W.P.(C) No.30540 of 2017 (N)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939** **WP(C).No. 30540 of 2017 (N)** ## **----------------------------** - **PETITIONER(S): -------------** **1. K.K. MOHANAN, KANNAMTHARAYIL HOUSE, KARIPADAM,P.O, THALAYOLAPARAMBU, KOTTAYAM.** **2. P.T JOSEPH,** - **PINAMKUZHIYIL HOUSE, CHAMAMPATHAL, CHANGANASSERY, KOTTAYAM.** **BY ADV. SRI.P.N.MOHANAN** **RESPONDENT(S):** - **--------------** **1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM - 686 001.** **2. THE STATE CO-OPERATIVE ELECTION COMMISSION, REPRESENTED BY ELECTION COMMISSIONER, THIRUVANANTHAPURAM,** - **3RD FLOOR, CO-BANK TOWERS, PALAYAM, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM - 695 033.** **3. THE ELECTORAL OFFICER TO THE CO-OPERATIVE DEPARTMENTAL EMPLOYEES' CO-OPERATIVE SOCIETY LTD NO.K.294, RAILWAY STATION ROAD, KOTTAYAM, THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM - 686 001.** **4. THE RETURNING OFFICER TO THE CO-OPERATIVE DEPARTMENTAL EMPLOYEES' CO-OPERATIVE SOCIETY LTD NO.K. 294, RAILWAY STATION ROAD, KOTTAYAM, UNIT INSPECTOR, KUMARANELLUR, OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES, KOTTAYAM - 686 001.** **5. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),KOTTAYAM - 686 001.** **6. CO-OPERATIVE DEPARTMENTAL EMPLOYEES' CO-OPERATIVE SOCIETY LTD NO.K. 294, REPRESENTED BY SECRETARY, RAILWAY STATION ROAD, KOTTAYAM - 686 001.** ## **7. MANMADAN NAIR,** **OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOTTAYAM - 686 001.** **R1-R5 BY GOVERNMENT PLEADER SRI MUHAMMED HASHIM.K.O R7 BY ADV. SRI.P.C.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 30540 of 2017 (N)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXHIBIT P1 A TRUE COPY OF THE LIST OF THE MEMBERS OF THE SIXTH RESPONDENT SOCIETY. EXHIBIT P2 A TRUE COPY OF THE RELEVANT PORTION OF THE BYE LAW APPROVED BY THE JOINT REGISTRAR BY AN ORDER DATED 23.11.2013. EXHIBIT P3 A TRUE COPY OF THE ELECTION NOTIFICATION DATED 11.08.2017 PUBLISHED BY THE ELECTION COMMISSION. EXHIBIT P4 A TRUE COPY OF THE ELECTION NOTIFICATION DATED 07.09.2017 PUBLISHED BY THE ELECTION COMMISSION. EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 14.08.2017 OF THE JOINT REGISTRAR. EXHIBIT P6 A TRUE COPY OF THE CIRCULAR NO.27/2013 DATED 20.04.2013 OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES. EXHIBIT P7 A TRUE COPY OF THE PRELIMINARY VOTERS LIST OF THE SIXTH RESPONDENT SOCIETY. EXHIBIT P8 A TRUE COPY OF THE FINAL VOTERS LIST OF THE SIXTH RESPONDENT SOCIETY. RESPONDENT(S)' EXHIBITS ----------------------R7(A) TRUE THE REGISTRAR OF CO-OPERATIVE SOCIETIES HAS ISSUED CIRCULAR NO.27/2013 DATED 20/4/2013. R7(B) TRUE COPY OF THE HEARING NOTICE DATED 29/7/2017. R7(C) TRUE COPY OF THE PROCEEDINGS OF THE ELECTORAL OFFICER DATED 16.9.2017. /TRUE COPY/ K.V. P.S.TO JUDGE** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.30540 of 2017 ----------------------------------------------Dated this the 4[th] day of October, 2017** ## **JUDGMENT** Petitioners are allegedly members of the 6th respondent society. The 6th respondent is a society consisting of Cooperative Departmental Employees of Kottayam District. While in service, petitioners and 12 others were enrolled as members. According to the petitioners, they made a request to the managing committee to continue them as members, by virtue of clause 5(d) contained in the bye-law. The total membership of the society is 224, and the petitioners and 12 others are continuing as members of the 6th respondent society since retirement, by virtue of clause 5(d) of the bye-law, evident from Ext.P1 list of members. According to the petitioners, these 14 members are the major depositors of the society who have deposited their retiral benefits. A true copy of the relevant portion of clause 5(d) of the bye-law is produced as Ext.P2. 2. The term of the present managing committee expired on 21.09.2017. So, the managing committee in office, **W.P.(C) No.30540 of 2017** 2 well in advance, took a decision to conduct election on 19.09.2017 to elect the new managing committee members, and to assume office before 21.09.2017, and for that, the 1st respondent issued Ext.P3 election notification dated 11.08.2017, scheduling to conduct the election on 19.09.2017. However, the same did not take place. The issue was under challenge before this Court in W.P.(C) No.26975 of 2017. But, in the meanwhile, the managing committee took another resolution dated 20.08.2017 to conduct the election on 07.10.2017, and sought direction in W.P.(C) No.27631 of 2017 to conduct the election on 07.10.2017 itself, and to appoint an administrative committee from the existing managing committee. The said writ petition was allowed as per the judgment dated 23.08.2017. Accordingly, the Election Commission issued Ext.P4 notification dated 07.09.2017 and the Joint Registrar issued an order dated 18.09.2017, appointing three members of the managing committee as administrators. 3. While so, one Manmadan Nair and 21 others filed a complaint dated 01.08.2016 before the Joint Registrar alleging that the admission of the 14 retired members is not proper, **W.P.(C) No.30540 of 2017** 3 even though permissible as per clause 5(d) of the bye-law. On the basis of the said complaint, the 1st respondent heard the President of the society. The society filed an objection to the complaint, stating that the authority who approved the byelaw amendment cannot annul the same. However, no opportunity was given to the petitioners or other 12 members for hearing, and therefore, the same is violative of the principles of natural justice. 4. On the basis of the said hearing, the Joint Registrar passed an order dated 14.08.2017, cancelling the amendment made in clause 5(d) of the bye-law, in the light of Circular No.27/2013 issued by the Registrar of Co-operative Societies, produced as Ext.P5. According to the petitioners, even though the said order is dated 14.08.2017, it was served to the officers of the bank on 15.09.2017, through a special messenger. It is also stated by the petitioners that there is no inhibition in the Kerala Co-operative Societies Act or Rules for continuance of the earlier membership already obtained while in service, in the light of clause 5(d) of the bye-law. Other contentions are also raised in respect of the illegality in the matter of removal of the petitioners from the membership. 4 **W.P.(C) No.30540 of 2017** 5. Anyhow, a preliminary voters list was published on 14.09.2017, evident from Ext.P7. In the meanwhile, the Joint Registrar issued Ext.P5 order dated 14.08.2017, according to the petitioners, a day before the final voters list was to be published. Thereupon, the Electoral Officer published the final voters list scoring the name of the petitioners and 12 others from the voters list, evident from Ext.P8. These are the background facts projected by the petitioners in the writ petition to secure the following reliefs: _“(i) To call for the records leading to issue of Exts.P5 and P6 and quash the same by issuing a writ of certiorari or any appropriate writ, order or direction;_ _(ii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the Electoral Officer to include petitioners and 12 others mentioned in the Ext.P1 list in the final voters list;_ _(iii) To declare that the third respondent has no enabling power to change the preliminary voters list excluding petitioners and 12 others; and_ _(iv) Grant such other relief as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ 6. Third respondent has filed a detailed statement refuting the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that, based on the objection filed by respondent No.7 and certain others, **W.P.(C) No.30540 of 2017** 5 hearing was conducted and the order dated 16.09.2017 was issued, evident from Annexure-R3(a). As per clause 5(A) of the society bye-law, any employee of the Co-operative Department working in Kottayam District can be admitted as member of the society. However, the bye-law was amended incorporating clause 5(d), by stipulating that any member can continue to be a member of the society even after retirement, if a decision is taken on an application submitted by the member, by the managing committee. 7. A member of the society has submitted a complaint against the approval of the bye-law amendment, whereby clause 5(d) was incorporated, and an enquiry was conducted and found that the amendment was not lawful, and it was decided to cancel the amendment. Before disposing of the complaint against the bye-law amendment, hearing was conducted by the 1st respondent on 09.08.2017 and 15.08.2017, and the complainants, and the President and Secretary of the society were heard. 8. In the enquiry and hearing so held, it was revealed that, the society is registered under Sec.15A(3)(b) as employees Credit Society. As per clause 5(A), only serving 6 **W.P.(C) No.30540 of 2017** employees can be admitted as members of the society. Clause 9(A) provides that a member will cease to be a member when he ceases to be a Government employee. Moreover, in Circular No.27/2013 dated 20.04.2013 issued by the Registrar of Co-operative Societies, it is specifically provided that membership of employees society is limited to serving Government servants. It was also stated that a member will cease to be a member when he is removed from service, or on superannuation or otherwise, and if there is any provision contrary to the same in the bye-laws, such provisions shall be amended. Therefore, according to the 3rd respondent, the provisions as per clause 5(d) contained under the bye-law was illegal. It is also stated that the cancellation of amendment was issued on 14.08.2017. The election process is put in motion and the challenge was raised against the order dated 14.08.2017 after the election process has commenced, and therefore, unsustainable and liable to be rejected. Other allegations and contentions raised by the petitioners in the writ petition based on various provisions of the Kerala Co-operative Societies Act and Rules are denied. **W.P.(C) No.30540 of 2017** 7 9. The 7th respondent has also filed a detailed counter affidavit wherein same line of contentions are raised as that of the 3rd respondent. 10. Heard learned counsel for the petitioner, learned Special Government Pleader, and the learned counsel appearing for the 7th respondent. Perused the documents on record and the pleadings put forth by the respective parties. 11. Petitioners have produced Ext.P2, by which the clauses existing and the amendment made in the bye-law are incorporated. It is clear from Ext.P2 that the membership ceases when a member retires from service, or removed from service or resigns. Petitioners have not stated anywhere in the writ petition the dates on which they have retired. However, during the course of arguments, the same was provided by the learned counsel appearing for the 7th respondent. According to the 7th respondent, petitioners retired from service on 31.05.2016 and 31.05.2017 respectively. 12. Even going by clause 5(d) of the bye-law, on retirement, a member will have to provide an application seeking continuance of the membership in the society, which will have to be approved by the managing committee. First of 8 **W.P.(C) No.30540 of 2017** all, there is no pleading in the writ petition that after the retirement, petitioners have submitted applications and the same was approved by the managing committee. Therefore, the petitioners, as of right, cannot claim that they are members of the society entitled to be continued and also entitled to vote in the ensuing election notified. Moreover, when a complaint was raised, the same was enquired into after issuing notice to the President and Secretary of the society concerned. I am informed that petitioners are also members of the managing committee. Therefore, it cannot be heard to say that the petitioners did not have notice of complaint and its consequent proceedings. 13. Clause 5(d) of the bye-law was removed based on Circular No.27/2013 dated 20.04.2013. As per the provisions of the said circular, any clause contained in a bye-law providing membership to retired employees in an Employees' Credit Society is prohibited. It was thereupon that notice was issued to the respective parties on the basis of a complaint submitted by a member to rectify the anomaly. The order passed on the basis of the hearing is dated 14.08.2017. Though the petitioners have a case that it is served on the 9 **W.P.(C) No.30540 of 2017** previous date of the publication of the final voters list, the same is not established by any evidence. The society has not come before this Court being aggrieved by any such order passed. On the other hand, the draft voters list was published incorporating the name of the petitioners and the others and on the basis of the objection raised by the members, the name of the petitioners and 12 others were removed, being retired employees. 14. Now the election process is going on, which is to take place on 07.10.2017 i.e. the coming Saturday. In my considered opinion, if the petitioners have any grievance in view of the issuance of election notification, it has to be raised in a properly constituted election petition after the election is over. This issue was considered by the apex court in _**'Shri**_ _**Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others'**_ [AIR 2001 SC 3982], which was followed in _**'Shaji K. Joseph v. V. Viswanath and others'**_ [2016 (2) KHC 33 (SC)]. Moreover, explanation to Sec.69(2) (c) of the Kerala Co-operative Societies Act, 1969 makes it clear that a dispute arising at any stage of an election 10 ## **W.P.(C) No.30540 of 2017** commencing from the convening of the general body meeting shall be deemed to be a dispute arising in connection with the election. 15. Taking into account all the facts and circumstances of the case, I am of the considered opinion that petitioners are not entitled to secure any reliefs as is sought for in the writ petition. Therefore, the writ petition is dismissed, leaving open the liberty of the petitioners to approach the statutory authority in accordance with law, after the election process is over. Sd/- **SHAJI P. CHALY JUDGE** St/04.10.2017