W.P.(C) No.30079/2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** ## **MONDAY, THE 10[TH] DAY OF OCTOBER 2022 / 18TH ASWINA, 1944** ## **WP(C) NO. 30079 OF 2022** ## **PETITIONERS:** 1 R.ALAIRAJ, AGED 40 YEARS S/O.RAMASWAMY GOUNDER, KARADIKKUNNU KALAM, ATTAYAMPATHY (MEMBER NO.1467) GOVINDAPURAM P.O., PALAKKAD DISTRICT, PIN - 678507. 2 ANNA POORANI, AGED 51 YEARS, W/O.RADHAKRISHNAN , GOVINDAPURAM P.O., PALAKKAD DISTRICT, PIN- 678 507. 3 SHANMUGAM SUNDARAM, AGED 62 YEARS, S/O.MAYIL SWAMY GOUNDE (MEMBER NO.1810 AND S NO.258 IN DRAFT) CHUNDIPULIKAADU GOVINDAPURAM P.O. PALAKKAD DISTRICT, PIN - 678 507. 4 MAHESHWARI, AGED 45 YEARS, W/O.KANAGARAJ, FARMER (MEMBER NO.1781 AND S NO. 229 IN DRAFT) MEENKARA, MEENKARA P.O., PALAKKAD DISTRICT, PIN - 678 507. 5 MUTHUSWAMY, AGED 50 YEARS, S/O.PAZHAIVSWAMY, FARMER (MEMBER NO.1792 AND S NO.240 IN DRAFT) ALAMPALAYAM, GOVINDAPURAM P.O., PALAKKAD DISTRICT PIN - 678 507. BY ADVS. M.SASINDRAN S.SHYAM KUMAR ## **RESPONDENT/S:** 1 THE STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM - 695 001. 2 THE ELECTORAL OFFICER W.P.(C) No.30079/2022 2 (TECHNICAL ASSISTANT DAIRY DEVELOPMENT DEPARTMENT, PALAKKAD) MUTHALAMADA (EAST) KSHEERA VYAVASAYA CO-OPERATIVE SOCIETY LTD NO.P.4 (D) APCOS, MEENKARA JUNCTION, GOVINDAPURAM.P.O., PALAKKAD DISTRICT - 678 507. 3 THE RETURNING OFFICER (DAIRY DEVELOPMENT OFFICER, NENMARA, PALAKKAD) MUTHALAMADA (EAST) KSHEERA VYAVASAYA COOPERATIVE SOCIETY LTD NO.P.4 (D) APCOS, MEENKARA JUNCTION, GOVINDAPURAM.P.O., PALAKKAD DISTRICT - 678 507. - 4 MUTHALAMADA (EAST) KSHEERA VYAVASAYA COOPERATIVE SOCIETY LTD NO.P.4 (D) APCOS, MEENKARA JUNCTION, GOVINDAPURAM.P.O., PALAKKAD DISTRICT - 678 507, REPRESENTED BY ITS SECRETARY. 5 THE PART TIME ADMINISTRATOR MUTHALAMADA (EAST) KSHEERA VYAVASAYA COOPERATIVE SOCIETY LTD NO.P.4 (D) APCOS, MEENKARA JUNCTION, GOVINDAPURAM.P.O., PALAKKAD DISTRICT - 678 507. - 6 THE DAIRY DEVELOPMENT DEPUTY DIRECTOR, PALAKKAD DISTRICT, PIN - 678 001. 7 ADDL.R7. R.SASEENDRAN S/O RAMAKRISHNAN, AGED 60 YEAS, RESIDING AT CHEMMANNAMTHODE,HOUSE, MEENKARA P.O., MUTHALAMADA, PALAKKAD DISTRICT- 678507 8 ADDL.R8. M.SELVARAJ S/O MAYILSWAMY, AGED 51 YEARS, MUCHKUNDU, PARUPARAKKAD, GOVINDAPURAM P.O., MUTHALAMADA, PALAKKAD DISTRICT- 678507 (ADDL.R7 AND ADDL.R8 ARE IMPLEADED AS PER ORDER DATED 28.09.2022 IN IA NO.1/2022). 9 ADDL.G.RAMESH S/O GOVINDASWAMY KOUNDER, ANAKETTIMEDU, GOVINDAPURAM P.O., PIN- 612101 (ADDL.R9 IS IMPLEADED AS PER ORDER DATED 28.09.2022 IN IA NO.3/2022). BY ADVS. W.P.(C) No.30079/2022 3 K.S.MOHAMED HASHIM GEORGE POONTHOTTAM (SR.) P.RAMAKRISHNAN PREETHI RAMAKRISHNAN (P-212) T.C.KRISHNA C.ANIL KUMAR ASHA K.SHENOY PRATAP ABRAHAM VARGHESE NISHA GEORGE C.M.NAZAR SC FOR SCEC G.P.ADV.AMMINIKUTTY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 6.10.2022, THE COURT ON 10/10/2022 DELIVERED THE FOLLOWING: W.P.(C) No.30079/2022 4 ## **V.G.ARUN J.** ------------------------------------- ## **W.P.(C) No.30079 of 2022** **---------------------------------** Dated this the 10th day of October 2022 ## **JUDGMENT** The first petitioner is a member of the fourth respondent society. Petitioners 2 to 5 are residing within its area of operation and have been supplying milk to the society for the past many years. Being desirous of getting enrolled as members of the Society, the petitioners had submitted applications before the managing committee of the Society. The Committee did not consider their application or grant membership. While so, the Committee was superseded and Part Time Administrator appointed on 11/6/2017. Thereupon, the petitioners submitted application seeking membership before the Part Time Administrator. As the Part Time Administrator refused to grant membership, the petitioners along with similarly placed persons, approached this Court and obtained Ext.P3 interim order, directing the Deputy Director, Dairy Development/Joint Registrar to consider the applications for membership after hearing the petitioners and the Society W.P.(C) No.30079/2022 5 and to take action as required by law within one month. In purported compliance of the direction, the sixth respondent issued Exts.P4 and P5 orders, finding the applicants to be eligible for membership and requiring the Part Time administrator to accept share value and grant membership to the petitioners and others, in accordance with the bye-laws of the Society. Accordingly, the Part Time Administrator granted membership to the petitioners. 2. While so, the election to the Managing Committee of the Society was notified on 5/9/2022. Although the petitioners names were included in the preliminary voters list, their names did not figure in the final voters list. On coming to know about this, the first petitioner, who is a member and candidate in the ensuing election, sought the reason for excluding the petitioners names from the final voters' list. Thereupon, he was issued with a copy of Ext.P10 proceedings dated 16/9/2022 of the Electoral Officer. From the proceedings it came to light that the sole reason for not including petitioners 2 to 5 in the final voters list was grant of membership by the part time administrator. Aggrieved by non inclusion of the names,petitioners 2 to 5 and other persons granted membership by the Part Time Administrator, this writ petition is W.P.(C) No.30079/2022 6 filed seeking the following reliefs; i). issue a writ of certiorari or any other writ or order to quash Ext.P10. ii). set aside Ext.P9, to the extent it excludes the members included from SL.No.200 onwards in Ext.P8 draft list. iii). declare that a member included in the draft list cannot be excluded from the final list without notice to them. iv). issue a writ of mandamus or any other writ, order or direction to the 2nd respondent to include persons arrayed from Sl.No.200 onwards in the Ext.P8 draft voters list and who are granted membership pursuant to Ext.P4, P5 and P6 orders in the final voters list. ; v). declare that the members enrolled as per the decision of the Registrar under Section 16(2A) are full fledged members without any restrictions on their right as members. vi). command the respondents 1 to 3 to keep in abeyance all further proceedings pursuant to Ext.P7, until inclusion of the members included as Sl.No.200 onwards in Ext.P8 in the final voters list. vii). exempt the petitioner from producing the English Translation of Malayalam Exhibits produced along with this writ petition and the petitioner further undertakes that he is ready and willing to produce English Translation of Malayalam documents as and when required. 3. Adv.M.Sasindran, learned counsel for the petitioners, submitted that the non - inclusion of the names of petitioners 2 to 5 and other members enrolled by the Part Time Administrator in the final voters list is e _x facie_ illegal, as those members were granted membership based on Exts.P4 to P6 W.P.(C) No.30079/2022 7 orders of the Deputy Director/6th respondent. Referring to section 16(2A) of the Co-operative Societies Act, it is contended that, if an application for membership to the Society is not disposed of within the time specified in Sub section (2) of Section 16, the Registrar is bound to determine whether such membership shall be given or not, when a written request in that regard is made by the applicant The orders at Exts.P4 to P6 having been passed in exercise of the power under section 16(2A) and the Part Time Administrator having enrolled petitioners 2 to 5 and others based on that order. The grant of membership cannot be termed as enrollment by the Part Time Administrator. As petitioners 2 to 5 and others have been enrolled and are continuing as members, the Electoral Officer cannot exclude names from the final voters list. The removal of their names is illegal also for the reason that it was done without hearing the members . In this regard, reference is made to Rule 35A(4) of the Co-operative Societies Rules, which casts a duty on the Electoral Officer to publish the preliminary voters' list and call for objections, if any, on the voters list. It is contended that, the power to call for objections also casts a duty on the Electoral Officer to hear the members against whom the objection is raised. 8 W.P.(C) No.30079/2022 4. Adv.George Poonthottam, learned Senior Counsel appearing for the additional respondents, submitted that the right to enroll members is vested with the elected managing committee, and the Part Time Administrator cannot exercise that power. The position of law is no longer _res integra_ in the light of the decisions rendered by the Apex Court and this Court in a series of decisions, including the decision in _**the**_ ## _**Joint Registrar of Co-operative Societies v. T.A.Kutappan**_ [ **2000 (2) KLT 480].** Attention is also drawn to the Division Bench decision of this Court in **Karunakaran Pillai K v. Venugopala Pillai and Others [2005 (3) KLT 348]** . The bar against enrollment of members by the part time administrator cannot be circumvented by the the applicants approaching the Registrar under Section 16(2A) and obtaining of a favourable order. Even otherwise, under Section 16(2A), the Registrar is empowered only to determine the right to membership of the applicant and cannot go further and direct the part time administrator to grant membership. Referring to Exts.P4 to P6 it is pointed out that this legal position is admitted by the Deputy Director also. 5. I heard Adv. C.M.Nazar appearing for the State Cooperative Election Commission and Adv.Rajeev Jothish Raj the W.P.(C) No.30079/2022 9 learned Government Pleader appearing for respondents 5 and 6. 6. As rightly contended by the learned Senior Counsel, the legal position that a Part Time Administrator is not empowered to enroll new members is clearly laid down by Full Bench in **Hasan v. Joint Registrar (1998 (2) KLT 746)** and the Apex Court in **the Joint Registrar of Co-operative Societies v T.A.Kuttappan's case** (supra). I also find merit in the contention that the power under Section 16(2A) is only to determine whether the applicant is entitled for membership or not. That power will not enable the Registrar or the Part Time Administrator to circumvent the embargo against grant of membership by the Part Time Administrator. 7. Yet another vital aspect revealed from a reading of Ext.P10 proceedings is that the petitioners and others were granted membership by the Part Time Administrator vide his proceedings dated 21/7/2022 and 10/8/2022. Being so, their enrollment is within the period of sixty days from 5/9/2022, the date on which the election notification was published. As such, the embargo under Section 20A disentitling a member admitted within sixty days immediately prior to the date to vote, will apply. In such circumstances,there is no merit in the 10 W.P.(C) No.30079/2022 challenge against non inclusion of the names of petitioners 2 to 5 and other members enrolled by the part time administrator in the final voters list. For the aforementioned reasons, the writ petition is dismissed. Sd/- **V.G.ARUN Judge** dpk W.P.(C) No.30079/2022 11 ## **APPENDIX OF WP(C) 30079/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE RELEVANT EXTRACTS FROM THE BYE LAWS OF THE SOCIETY. Exhibit P2 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER UNDER SECTION 16 (2A) OF THE KERALA COOPERATIVE SOCIETIES ACT. - Exhibit P2A A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER UNDER SECTION 16 (2A) OF THE KERALA COOPERATIVE SOCIETIES ACT. - Exhibit P2B A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 4TH PETITIONER UNDER SECTION 16 (2A) OF THE KERALA COOPERATIVE SOCIETIES ACT. - Exhibit P2C A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 5TH PETITIONER UNDER SECTION 16 (2A) OF THE KERALA COOPERATIVE SOCIETIES ACT. - Exhibit P3 A TRUE COPY OF THE INTERIM ORDER DATED 14-07-2022 IN W.P.(C) NO.22905 OF 2022. - Exhibit P4 A TRUE COPY OF THE ORDER NO.E.8370 / 2022 DATED 08-08-2022. - Exhibit P5 A TRUE COPY OF THE ORDER NO.E.8374/2022 DATED 08- 08-2022. - Exhibit P6 A TRUE COPY OF THE ORDER NO.E.8294 DATED 01-07-2022. - Exhibit P7 A TRUE COPY OF THE NOTIFICATION DATED 05-09-2022 FIRST RESPONDENT STATE COOPERATIVE ELECTION ISSUED BY THE COMMISSION. - Exhibit P8 A TRUE COPY OF THE RELEVANT EXTRACTS FROM THE DRAFT VOTERS LIST PUBLISHED FROM THE 2ND RESPONDENT. - Exhibit P9 A TRUE COPY OF THE FINAL VOTERS LIST W.P.(C) No.30079/2022 12 PUBLISHED BY THE 2ND RESPONDENT ON 1609-2022. Exhibit P10 A TRUE COPY OF THE COMMUNICATION DATED 16-09-6 2022 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER RESPONDENT EXHIBITS Exhibit R7(A) TRUE COPY OF THE JUDGMENT DATED 19.05.2022 IN W.P.(C) NO.16302/2022 PASSED BY THIS HON'BLE COURT. Exhibit R7(B) TRUE COPY OF THE REPRESENTATION FILED BY THE 1ST APPLICANT DATED 24.09.2022, WITHOUT ITS ENCLOSURES. Exhibit R7(C) TRUE COPY OF THE ORDER DATED 24.09.2022 PASSED BY THE 3RD RESPONDENT RETURNING OFFICER.