T.K. Porinchu v Thrissur District Co-operative Hospital Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933** **WP(C).No. 31957 of 2011(T)** **-------------------------------------** **PETITIONER(S):** **------------------------** **T.K.PORINCHU, MEMER NO.12-78, TRICHUR DISTRICT CO-OPERATIVE HOSPITAL LIMITED NO.R-306, SHORNUR ROAD, TRICHUR, 680 020.** **BY ADV. SRI.GEORGE POONTHOTTAM** **RESPONDENT(S):** **-------------------------** **1. TRICHUR DISTRICT CO-OPERATIVE HOSPITAL LIMITED NO.R-306, SHORNUR ROAD, TRICHUR, REPRESENTED BY THE SECRETARY/ADMINISTRATOR-680 020.** **2. THE RETURNING OFFICER (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(G), CHAVAKKAD) TRICHUR DISTRICT CO-OPERTIVE HOSPITAL LIMITED NO.R-306, SHORNUR ROAD, TRICHUR 680 020.** ## ***ADDL. R3 IMPLEADED:** ***R3. T.A. PREMANANDAN, AGED 54 YEARS, S/O.T.K. APPUNNI, THANEPARAMBIL, THAMARAYOOR, KOTTAPPADY, THRISSUR.** ***ADDL. R3 IMPLEADED AS PER ORDER DATED 2.12.2011 IN I.A.NO.19388/2011** **R1 BY ADV.SRI.P.N. MOHANAN R2 BY GOVERNMENT PLEADER SRI.D. SOMASUNDARAN R3 BY ADV.SRI.M. SASINDRAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VPV** ## **WPCNO.31957/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 : COPY OF THE RESOLUTION ADOPTED BY THE SOCIETY DATED 31.01.2010. EXT.P2 : COPY OF THE ELECTION NOTIFICATION DATED 31.10.2011. EXT.P3 : COPY OF THE OBJECTION DATED 10.11.2011 BY THE PETITIONER. EXT.P3(A): TYPED COPY OF THE EXT.P3. EXT.P4 : COPY OF THE COMMUNICATION GIVEN BY THE 2ND RESPONDENT TO THE PETITIONER.** ## **RESPONDENT'S EXHIBITS:** **ANNEXURE R3(A): COPY OF THE IDENTITY CARD ISSUED BY THE SOCIETY IN FORM 6A, TO THIS DEPONENT.** ## **/TRUE COPY/** ## **P.A. TO JUDGE** **VPV** ## **P.N.RAVINDRAN, J. ----------------------------------------W.P(C).No.31957 of 2011 ----------------------------------------Dated this the 2[nd] day of December, 2011** ## **JUDGMENT** The petitioner is a member of the first respondent cooperative society. The general body of the first respondent society that met on 27.1.2008 resolved to enhance the share value payable by A class members from Rs.25/- to Rs.250/-. Thereafter the Secretary of the first respondent society published a notice dated 7.10.2008 in the Mathrubhoomi daily dated 13.10.2008 calling upon the members of the society to pay the enhanced share value before 15.12.2008. Later, the general body that met on 31.10.2009 extended the time for payment of the enhanced share value till 31.3.2010. The first respondent society is now being administered by an Administrator. He passed a resolution extending the time for payment of the enhanced share value till 31.1.2012. A notice was also published in the Malayala Manorama daily dated 30.1.2011 in that regard. Taking note of these facts, by an interim order passed on 26.9.2011 in W.P.(C) ## **W.P(C).No.31957 of 2011** -:2:- Nos.5065 of 2010 and 11453 of 2011, wherein I held that the mere fact that the Administrator has passed a resolution extending the time for payment of the enhanced share value is not a reason for not holding the elections, I directed the Administrator of the first respondent society to adopt a resolution regarding the conduct of the elections. The operative portion of the said order reads as follows:- “ _6. I accordingly direct the Administrator of the Thrissur District Co-operative Hospital Limited to adopt a resolution within one week from the date of production of a copy of this order resolving to hold elections to the Managing Committee of the society within 60 days from the date of passing of the resolution. He shall thereupon request the Joint Registrar of Co-operative Societies (General), Thrissur to appoint a Returning Officer to hold the elections. In any event the request shall be made to the Joint Registrar within one week from the date of adoption of the resolution. The Joint Registrar shall within one week from the date of receipt of the resolution and the request, appoint a Returning Officer to hold the elections on the date stipulated by the Administrator. It is clarified that the Administrator need not include the names of the 1253 A class members and 50 B class members_ ## **W.P(C).No.31957 of 2011** ## -:3:- _whose enrollment as members is the subject matter of W.P.(C)No.5605 of 2010.”_ 2. Pursuant thereto, the Administrator of the first respondent society passed a resolution to hold the elections to the Managing Committee of the first respondent society on 4.12.2011. He also requested the Joint Registrar of Co-operative Societies (General), Thrissur, to appoint a Returning Officer to conduct the elections. The Joint Registrar of Co-operative Societies (General), Thrissur, accordingly appointed the Assistant Registrar of Cooperative Societies (General), Chavakkad as the Returning Officer. The Returning Officer thereupon issued Ext.P2 notification dated 31.10.2011 proposing to hold the elections on 4.12.2011. A draft voters list was also published on 3.11.2011. After the draft voters list was published, the petitioner herein submitted Ext.P3 objections dated 10.11.2011 to the draft voters list wherein his main objection was that the voters list should also contain the photograph of the voters. After the objections were considered, a final voters list was published on 12.11.2011. The petitioner had in Ext.P3 representation also requested the second respondent Returning Officer to ensure that only those members who hold an ## **W.P(C).No.31957 of 2011** -:4:- identity card bearing an invisible logo should be permitted to vote in the elections. Such a request was made relying on Ext.P1 resolution adopted by the general body of the first respondent society on 31.1.2010. The Returning Officer rejected that request and communicated his decision to the petitioner by Ext.P4 letter wherein he stated that those members whose names find a place in the voters' list and produce an identity card issued in terms of rule 16A will be eligible to vote in the elections. This writ petition was thereupon filed on 30.11.2011 challenging Ext.P4 and seeking a declaration that only those members who have paid the enhanced share value of Rs.250/- on or before 31.12.2009 and who possess new identity cards issued by the society are entitled to vote in the election scheduled to be held on 4.12.2011. The petitioner has also prayed for a declaration that those members who have not paid the enhanced share value before 31.9.2009 are not entitled to vote in the elections scheduled to be held on 4.12.2011. It is contended that unless the enhanced share value is paid, a member cannot exercise the rights of a member, that the rights of a member include the right to vote and therefore only those members who have paid the enhanced share value ## **W.P(C).No.31957 of 2011** ## -:5:- within the time stipulated by the general body are entitled to vote. It is contended that the mere fact that those members who have not paid the enhanced share value hold identity cards is not a reason to permit them to vote as they have ceased to be members in view of the non-payment of the enhanced share value. 3. When this writ petition came up for admission hearing on 30.11.2011 this Court, while ordering notice to the respondents, directed as follows:- _“Admit. Issue urgent notice returnable in ten days to the respondents._ _There will be an interim order directing the respondents to ensure that only those ;members of the first respondent society who have paid enhanced share value on or before 31.3.2010 and possess identity cards issued in terms of Ext.P1 resolution adopted by the general body on 31.1.2010 and are included in the final voters list, vote in the election scheduled to be held on 4.12.2011.”_ Such an order was passed having regard to the decision taken by the general body of the first respondent society on 31.1.2010. A member of the first respondent society has on coming to know of ## **W.P(C).No.31957 of 2011** -:6:- the said interim order, filed I.A.No.19388 of 2011 seeking impleadment as the additional third respondent in the writ petition. I have by order passed today allowed the said application. 4. I heard Sri.George Poonthottam, learned counsel appearing for the petitioner, Sri.P.N.Mohanan, learned counsel appearing for the first respondent, Sri.D.Somasundaram, learned Special Government Pleader appearing for the second respondent and Sri.M.Sasindran, learned counsel appearing for the additional third respondent. Sri.George Poonthottam, learned counsel appearing for the petitioner contended reiterating the case set out in the writ petition that as the right to vote can be acquired only on payment of the enhanced share value and the general body had fixed an outer time limit for payment of the enhanced share value, only those members who have paid the enhanced share value on or before 31.3.2010 are entitled to vote in the elections. The learned counsel also contended that as the general body had on 31.1.2010 approved the new identity card and the share certificates reflecting payment of the enhanced share value, only those members who possess identity cards of the kind approved ## **W.P(C).No.31957 of 2011** -:7:- by the general body should be permitted to vote in the election. The learned counsel for the petitioner also contended relying on rule 35(3)(b) of the Kerala Co-operative Societies Rules that the voters list can contain the names of only those members who have paid the enhanced share value and therefore only those members who paid the enhanced share value and possess the new identity card approved by the general body should be permitted to vote in the election. 5. Per contra, Sri.P.N.Mohanan, learned counsel appearing for the first respondent, Sri.D.Somasundaram, learned Special Government Pleader appearing for the second respondent and Sri.M.Sasindran, learned counsel appearing for the additional third respondent contended relying on rule 28 of the Kerala Cooperative Societies Rules and the decision of a Division Bench of _**-**_ this Court in _**Kadakam Service Co operative Bank Ltd. v. Narayana Bhat,**_ 2004 (2) KLT 179 that it is open to a member who has not paid the enhanced share value within the time stipulated by the general body to pay it at any time before he is removed from membership and if such payment is made 60 days prior to the date on which the poll is scheduled to be held, such a ## **W.P(C).No.31957 of 2011** ## -:8:- member would acquire the right to vote. 6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The pleadings and the materials on record disclose that the petitioner has no complaint whatsoever regarding the final voters list published by the Returning Officer. The case set out by him in the writ petition is that only those members who have paid the enhanced share value before 31.12.2009 and possess identity cards bearing an invisible logo should be permitted to vote. Section 19 of the Kerala Co-operative Societies Act stipulates that no member of a society shall exercise the rights of a member unless he has made such payments to the society in respect of membership or has acquired such interest in the society, as may be prescribed by the rules or the bye-laws. Section 20 stipulates that notwithstanding nything contained in any other provision of the Act or any other law, every member of a society shall have one vote in the affairs of the society. Clause (a) of the proviso to section 20 however stipulates that a member admitted within sixty days immediately prior to the date of election shall not have the right to vote. Rule **W.P(C).No.31957 of 2011** -:9:- 20 of the Kerala Co-operative Societies Rules stipulates that the payments to acquire right of membership shall include admission fee, subscription to share capital and any other payments required _**-**_ to be made under the bye-laws. In **K** _**adakam Service Co operative Bank Ltd.**_ (supra) a Division Bench of this Court considered the question whether a member who has not paid the enhanced share value will cease to be a member of the society. The Division Bench held that on failure to pay enhanced share value a member will not cease to be a member and that the only effect of failure to pay the additional share value is that until he pays the additional share value, he will not be entitled to exercise any of the rights of a member. It was held that if a member who has not paid the enhanced share value, has not been removed from membership either under rule 16(3) or under rule 16(4), of the Kerala Co-operative Societies Rules the society cannot refuse to accept the difference in share value even though it is tendered by him belatedly. The Division Bench also held that even then until he pays the additional share value, the member who is in default, cannot exercise the rights of a member. 7. Rule 26(1) of the Kerala Co-operative Societies Rules ## **W.P(C).No.31957 of 2011** ## -:10:- stipulates that no society shall admit members or approve the transfer of shares within sixty days prior to the date of the election or the date of the general body meeting. Sub-rule (2) of rule 26 stipulates that any person admitted as member and any person in whose favour the transfer of shares has been approved in contravention of rule 26(1) shall not have the right to membership or the right to vote at the said election or at the general body meeting. Rule 28 of the Kerala Co-operative Societies Rules stipulates that no member of a society shall be eligible to vote at the meeting fixed for any election to the committee of that society, unless 60 days prior to the date of such meeting he acquires the number of shares for membership as may be provided in the bye-laws of the society of which he is a member. A Division Bench of this Court has in _**Kadakam**_ _**- Service Co operative Bank Ltd.**_ (supra) held that notwithstanding the stipulation of an outer time limit for payment of the enhanced share value, so long as a member who has not paid the enhanced share value, continues to be a member and is not removed by the society either under rule 16(3) or under rule 16(4), the society of which he is a member, cannot decline to ## **W.P(C).No.31957 of 2011** ## -:11:- receive the enhanced share value if tendered at any point of time before such removal even within the period of 60 days of the date of election. The only consequence of payment within 60 days from the date fixed for the poll is that he will not acquire a right to vote in the election. In other words, a member who is in default in the matter of payment of the enhanced share value can exercise the right to vote as a member if he has paid the enhanced share value 60 days prior to the date fixed for the poll. Such being the situation, I find no merit in the contention raised by the petitioner that only those members who have paid the enhanced share value prior to 31.12.2009 are entitled to vote in the elections. 8. That takes me to the question whether there is any merit in the contention raised by the petitioner that only those members who possess identity cards bearing an invisible logo and security thread should be permitted to vote in the election. Rule 16A of the Kerala Co-operative Societies Rules stipulates that a person admitted as a member of a society shall be issued with an identity card in Form 6A, which shall be conclusive evidence to prove his membership in the society. Rule 16A discloses that the identity ## **W.P(C).No.31957 of 2011** ## -:12:- card will contain a photograph of the member. The member applying for an identity card has to furnish two copies of his recent photograph. Both the photographs have to be attested by the Chief Executive Officer of the society or an officer specially empowered in that behalf by the Committee of the society . One copy of the photograph is affixed on the identity card issued by the society and the other in the Register in Form 6B maintained in the society for the purpose. From a reading of rule 16A it is evident that if a member of a society possesses an identity card issued in Form 6A, such a member will be entitled to vote in the election provided it is a genuine identity card. Such being the situation, the mere fact that the general body has approved an identity card which bears an invisible logo which is not statutorily prescribed cannot be a reason to hold that only those members who hold such identity cards can be permitted to vote in the elections. If the petitioner apprehends that any person who is not a member of the society is likely to vote in the election and if any such a person attempts to vote, he can object to that person voting and in that event the objection will have to be considered in the light of the Form 6B register maintained by the society. Such ## **W.P(C).No.31957 of 2011** -:13:- being the situation, I find no merit in the contention that only those members who hold an identity card bearing an invisible logo and security thread, should be permitted to vote in the election. The general body cannot, in my opinion, alter the statutory stipulations and in the absence of any stipulation in that regard in rule 16A of the Kerala Co-operative Societies Rules, the decision of the general body cannot govern the rights of parties. I accordingly hold that there is no merit in the writ petition. The writ petition fails and it is dismissed. The registry is directed to issue certified copies of this judgment to the learned counsel appearing on both sides, if applied for, today itself. **P.N.RAVINDRAN, Judge.** ## **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P(C).No.31957 of 2011 ----------------------------** ## **JUDGMENT** **2[nd] December, 2011**