IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 946 of 2010(P) ------------------------ PETITIONER(S): --------------- 1. PUNNAVOOR HANDLOOM WEAVERS (PRODUCTIION- CUM-SALE) CO-OPERATIVE SOCIETY LTD.NO.H9, KOOVALASSERI.P.O, REPRESENTED BY ITS REPRESENTATIVE VANDANNOORE SADASIVAN. 2. VINOBA SMARAKA HANDLOOM WEAVERS CO-OPERATIVE SOCIETY H.(T) NO.520, KALLIYOOR P.O, REPRESENTED BY ITS REPRESENTATIVE PERINGAMALA VIJAYAN BY ADV. SRI.D.SOMASUNDARAM RESPONDENT(S): --------------- 1. DIRECTOR OF HANDLOOM AND TEXTILES, THIRUVANANTHAPURAM. 2. KERALA STATE HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LTD. NO.232, THIRUVANANTHAPURAM,(HANTEX), REPRESENTED BY ITS MANAGING DIRECTOR. 3. ELECTORAL OFFICER, KERALA STATE HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LTD.NO.232, HEAD OFFICE, THIRUVANANTHAPURAM(JOINT DIRECTOR HANDLOOM TEXTILES DIRECTORATE, VIKAS BHAVAN, THIRUVANANTHAPURAM. 4. RETURNING OFFICER, KERALA STATE HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LTD. NO.H.232, HEAD OFFICE, THIRUVANANTHAPURAM,(DEPUTY REGISTRAR, DISTRICT INDUSTRIES CENTRE,THIRUVANANTHAPURAM). WPC.NO.946/2010 ADDITIONAL RESPONDENTS 5. G.R.ANIL KUMAR, AGED 48 YERS, S/O V.RAMANKUTTY PILLAI DEVIKA, N.S.S. COLLEGE ROAD, KAIMANAM, THIRUVANANTHAPURAM ( DELEGATE OF MUKKOM PALAMOOD HAND LOOM WEAVERS CO-OPERATIVE SOCIETY TO THE GENERAL BODY OF KERALA STATE HANDLOOM WEAVERS CO-OPERATIVE SOCIETY LTD.) 6. REGHUNATHAN MULANINNA KANJIRAMKULAM KIZHAKKARIKU PUTHENVEEDU KANJIRAMKULAM, ATHIYANNUR TRIVANDRUM 7. G.ASHOKAN VARUVILAKATH PERINGAMMALA VENGANUR, TRIVANDRUM Additional respondent No.5 is impleaded vide order dated 3-2-2010 in I.A.No.1343/2010. Additional respondents 6 and 7 are impleaded vide order dated 1-6-2010 in I.A.No.6500/2010 ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE FOR R2 SPECIAL GOVT.PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2010 ALONG WITH W.P.C.NO.4174/2010, 3671/2010 & WA.NO.1167/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - W.P.(C)Nos.946, 3671, 4174 of 2010 & W.A.No.1167 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of July, 2010 JUDGMENT Basheer, J. Election process set in motion in a Co-operative institution has led to this spate of writ petitions and writ appeal. Since a common issue viz. the validity, regularity and other internecine disputes relating to the process is the subject matter of these cases, they are being disposed of by this common judgment. 2. Election to the Kerala State Handloom Weavers Co-operative Society Ltd (HANTEX), Thiruvananthapuram was notified through Ext.P1 notification dated December 21, 2009. The election was scheduled to be held on January 27,2010. It is not in dispute that there are 467 primary societies in the Apex Body as its members. In addition to the above, two Co-operative Spinning Mills and one nominee each from the Govt. of Kerala and Govt. of India are also its members. Thus there are 471 members in toto in the said society. WPC.No.946/2010 & connected cases 2 3. Soon after the election process was set in motion, it appears that dispute arose as to the eligibility of certain member societies to participate in the election. Petitioners in W.P.(C)No.946/2010 alleged that 88 ineligible societies have been included in the voters' list. They further contended that if election is held without removing the ineligible societies from the voters' list, the entire election process will result in mockery of the democratic process. Therefore, the petitioners in this writ petition prayed for issue of a writ in the nature of mandamus or such other appropriate writ or direction to the Electoral Officer and Returning Officer not to allow the delegates of those dormant and non-functional Handloom Societies to cast their votes in the election scheduled to be held on January 27, 2010. The other prayer in this writ petition is to issue a writ in the nature of mandamus to the two officials referred to above, to remove the ineligible societies, whose names have been included in Ext.P2 voters list. 4. Almost identical prayers have been made by the petitioners in W.P.(C)No.3671/2010 also. They are stated to be delegates, who have been duly authorised by the eligible societies to cast their votes in WPC.No.946/2010 & connected cases 3 the ensuing election. 5. In W.P.(C)No.4174/2010, which has been field after the polling, the primary prayer is to issue a writ in the nature of certiorari to quash Ext.P1 election notification. However, the second prayer is to issue an appropriate writ, order or direction to the Returning Officer to count the votes cast by the petitioners and other similarly situated societies, and which are now kept in separate boxes. The third prayer in this writ petition is to declare that “ votes cast by the 57 societies, whose delegates are neither committee members nor members of the member societies, as invalid.” 6. When W.P.(C)No.946/2010 came up for consideration before a learned Single Judge of this court on January 19, 2010, the following interim order was passed “ Heard the learned counsel appearing on both sides. On going through the writ petition and after hearing the submissions made at the Bar, I am prima facie satisfied that as an interim measure the votes cast by delegates of the 88 societies named in Ext.P2 representation submitted by the petitioners should be polled separately and kept in a separate ballot box. I accordingly direct respondents 2 to 4 to ensure that the votes cast by the delegates of the 88 societies WPC.No.946/2010 & connected cases 4 named in Ext.P2 representation submitted by the petitioners are polled separately and kept in a separate ballot box. I also direct that until further orders, the result of the election scheduled to be held on 27-1-2010 shall not be declared. The respondents may move for variation of this order after filing counter affidavit.” 7. Later, on February 16, 2010, the learned Government Pleader was directed by the court to make available the records relating to the 22 out of the 88 societies referred to above, whose delegates had already cast their votes and which were kept in a separate box as ordered by the court. It was further directed that the records relating to the election and appointment of the Administrator in the above 22 societies also be produced. 8. Still later, on June 17, 2010, when all these writ petitions came up for further consideration before the learned Single Judge, the interim order dated January 19, 2010 was modified in the following manner “ In the above circumstances, the fourth respondent is directed to count the votes that are kept in the separate ballot box separately and to declare the results counting the said votes also, together with the undisputed votes that are WPC.No.946/2010 & connected cases 5 submitted to have been already counted. After counting, the disputed votes shall be retained separately in the ballot box as earlier directed. The above direction shall be complied with, within a period of ten days. After counting, the results shall be produced in Court in a sealed cover. Declaration of the results shall be made after obtaining further orders from this Court.” 9. The above order is under challenge in Writ Appeal No.1167/2010. The primary concern of the appellants, who are respondents 6 and 7 in W.P.(C)No.946/2010, appears to be that stalling of declaration of election is likely to create havoc in the day-today administration of the Apex Society. The only prayer in the writ appeal is to declare the result of the election without any further delay. 10. The main dispute highlighted by petitioners in W.P.(C) Nos.946/2010 and 3671/2010 appears to revolve around the eligibility of 88 primary societies which are enumerated in Ext.P2 complaint filed by the petitioners in W.P.(C)No.946/2010. According to these petitioners, the list of societies indicated in Ext.P2 has been furnished to them by the General Managers of District Industries Centres on a query made under the Right to Information Act. These societies are WPC.No.946/2010 & connected cases 6 stated to be “dormant and non-functional”. Some of them have already been ordered to be liquidated, and in respect of others, liquidation proceedings are stated to be pending. Any how, we do not propose to deal with the above aspect at this stage. Suffice it to say that this is a matter to be probed into further by the competent authority. It is on record that 22 delegates from the list of 88 so called non-functional dormant societies have cast their votes in the election. Those 22 votes have been kept in a separate box as directed by this court. 11. Sri.D.Somasundaram, learned counsel for the petitioners in W.P.(C)No.946/2010 submitted before us that petitioners do not intend to pursue the matter any further at this stage in the changed scenario and the writ petition may be dismissed as withdrawn. His only prayer is that the result of the election may be declared in order to enable the elected committee to assume office. 12. Sri.George Poonthottam, learned counsel who appears for the petitioners in W.P.(C)No. 3671/2010 also submits that the writ petition has lost its relevance for the time being, in as much as votes have already been counted, though the results are yet to be declared. WPC.No.946/2010 & connected cases 7 He also prays that the elected members may be allowed to assume office without any further delay. 13. The contention of the petitioners in W.P.(C)No.4174/2010 is slightly different. It is contended by them that many voters who cast their votes were not at all eligible to do so in as much as many of them were neither committee members nor were they members of any society at all. Petitioners point out that there is flagrant violation of Rule 44 A of the Kerala Co-operative Societies Rules. Yet again, we do not propose to advert to or deal with the above contention at this stage in view of the order we propose to pass in these cases. 14. However, the counter affidavit filed by the Director of Hand loom and Textiles throws some light on the entire issue which we have referred to earlier. It is averred by the Director that out of the 381 societies who have sent their authorisation letters, 369 exercised their votes in the election. 346 votes were deposited in one box and 22 in another box in terms of the direction issued by this court in W.P.(C) No.946/2010. The vote cast by the government nominee has been kept in a separate sealed cover. It is further stated that 346 undisputed votes WPC.No.946/2010 & connected cases 8 were counted and the results are produced in a sealed cover before this court. The ballot box containing the disputed 22 votes has been sealed and kept in safe custody. The Director further states that the 22 disputed votes have also been counted along with the other undisputed votes and the results are also produced before this court in a separate sealed cover. It is further stated by the Director that going by the provisions contained in Rule 44 A of the Rules, only a committee member can represent that society in another society and that at the time of election and voting, only the authorisation letters signed by the member societies, their specific resolution authorising the delegate and the Identity Cards of the delegates in Form 6A issued by the member societies were insisted upon. The Director concedes that there are no ways or means to prove the allegations raised the petitioners at the time of election and voting. The Director further states that 28 out of 58 societies enumerated in Ext.P4 had cast their votes who are stated to be non-committee members. It is further seen admitted by the Director that one society which has got neither an elected committee nor an Administrator had also cast its vote. According to the Director, one WPC.No.946/2010 & connected cases 9 society is not traceable since 2006. 15. We have referred to the facts and figures available on record in these cases rather too elaborately only to indicate our anxiety as to how, some of the societies in the state, if not many, are functioning. Who is responsible for this predicament ? We do not propose to seek an answer from anybody. 16. The very purpose or motto of Co-operative movement in the country as dreamt by the Father of this Nation many many years ago still remains to be a mirage. It appears that this is the way politicians like the system to work. Everybody seems to be interested only in advancing his own interest rather than the welfare of the common man. We are afraid, a day will come when people will say; enough is enough, let us try to have some other system which will serve the aspirations of the common man. 17. Coming back to this case, we are of the view that the present stalemate need not be allowed to continue any further. We have opened the sealed cover produced before us by the Returning Officer. The result shall be officially declared by the Returning Officer WPC.No.946/2010 & connected cases 10 tomorrow itself at 3.00 p.m. at the office of the Apex Society. The learned Special Government Pleader shall communicate this order orally to the officer concerned today itself. 18. What remains is the fate of these cases. In our view the parties, if they are aggrieved, have to necessarily approach the statutory authority namely the Arbitration Court as provided under Section 69 of the Co-operative Societies Act. It is made clear that we have not considered the merit of any of the contentions raised by any of the parties in these cases. It will be open to the parties to raise all their contentions before the Statutory Authority. 19. The Arbitration Court shall, if any motion is made in the form of an election dispute, decide the issue in accordance with law, after affording sufficient opportunity to all parties concerned. The Electoral Officer and Returning Officer shall produce the ballot boxes and all other connected records before the Arbitration Court, as and when called for. In the meanwhile, all the records shall be kept under seal in the Treasury itself, where they are reportedly kept now. 20. The Apex Society shall also make available all the records WPC.No.946/2010 & connected cases 11 relating to the primary societies before the Arbitration Court, as and when directed. The sealed cover which is now opened shall be kept in the Registry under its seal. The carbon copy, which is also available in the sealed cover, shall be returned to the learned Special Government Pleader in a sealed cover to be delivered to the Returning Officer. 21. In the peculiar facts and circumstances of the case, the prayer made by learned counsel for the petitioners in W.P.(C) No.4174/2010 as well as the learned counsel who appears for the Apex Society to allow the Administrator to continue in office till the election dispute is finally settled by the Arbitration Court cannot be entertained. We have taken the above view after perusal of the result of the election which is available before us. We hasten to add that this view taken by us on this aspect need not sway the Arbitration Court in any manner. This is only a prima facie view which we take in the peculiar facts and circumstances of this case. In other words, it will be open to the Arbitration Court to pass appropriate orders in accordance with law, if such a motion is made. But, in our view, the elected members cannot be denied their legitimate right to assume office. Therefore, the competent WPC.No.946/2010 & connected cases 12 authority is directed to ensure that the elected members assume office without any further delay. Writ petitions and Writ Appeal are disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. WPC.No.946/2010 & connected cases 13