The Managing Committee, Kalloorkkad Farmers Service Co-operative Bank Ltd. v. State Co-operative Election Commission; Baby Augustine v. Joint Registrar of Co-operative Societies (General) & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944** **WP(C) NO. 36272 OF 2022** ## **PETITIONER:** **THE MANAGING COMMITTEE, KALLOORKAD FARMERS SERVICE CO-OPERATIVE BANK LTD KALLOORKAD FARMERS SERVICE CO-OPERATIVE BANK LTD. NO.2605, KALLOORKAD, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686668, REPRESENTED BY ITS PRESIDENT.** **BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE ANSHIN K.K** ## **RESPONDENTS:** - **1 STATE CO-OPERATIVE ELECTION COMMISSION (SCEC) 3RD FLOOR, CO BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN CODE: -695 033, REPRESENTED BY ITS SECRETARY.** **2 THE ELECTORAL OFFICER/ [ THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, MUVATTUPUZHA ], KALLOORKAD FARMERS SERVICE CO-OPERATIVE BANK LTD. NO.2605, KALLOORKAD, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686668.** **3 THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686668.** **4 MR. BABY AUGUSTINE, LDF KALLOORKAD PANCHAYAT COMMITTEE CONVENER, KALLOORKAD, MUVATTUPUZHA, ERNAKULAM DISTRICT - 686668.** **SR.GP. BIMAL K. NATH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH W.P.(c) NO.33982/2022 ON 11.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NOS. 36272 & 33982 of 2022** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944** ## **WP(C) NO. 33982 OF 2022** ## **PETITIONER:** **BABY AUGUSTIN AGED 64 YEARS (MEMBER NO. 3867) AGED 64 YEARS, S/O. AUGUSTIN, RATHAPILLIL HOUSE, P.O. KALLOORKKAD, MUVATTUPUZHA, ERNAKULAM PIN-686 668.** **BY ADVS. P.N.SANTHOSH K.P.GEETHA MANI** ## **RESPONDENTS:** - **1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR, CIVIL STATION, KAKKANAD, PIN - 682 030.** - **2 ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),OFFICE OF THE ASSISTANT REGISTRAR, MUVATTUPUZHA, AARAPUZHA ROAD, ERNAKULAM DIST. PIN 686 661.** - **3 THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, OFFICE OF THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM, PIN - 695 001.** - **4 THE KALLOORKKAD FARMER'S CO-OPERATIVE BANK LTD. REP. BY ITS MANAGING DIRECTOR, P.O. KALLOORKKAD, MUVATTUPUZHA, ERNAKULAM DIST.,PIN - 686 668.** - **5 THE MANAGING COMMITTEE THE KALLOORKKAD FARMER'S CO-OPERATIVE BANK LTD. REP. BY ITS PRESIDENT, P.O. KALLOORKKAD, MUVATTUPUZHA, ERNAKULAM DIST., PIN - 686 668.** **WP(C) NOS. 36272 & 33982 of 2022** **3** **BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE** ## **SC C.M.NAZAR; GP RIYAL DEVASSY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ALONG WITH W.P.(C) NO.36272 OF 2022 ON 11.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NOS. 36272 & 33982 of 2022** **4** ## **JUDGMENT** ## **Dated this the 11th day of November, 2022** The petitioner in W.P.(C) No. 36272 of 2022 is the Managing Committee of the Kalloorkkad Farmers Service Co-operative Bank (for short 'the Society'). The petitioner in W.P.(C) No. 33982 of 2022 is a member of the Society. The next election to the managing committee of the Society is notified to be held on 10.12.2022. The process of election has now reached the stage of consideration of objections to the draft voters list. In W.P.(C) No. 36272 of 2022, the grievances is againstt Exts.P2 and P3 communications issued by the Assistant Registrar (General), Muvattupuzha, requiring the managing committee to produce details regarding of members against whose inclusion in the voters list, the petitioner in W.P.(C) No. 33982 of 2022 has raised objection and is seeking removal from the voters list. In W.P.(C) No. 33982 of 2022, the prayer is for a direction to the electoral officer to remove the ineligible members from the voters list based on the petitioner's objection. 2. Learned Senior Counsel appearing for the managing committee contended that the Assistant Registrar, in that capacity, cannot require the managing committee to produce evidence before the Electoral Officer, which office also he is holding. It is submitted **WP(C) NOS. 36272 & 33982 of 2022** **5** that under the scheme of the Co-operative Societies Act, the role of Assistant Registrar and Electoral Officer are entirely different. While the Assistant Registrar is a departmental official with certain supervisory powers over Co-operative Societies, in his capacity as Electoral Officer, the Assistant Registrar is bound to act as an independent person, so as to ensure conduct of free and fair elections. While acting in such capacity, he has to strictly abide by the procedure prescribed under Rule 35A of the Kerala Co-operative Societies Rules and cannot exercise his administrative or supervisory powers. It is contended that the Electoral Officer, while taking a decision on the objections, cannot conduct a roving enquiry and cannot tamper with the voters list in the absence of specific objections. In support of this contention, reliance is placed on the decision in _Vijayakumar v. Joint Registrar [1996 (1) KLT 285]_ . 3. Advocate P.N.Santhosh appearing for the petitioner in W.P.(C) No. 33982 of 2022 submits that the petitioner has raised valid objections against the inclusion of ineligible members in the voters list. It is contended that, going by Rule 35 A (4) of the KCS Rules, the Electoral Officer is bound to consider the objections before publishing the final voters list. Learned counsel submits that the petitioner has sent objection to the Electoral Officer and Exts.P2 and P3 communications produced in the other case, issued in the name **WP(C) NOS. 36272 & 33982 of 2022** **6** of Assistant Registrar can only be a mistake. 4. Learned Government Pleader submitted that the decision cited by the Senior Counsel was rendered with reference to Rule 35 of the KCS Rules which has undergone major changes after the 97[th] Constitutional Amendment. Under Rule 35, it was for the Returning Officer to conduct the election by himself, whereas after the amendment, Rule 35A confers the Electoral Officer with certain functions and duties. The time limit of 3 days for filing objections in Rule 35 now stands enhanced to 7 days under Rule 35A. As such the dictum laid down in _Vijayakumar v. Joint Registrar [1996 (1) KLT 285]_ cannot _ipso facto_ be made applicable to the case at hand. 5. Learned Standing Counsel for Co-operative Election Commission reiterated that Rule 35 A mandates the consideration of objections by the Electoral Officer and the petitioner in W.P.(C) No. 33982 of 2022 having raised objections, it is bound to be considered before publishing the final voters list. 6. As per Rule 35 A (4) of the Co-operative Societies Rules, the Chief Executive of the Society is to provide an up-to-date list of voters, duly approved by the committee, to the Electoral Officer. Thereafter, it is the duty of the Electoral Officer to publish the preliminary voters list and call for objections, if any within 7 days of publication. After the stipulated period, the electoral officer should **WP(C) NOS. 36272 & 33982 of 2022** **7** publish the final voters list. This essentially means that,after calling for the objections, the Electoral Officer has to consider the objections and take appropriate action before publishing the final voters list. Although, learned Government Pleader contended that the decision in _Vijayakumar v. Joint Registrar_ may not now be applicable in view of the amendment to Rule 35, the dictum laid down therein, as to the manner in which the objections are to be considered, will definitely apply. In this context, it may be apposite to read the relevant portion of the judgment and extracted hereunder; _“16. ...In order to arrive at a proper decision it is open to him to conduct a summary enquiry to be satisfied about the sustainability or otherwise of the objections. But, he can do so only if the objections are specific and definite against each individual member which can be subjected to verification with reliable materials that may be made available to him by the objections and the authorities of the Society. He is not expected to make a roving enquiry._ _17. It is he who is to be satisfied about the correctness or otherwise of the objections. He cannot simply forward the objections to the authorities of the society for their verification. If, however, the objections are general or vague in nature or appear to be prima facie baseless, the Returning Officer is not bound to make any enquiry. ....”_ **WP(C) NOS. 36272 & 33982 of 2022** **8** Therefore, while accepting the arguments advanced by Advocate P.N.Santhosh that the objections raised by his client are bound to be considered, it is essential to remind the Electoral Officer that such consideration should be strictly in accordance with the dictum laid down in _Vijayakumar v. Joint Registrar_ extracted above. 7. I also find merit in the contention that, although the office of Assistant Registrar and Electoral Officer are manned by the same individual, one cannot be the alter ego of the other. The Cooperative Societies Act and Rules has clearly laid down the functions and duties of the Assistant Registrar and Electoral Officer. Therefore, while dealing with the objections to the voters list, the Electoral Officer is bound to ensure that he functions as an independent authority, distanced from his role as the Assistant Registrar. The writ petitions are disposed of with the above observations and leaving it open for the Electoral Officer to take appropriate decision on the objections, in the light of the observations in this judgment and the decision in _Vijayakumar v. Joint Registrar._ Sd/- ## **V.G.ARUN JUDGE** APA **WP(C) NOS. 36272 & 33982 of 2022** **9** ## **APPENDIX OF WP(C) 36272/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE NOTIFICATION NO. E(2)6396/ 2022/S.C.E.C. DATED 21.10.2022 ISSUED BY THE 1ST RESPONDENT ELECTION COMMISSION. Exhibit P2 TRUE COPY OF THE LIST PROVIDED BY THE ASSISTANT REGISTRAR, WHO IS ARRAYED AS THE 3RD RESPONDENT IN THE WRIT PETITION, ALONG WITH COVERING LETTER NO. ARG MPA 865/22 (U1(2) DATED 31.10.2022.** **Exhibit P3 TRUE COPY OF THE LIST GIVEN BY THE 3RD RESPONDENT ALONG WITH COVERING LETTER NO. ARG MPA 865/22 (U1(2) DATED 09.11.2022.** **WP(C) NOS. 36272 & 33982 of 2022** **10** ## **APPENDIX OF WP(C) 33982/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE REPRESENTATION DATED 04.05.2022 SUBMITTED BY THE PETITIONER BEFORE THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES, MUVATTUPUZHA. Exhibit P2 TRUE COPY OF THE REMAINDER DATED 27.05.2022 ALONG WITH A LIST OF MEMBERS WHO ARE RESIDING OUTSIDE THE AREA OF OPERATION OF THE SOCIETY. Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 15.10.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 15.10.2022 SUBMITTED BY THE PETITIONER BEFORE THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION.**