Writ Appeal Nos. 496, 502 & 503 of 2014

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 26TH DAY OF MARCH 2014/5TH CHAITHRA, 1936** **WA.No. 496 of 2014 () IN WP(C).4680/2014 ------------------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN WP(C) 4680/2014 of HIGH COURT OF KERALA DATED 21-03-2014** ## **APPELLANT(S)/PETITIONERS:** **-----------------------------------------** ## **1. K.A.SUKUMARAN** - **MEMBER NO.13720 ADAT FARMERS' SERVICE CO-OPERATIVE BANK LIMITED NO.R 689 P.O.PURANATTUKARA THRISSUR.(RESIDING AT KARUMANPARAMBIL HOUSE PUZHAKKAL.P.O., THRISSUR)** ## **2. SANTHOSH** **MEMBERSHIP NO.15090** **ADAT FARMERS' SERVICE CO-OPERATIVE BANK LIMITED NO.R 689 P.O.PURANATTUKARA, THRISSUR.(RESIDING AT CHANAYIL CHITTILAPALLY.P.O., THRISSUR).** ## **3. C.L.SIMON MASTER** **MEMBERSHIP NO.1662 ADAT FARMERS' SERVICE CO-OPERATIVE BANK LIMITED NO.R 689 P.O.PURANATTUKARA THRISSUR.(RESIDING AT CHITTILAPILLY HOUSE PUZHAKKAL.P.O., THRISSUR).** ## **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENT(S):** **----------------------------** ## **1. THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM.** ## **2. THE ELECTORAL OFFICER** **APPOINTED FOR THE CONDUCT OF ELECTION TO ELECT NEW MANAGING COMMITTEE TO THE ADAT FARMERS' SERVICE CO-OPERATIVE BANK LIMITED NO.R 689 P.O.PURANATTUKARA THRISSUR.(DEPUTY REGISTRAR (ADMINISTRATION) OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL) THRISSUR.** **WA NO.496/14** **-2-** ## **3. THE RETURNING OFFICER** - **APPOINTED FOR THE CONDUCT OF ELECTION TO ELECT NEW MANAGING COMMITTEE TO THE ADAT FARMERS' SERVICE CO-OPERATIVE BANK LIMITED NO.R 689 P.O.PURANATTUKARA** **THRISSUR.(ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THRISSUR.** ## **4. THE PART TIME ADMINISTRATOR** - **ADAT FARMERS' SERVICE CO-OPERATIVE BANK LIMITED NO.R 689 P.O.PURANATTUKARA, THRISSUR.** ## **5. THE ADAT FARMERS' SERVICE CO-OPERATIVE BANK** - **LIMITED NO.R 689 P.O. PURANATTUKARA THRISSUR. REPRESENTED BY ITS MANAGING DIRECTOR.** **6. LEELA K.P D/O.SAROJINI AMMA, KOLADI HOUSE, PURANATTUKARA.P.O. THRISSUR.** ## **R4 & R5 BY SRI.GEORGE POONTHOTTAM BY SPL.GOVERNMENT PLEADER SRI.D.SOMASUNDARAM** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26-03-2014, ALONG WITH WA NOS.502 AND 503/14, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. ============================== Writ Appeal Nos. 496, 502 & 503 of 2014 ============================** ## **Dated this the 26[th] day of March, 2014** ## **J U D G M E N T** ## Antony Dominic, J. These appeals are filed against the common judgment of the learned single Judge in WP(C) Nos.4680, 4663 and 4714/14. 2. In WP(C) No.4680/14, against which WA No.496/14 has been filed, Ex-President and members of the Board of Directors of Adat Farmers' Service Co-operative Bank Limited were the petitioners. Their grievance was mainly against the rejection of their objections to the draft voters list and the election process that was continued on that basis. 3. In so far as WP(C) No.4663/14, from the judgment of which WA No.502/14 arises, members of the aforesaid Cooperative Bank are the petitioners and what they prayed for was mainly that those who were having existing ID cards be allowed to vote in the election that was scheduled on 02/03/14. In so far as WP(C) No.4714/14, against the judgment of which WA No.503/14 has been filed, is concerned, petitioners therein are also members of the aforesaid Bank and they challenged the preliminary voters **W.A. Nos.496, 502 & 503 of 2014** **: 2 :** list where 629 members alleged to have been enrolled during March to May, 2013 were excluded. They also sought quashing of Ext.P6, the order by which their objections to the preliminary voters list, was rejected. 4. The writ petitions were heard together by a learned single Judge of this Court and by the common judgment rendered on 21[st] of March, 2014, the learned Judge declined the prayers sought for and relegated the petitioners to institute an election petition, as contemplated under Section 69 of the Kerala Cooperative Societies Act. It was also ordered that the Registrar of Co-operative Societies shall declare on 28[th] of March, 2014, the results of the elections that was held on 2/3/14. 5. We heard Sri.P.C.Sasidharan and Smt.Anu Sivaraman, learned counsel for the appellants and have considered the submissions made before us. 6. The learned counsel for the appellant in WA No.496/14 contended that about 5000 members were illegally enrolled by the Administrator and that in terms of the scheme of the Cooperative Societies Act and the Rules, election could not have been proceeded with in the absence of Form 6B Register, which according to him is the basic document regarding membership **W.A. Nos.496, 502 & 503 of 2014** **: 3 :** and eligibility to vote in the election. He also stated that, even if Form 6B Register is not available, as found by the learned single Judge, several other statutory documents are required to be maintained by the society in terms of Rule 29 of the Kerala Cooperative Societies Rules. He also pointed out that as per Rule 47, custodian of these documents is the Secretary/Manager. According to him, therefore, in the absence of Form 6B Register, voters list could not have been prepared by retrieving the list of members from the computer and that election could not have been proceeded with on that basis. He also relied on the judgments of this Court in _**Devassy v. Assistant Registrar of Co-operative Societies**_ (1976 KLT 40), _**Gopalan v. Joint Registrar of Co-operative Societies**_ (1985 KLT 446), _**Krishnan Ezhuthachan v. Assistant Registrar**_ (1990(1) KLT 695), _**Mathai v. State Co-operative Election Commission**_ (2007(2) KLT 789) and _**Praskashkumar v. State Co-operative Election Commission**_ (2014(1) KLT 68) and contended that the administrator could not have admitted the members in the society and that in the light of such illegalities, this Court was duty bound to exercise its powers under Article 226 of the Constitution of India to interfere with the election process. ## **W.A. Nos.496, 502 & 503 of 2014** **: 4 :** 7. On behalf of the appellants in WA No.502/14, the grievance was against the steps taken to issue fresh ID cards and the appellants wanted the election to be proceeded with allowing all members with ID cards issued by the Society to vote. Learned counsel contended that there is no provision in the Act and the Rules enabling the issuance of ID cards as now attempted to be done. In so far as WA No.503/14 is concerned also, the contention raised was that the exclusion of the 629 members from the voters list, who were admitted by the society, was illegal. 8. We have considered the submissions made. 9. A reading of the impugned orders, Ext.P8 in WP(C) No.4680/14 which is Ext.P6 in WP(C) No.4714/14, show that while it was contended that members were enrolled by the Administrator illegally and that more than 600 were excluded in the voters list, the Administrator has found that no documents are available in the society to cross verify the said assertion made by the appellants herein. This has been referred by the learned single Judge, who, in para 21 and 22 of the judgment, has entered into the following findings; “21. _Though the learned counsel for the petitioners strenuously urged that the inclusion of members who were enrolled by the_ ## **W.A. Nos.496, 502 & 503 of 2014** ## **: 5 :** _Administrator vitiates the very election initiated by the Administrator, reducing it to a farce; no material is at present discernible as to who are such members. Admittedly it is the contention of the erstwhile Managing Committee members that when they were resumed to office, they had passed resolutions to remove the members admitted by the Administrator at the first instance. That resolution is also produced as Exhibit P3 in WP(C). No.4680/2014. However, no names are seen in the said resolution and it only indicates that all the memberships granted by the Administrator, as “A” Class members, are revoked and such individuals were granted “E” Class membership; obviously the latter class of membership not entitling participation in the elections. It is also quite evident that there are no registers or applications for membership existing in the first respondent as of now, to cross-verify the draft voters list or the final voters list. 22. The Department or the Administrator also does not have a case that the voters list has been prepared on the basis of the admission register or a regularly maintained Form No.6B Register or even the application form of members. Faced with a situation of there being, no such registers available, the Administrator had taken the permission of the Joint Registrar and had proceeded to retrieve the details of the members from the computers and issue publication calling for the members to obtain fresh Identity Cards. More than 75% of the members are said to have collected their new Identity Cards also. It is very pertinent that neither the erstwhile Managing Committee members nor the petitioners, who claim to have been issued with Identity Cards by the erstwhile Managing Committee members, have a contention that any who approached the_ ## **W.A. Nos.496, 502 & 503 of 2014** ## **: 6 :** _Administrator for a new Identity Card has been declined issue of the same. Necessarily when new Identity Cards were issued, a Form No.6B Register also would have been reconstructed. In the context of the Registers and the allied documents having been removed from the premises of the Society, it cannot be gainsaid that the actions of the Administrator, as approved by the Joint Registrar, was in any manner irregular or improper._ 10. As noticed by the learned single Judge in the aforesaid paragraphs of the judgment, when the situation prevailing in the society was as above, _prima facie_ , we are also inclined to think that the only option that was available to the Administrator was to reconstruct the preliminary list of voters, based on the membership details, which were available in the computer. In the given circumstances, the Electoral Officer could not have either rejected or accepted the objections raised against the preliminary voters list, due to his inability to cross verify the correctness of the assertions made against the alleged inclusion of ineligible members or exclusion of eligible members. In such circumstances, we feel that the Electoral Officer, cannot, _prima facie, be_ faulted for the view taken in Exts.P8 and P6 mentioned above. In such circumstances, it was also not possible for this Court to interfere in the matter in a proceedings under Article 226 **W.A. Nos.496, 502 & 503 of 2014** **: 7 :** of the Constitution of India and the only proper course open was to leave the appellants to pursue their remedies under Section 69 of the Kerala Co-operative Societies Act. 11. In so far as the judgments that are relied on by the learned counsel are concerned, it is true and it cannot be disputed that under Article 226 of the Constitution of India, when patent illegalities which go to the root of the election process are established, it is always open to this Court to interfere with the election. However, when serious disputed questions of fact are raised and in cases of this nature, where statutory registers are not available and allegations are made by the parties against each other, it is not possible for this Court to proceed with an enquiry and come to its own conclusions. The judgments that are relied on by the learned counsel for the appellants are cases where on admitted facts, illegality of fundamental nature was established and in such circumstances, this Court had interfered with the election process. We are not satisfied that these cases are factually comparable to apply the principles laid down in those cases. 12. Similar is the objection raised about the issue of identity cards. Though, ordinarily, issue of ID card, be it the **W.A. Nos.496, 502 & 503 of 2014** ## **: 8 :** original or duplicate, is governed by the provisions of Chapter III of the Rules, the situation prevailing in the society as noticed by the learned single Judge was an extra ordinary one. In such a situation, according to us, the Administrator could have only initiated action for issuing fresh ID cards in order to ensure that in the ensuing elections only members exercised their franchise. 13. Therefore, we cannot find fault with the view taken by the learned single Judge in relegating the appellants to pursue their remedies before the appropriate forum available under Section 69 of the Kerala Co-operative Societies Act. We, therefore, do not find any merit in the appeals. 14. Appeals are, therefore, dismissed. Needless to say that this Court has not pronounced on the merits of the cases and the entire issues raised by the appellants are left open to be decided in appropriate proceedings. ## Sd/- **ANTONY DOMINIC JUDGE** ## Sd/- **ANIL K. NARENDRAN JUDGE** **//True Copy//** Rp **PA TO JUDGE**