IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 WP(C).No. 27279 of 2008(M) -------------------------- PETITIONER: ------------ KAIRADY RUBBER KARSHAKA CO-OP MARKETING SOCIETY LTD.NO.P1082,KAIRADY.O.O,PALAKKAD,REP.BY THE PRESIDENT,M.KABEER,S/O.LATE MUHAMMED RAWTHER, REHMANIA HOUSE, PAYYAMKODE, KAIRADY.P.O, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS: ------------- 1. THE JOINT REGISTRAR, DEPARTMENT OF CO-OPERATIVE SOCIETIES, CIVIL STATION, PALAKKAD. 2. THE ASSISTANT REGISTRAR (GENERAL), DEPARTMENT OF CO-OPERATIVE SOCIETIES, CHITTUR, PALAKKAD DISTRICT. 3. THE SPECIAL SALE OFFICER,(KODUVAYUR SCB GROUP),O/O THE ASST.REGISTRAR(GENERAL),DEPT. OF CO-OPERATIVE SOCIETIES, PALAKKAD DISTRICT, NOW HOLDING THE POST OF RETURNING OFFICER,KAIRADY RUBBER KARSHAKA CO-OP MARKETING SOCIETY LTD.NO. P1082,KAIRADY.P.O, PALAKKAD DISTRICT. ADD.4 C.K.SKARIA, S/O.KURIAKOSE, RESIDING AT CHENGAMANATTIL HOUSE, PAYYAMKODE, KAIRADI P.O., PALAKKAD DISTRICT. ADD.5 K.CHELLAPPAN, KUNNUPARAMBU VEEDU, P.O.KAIRADY, PALAKKAD. 6 K.C.PETER, KALATHOOPADIYIL, P.O.KAIRADY, PALAKKAD (ADDL.R4 IMPLEADED VIDE ORDER DATED 16.9.2008 ON I.A.NO.11850/08) (ADDL.R5 AND R6 IMPLEADED VIDE ORDER DATED 16.9.2008 ON I.A.NO.11860/09) R1 TO R3 BY GOVT. PLEADER SRI.I.V.PRAMOD. ADDL.R4 BY ADV.SRI.P.C.SASIDHARAN ADDL. R5, R6 BY ADV.SRI.P.V.BABY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.27279/08 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE STATEMETN GIVEN BY K.Y.SHAJI. EXT.P2: TRUE COPY OF THE MINUTES OF THE BOARD MEETING HELD ON 25.8.2008. EXT.P3: TRUE COPY OF THE PETITION DATED 27.8.2008 SUBMITTED BEFORE THE RESPONDENT NO.2. EXT.P4: TRUE COPY OF THE PETITION DATED 25.8.2008 SUBMITTED BEFORE THE RESPONDENT NO.3. EXT.P5: TRUE COPY OF THE PETITION DATED 27.8.2008 SUBMITTED BEFORE THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R4(a): A TRUE COPY OF PROCEEDINGS OF THE BOARD OF DIRECTORS IN ITS MEETING HELD ON 12.7.2008. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.27279 OF 2008 ------------------------------------------- Dated this the 16th day of September, 2008 JUDGMENT This writ petition is filed by a co-operative society represented by its President. The issue raised is in relation to the preparation of voters' list in connection with the election scheduled to be held on 15.9.2008. The complaint is that the committee of the society approved a list of voters containing 309 members, who, according to the committee, are the eligible members entitled to vote and that when the final voters' list was published by the Returning Officer, that reflected a further number of 240 persons in the voters' list, thereby enlarging the list of eligible voters by 240. This, according to the petitioner, is the making of one K.Y.Shaji, an employee of the society, hand in glove with one M.K.Sureshkumar, an employee in the Co- operative Department in the Government of Kerala. WPC.27279/08 Page numbers 2. I.A.No.11850/08 has been allowed today, bringing on record certain additional respondents. They are members of the Board of Directors to demit office tomorrow. 3. I.A.No.11860/08 is also allowed vide separate order and certain candidates who support the cause espoused in the writ petition have been brought on record. 4. Ext.P1 is stated to be a complaint made by the aforesaid K.Y.Shaji. Ext.P2 is stated to be a document which contains the signature of one among the persons impleaded as per order on I.A.No.11850/08. 5. The story reflected in Ext.P1 and in the writ petition is that there was certain departmental proceeding and inspection in connection with the allegations against Sureshkumar and Shaji and after that incident, Shaji was called to the residence of Sureshkumar and was made to make entries in the books of the society to show the issuance of additional shares. This itself is a matter which generates dispute. Not only that, neither K.Y.Shaji WPC.27279/08 Page numbers nor M.K.Sureshkumar is party to this writ petition. None among the persons who had contested the election and none among the voters is a party herein. The issue, as noticed above, is not one which rests exclusively as a jurisdictional issue found going to the route of the conduct of the election. This Court has repeatedly held that the Returning Officer has the power to decide as to whether a person is a member of the society or not and also as to whether such a person is entitled to vote. 6. Learned counsel for the petitioner is right in pointing out that when a person, who is not included in the list of eligible voters as prepared by the committee, comes forward with a claim of membership and entitlement to vote, the Returning Officer would be duty bound to look into the books of the society, including the Share Register etc. However, the contention of the petitioner, with the support of Ext.P1, that those documents and registers were not in the custody of the society cannot be taken or rejected merely on the basis of the materials now on record in this writ petition. I also deem it inappropriate to enter on an adjudication of such issues on questions of facts. This is all the WPC.27279/08 Page numbers more so, because, the format of enquiry available in a proceedings under Section 69 of the Kerala Co-operative Societies Act, 1969 for resolution of disputes include the opportunity to agitate an election dispute and for its redressal upon adjudication of disputed questions of facts and law. 7. Having regard to the aforesaid, the plea of the additional respondents impleaded as per order on I.A.11850/08 that the society cannot be the petitioner in such a writ petition and still further, that the President cannot represent the society in this writ petition need not, itself, be the foundation for this judgment. 8. For the aforesaid reasons, leaving open all questions in relation to the election in question, this writ petition is dismissed. The interim order will stand recalled and the officials will be at liberty to forthwith declare the result of the election. However, it is ordered that the first respondent Joint Registrar shall take over the entire records of the society in relation to admission of members and issuance of shares, including the Share Register, if any, available in the petitioner society and WPC.27279/08 Page numbers retain it in safe custody for a period of four months or such shorter period as may be required, for production if called for by the appropriate arbitrator or arbitration court. However, if proceedings are not initiated in the mean while for resolution of any election dispute, the records shall be returned to the Secretary of the society. The results of election declared, on vacating the interim order, shall obviously be subject to the result of any arbitration proceedings. The Joint Registrar will carry out the aforesaid before the new committee assumes office. Learned Government Pleader will issue immediate communication to the Joint Registrar to ensure that the needful is done. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.