IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 WP(C).No. 11590 of 2008(D) -------------------------- PETITIONER(S): --------------- 1. RAJALEKSHMI V., GOURI NILAYAM, CHELAMBRA P.O., MALAPPURAM. 2. RADHAMONI C.P., KARAYIL PURAYIL VEEDU, KOLAKKATTUCHALI P.O. CHELAMBRA 3. NABEESA V.P., PATHIYATT HOUSE, CHELAMBRA P.O., MALAPPURAM. 4. ANITHA T.P., MANGALASSERY HOUSE, CHELAMBRA P.O., MALAPPURAM. 5. SREEMATHI M., PRASHEEJA PALACE, CHALIPARAMBU CHELAMBRA P.O., MALAPPURAM. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENT(S): --------------- 1. JOINT REGISTRAR (G) OF CO-OPERATIVE SOCIETIES, MALAPPURAM. 2. THE CHELAMBRA PANCHAYATH VANITHA SAHAKARANA SANGHAM LTD.NO.M.681, REPRESENTED BY ITS SECRETARY. 3. VIJAYAM, D/O.DASARADHAN, MUNGEGARAPAI HOUSE, CHELEMBRA MEMBER, MANAGING COMMITTEE OF THE CHELEMBRA PANCHAYATH VANITHA SAHAKARANA SANGHAM, LTD.NO.M.681. 4. OMANA, W/O.VELAYUDHAN, KARUMANANGAL, MEMBER, MANAGING COMMITTEE OF DO. DO. 5. SUBHADRA, D/O.ARAMUGHAN, MEMBER, MANAGING COMMITTEE OF DO. DO. 6. C.SATHIDEVI, D/O.VELAYUDHAN, PRESIDENT, CHELEMBRA PANCHAYATH VANITHA SAHAKARANA SANGHAM LTD.NO.M.681. 7. SOBHANA P., D/O.SANKARAN NAIR, MEMBER MANAGING COMMITTEE OF DO. DO. 8. CHANDINI K., MEMBER, MANAGING COMMITTEE OF DO. DO. 9. DHANYA K., MEMBER, MANAGING COMMITTEE OF DO. DO. ADV. SRI.BABU S. NAIR FOR R2 SRI.M.P.MADHAVANKUTTY FOR R3 TO 9 GOVERNMENT PLEADER SMT.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 11590/2008 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE PRELIMINARY VOTERS' LIST. P2. COPY OF THE COMPLAINT BY P1. P3. COPY OF THE PETITION BY P3 DTD.8.12.07. P4. COPY OF THE PETITION BY P1 BEFORE R1. P5. COPY OF THE FINAL VOTERS' LIST. P6. COPY OF THE JUDGMENT IN W.P.(C).No. 3192/2008 OF THIS COURT. P7. COPY OF THE ORDER DTD.4.3.08 OF R1. P8. COPY OF THE GENERAL BODY NOTICE. RESPONDENT(S)' EXHIBITS: R2A. COPY OF THE COMMUNICATION DTD.29.10.10. B. COPY OF THE RECEIPT ISSUED BY THE C.I. OF POLICE, THIRURANGADI. C. COPY OF THE RECEIPT ISSUED BY -DO- DTD.10.2.09. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.11590 of 2008 ================== Dated this the 20th day of January, 2011 J U D G M E N T This writ petition is filed by a set of former elected members of a co-operative society, who were unseated in an election of the society, complaining that manipulating records during the period when the administrator was in charge, illegally additional members were enrolled and allowed to vote in the election to the Director Board. The former Director Board consisted of the petitioners and others, and they were in office till 28.6.2007. On that date, six of the ten members of the society resigned, as a result of which, the society was put under the control of an administrator with effect from 29.6.2007. According to the petitioners, on that date, although there were 127 members on the rolls, after deleting those who are no more and who have withdrawn from membership, there were only 118 members. But when the electoral roll for election to the Director Board of the society was published, it consisted of 221 voters, from which, it is seen that the total number of members enrolled was 232. Therefore, the petitioners contend that additional members were illegally enrolled by the administrator during the period he was under control. In the above circumstances, the petitioners have filed this writ petition seeking the following reliefs: “i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P7 and quash the w.p.c.11590/08 2 same; ii) issue a writ of mandamus or appropriate direction commanding and compelling the 1st respondent to remove respondents 3 to 9 from the Managing Committee of the 2nd respondent forthwith; iii) to declare that the respondents 3 to 9 are not members of the 2nd respondent and hence legally disqualified/disentitled to be elected as members of the Managing Committee or continue as members of the Managing Committee of the 2nd respondent; iv) to direct the 1st respondent to ascertain whether the respondents 3 to 9 are members of the 1st respondent, whether they have been enrolled by a duly elected Managing Committee, if not, remove them from the Managing Committee of the 2nd respondent, and if after removing respondents 3 to 9 from the Managing Committee of the 2nd respondent, there is no quorum, appoint Administrator in the 2nd respondent under Section 33 of the Co-operative Society Act. v) to declare that persons shown as Sl. No.119 onwards in Ext.P5 are not members of the 2nd respondent. vi) to direct the respondents 2 to 9 not to take any policy decision or to hold the general body meeting.” 2. A counter affidavit has been filed on behalf of the 1st respondent-Joint Registrar of Co-operative Societies, Malappuram, wherein the contention raised is that the administrator has not enrolled any members in the 2nd respondent society. According to him, in the Board meeting convened on 26.5.2007, the then Director Board in power had adopted a resolution enrolling 105 A class members in the society and in between 26.5.2007 and 24.12.2007, which is the date of election, no members were enrolled. The 2nd respondent has also filed a counter affidavit taking the very same contention. This Court on 4.4.2008 directed the Secretary of the 2nd respondent-society to produce, on 9.4.2008, the minutes book, the share register and the w.p.c.11590/08 3 day book of the society for the year 2007-2008. Pursuant to the same, three registers were produced stated to be the minutes book, membership register and the day book of the society. After perusing the same, this Court passed the following interim order on 11.4.2008: “Following the interim order at the stage of admission, the Secretary of the second respondent has, through the learned counsel appearing for the second respondent, produced before this Court three books shown to be the Minutes Book, the Day Book and the Share Register. I deem it appropriate that there is a deeper look by this Court at the Minutes Book, including its credibility. Those three books are, hence, retained in the safe custody of this Court for further proceedings. The Society is permitted to maintain three separate small note books in lieu of the aforesaid books which are retained today, for the purpose of its day to day functioning. 2. Having regard to the nature of the materials on record and pleadings, it is directed that no meeting of the General Body of the society will be held for a period of three weeks. It is further directed that the committee in office shall not involve in any policy decision, but shall only carry out the day to day functioning of the society. The Secretary is called upon to file an affidavit stating whether she stands by the credibility of the Minutes Book presented from her custody. The Joint Registrar having jurisdiction over the society will ensure that this order is scrupulously obeyed.” Pursuant to the same, the Secretary filed an affidavit, after perusing which, this Court again passed an order on 14.11.2008, as follows: Perused. The Secretary of the second respondent, who was directed to file an affidavit, has today filed a counter affidavit on behalf of the second respondent, more than seven months after the order dated 11-4-2008 was issued. I am satisfied that the counter affidavit just does not answer the query of this Court contained in the order dated 11-4-2008 which was merely as regards the credibility of the minutes book which was placed before this Court. The Secretary is the custodian of that file and it was therefore that the Secretary was directed to file an affidavit stating whether she stands by the credibility of the minutes book presenting from her custody. In the absence of any such statement in the counter affidavit now on record, the Secretary of the second respondent is directed to be present in person on 20-11-2008. Post on 20-11-2008.” w.p.c.11590/08 4 Thereafter, the 2nd respondent has filed an additional affidavit also. From the proceedings in this writ petition it is seen that thereafter this Court dispensed with the personal appearance of the Secretary with a direction to file a better affidavit. It is thereafter that this writ petition is comping up for hearing today. 3. I have heard the counsel on both sides. 4. As is clear from the earlier interim orders in this case, the learned Judge who heard the matter found something wrong with the registers produced. On a perusal of the minutes book produced, I also find something wrong with the minutes of the meeting 26.5.2007 as recorded in the minutes book. There is difference in the tone of the colour of the pages in which the minutes are recorded and the pages prior to those minutes. The signatures therein also do not have the usual flow of signatures. The very same persons had signed in the minutes of the previous meeting in the immediately preceding page. Difference is discernible in respect of the signatures also. The learned counsel for the petitioners would argue that it can be seen from the registers that the pages have been added and the minutes book rebound. Although the registers are not ideal condition, I am unable to enter a definite finding as to whether the minutes book was rebound after adding pages. The pages are continuously numbered with printed numbers. Of course, there is no indication anywhere in any of the w.p.c.11590/08 5 three registers to suggest that those books are that of the particular society insofar as the name of the society is not printed anywhere in the three registers. But I find that the other two registers, which are contemporaneous documents are not susceptible to such suspicion at least prima facie although the petitioners' advocate would argue that those registers could have been re-written to suit the minutes book. That can only be a suspicion at best. The entries in the membership register and day book do tally with the minutes for the meeting held on 26.5.2007. Of course, in the membership register in respect of member no.127, it is stated that he was enrolled as per a decision of the meeting of the Board of Directors held on 15.12.2007. The minutes book does not contain any minutes of the meeting held on 15.12.2007. But from the previous pages of the minutes book, I find that there was enrolment of members in the meeting held on 15.12.2007 and in the membership register other members enrolled as per decision on 15.12.2006 have been entered. Therefore, the date of 15.12.2007 could only be a mistake for 15.12.2006. It is true that in the membership register from member No.111 onwards there is correction of serial numbers upto the last number. Still all these are only sufficient to create a suspicion about the genuineness of this register. I cannot with any amount of certainty come to the conclusion that there was manipulation insofar as despite the suspicion regarding w.p.c.11590/08 6 the entries in the minutes book, the other two registers tally with the decision entered for the meeting dated 26.5.2007. Suspicion cannot take the place of proof or even evidence. On the basis of the materials available before me, I am unable to enter a definite finding regarding manipulation of the documents. In the above circumstances, I do not think that the petitioners' prayers can be allowed. Going by the records, there was enrolment of members on 26.5.2007, which is a date much prior to the administrator taking charge, which is in fact when the petitioners themselves were in power. In the above circumstances, I am not inclined to take any further steps in respect of the allegations of the petitioners. Accordingly, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge