. The learned Special Government Pleader, Co-operation, however contends that there were two deemed memberships which were taken into account in preparation of the voters list. One of these was on the strength of the amendment made as per Ext.P1. It is submitted that earlier all Societies could claim membership under the District Co-operative Banks. In the year 2009, by Act 9 of 2009, an amendment was brought in, restricting the membership in the District Cooperative Banks to Credit Societies alone. The said came into force on 11.12.2009. Subsequently by Ext.P1, Act 13 of 2012, an amendment was made by which such Societies who lost their membership by virtue of the provisions of Act 9 of 2009 were deemed to have again become members of such District Co-operative Banks. The **WP(C).2303/13** 3 share amounts which stood transferred to the suspense account was also deemed to be the share amount in respect to the said Society. 3. Further deemed memberships were also to be allowed since sub-section (2) of Section 8A of the Kerala Co-operative Societies Act, 1969, provide for deeming a Society to be a member of the District Co-operative Bank, if an application made in that respect was unresponded for more than 60 days. With respect to the said deeming provision, there was a challenge on the ground that affiliation and membership should be considered as two different aspects which was negatived by the Division Bench of this Court in W.A.1281/2013. 4. Even then, the learned counsel appearing for the petitioner would point to the counter affidavit filed by the State. It has **WP(C).2303/13** 4 been noticed that there are 593 members who exercised their franchise in the election. The said fact, according to the learned Special Government Pleader, is only on account of the orders passed by this Court in petitions under Article 226 permitting individual Societies to exercise franchise in the elections. 5. These are all factual matters into which a roving enquiry would not be proper, in a petition under Article 226 of the Constitution of India. In fact, the petitioner ought to have initiated an Election Petition immediately after the results were published. However, the learned counsel specifically points out that this Court had directed conduct of elections and had directed the votes to be kept in separate boxes as also directed the results to be declared. However, such declaration of result was deemed to be provisional and subject to further orders **WP(C).2303/13** 5 in the writ petition as per the interim order dated 08.02.2013. 6. On a hearing of the writ petition, it may not be possible for this Court to examine as to which of the Societies in excess of the 374 pointed by the petitioner would come under either of the deeming provisions under Act 13 of 2012 or Section 8A and which of the Societies were permitted to vote by interim orders passed by this Court in separate writ petitions. All these would have to be necessarily, agitated before the fact finding authority which is provided for under Section 69 of the Kerala Cooperative Societies Act, 1969. **L. Hirday Narain v. Income Tax Officer, Bareilly (AIR 1971 (SC) 33)** held that if the High Court has entertained a writ petition despite there being an alternate remedy, then ordinarily it would be unjustifiable to dismiss the same, relegating **WP(C).2303/13** 6 the petitioners to such remedies unless the High Court finds that on the factual disputes arising in the case it would not be desirable to deal with them in a writ petition. That is the case herein and the disputes arising here requires to be adjudicated after leading evidence, either way, on facts. 7. In the circumstances of the interim order of this Court having deemed the elections to be provisional, on relegating the petitioner to the statutory remedies, the results declared would be considered as final. The said order having been passed today (24.09.2014) in disposal of the above writ petition, petitioner would have reserved his rights to approach the appropriate authority under Section 69 of the Kerala Co-operative Societies Act, 1969, within 30 days time as provided under Section 69 of the Kerala Co-operative Societies Act, 1969. The **WP(C).2303/13** 7 above procedure has been upheld by a Division Bench in **Sulthan Bathery Co-operative Agricultural and Rural Development Bank Ltd, Wayanad v. Jayaprakash P.R and Others (2014 (3) KHC 51 ).** In fact, such a procedure adopted of extending the period of limitation, was upheld by the Division Bench when relegating the petitioner to the alternate remedy available. The writ petition is disposed of leaving the parties to suffer their respective costs. Sd/- **K.VINOD CHANDRAN Judge** Mrcs //True Copy//