IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 WP(C).No. 18192 of 2010(Y) -------------------------------------- PETITIONER(S): ----------------------- 1. THOMAS. K.D, DIRECTOR, SASIMALA KSHEEROLPADAKA SAHAKARANA SANGAM LTD.NO. W 22 (D) APCOS, SASIMALA.P.O, WAYANAD,RESIDING AT KANIYODIKAL HOUSE, WAYNAD. 2. SKARIA. K.A, PRESIDENT, PULPALLY LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD.NO.W 168, PULPALLY.P.O, RESIDING AT MAMBALLY HOUSE, WAYANAD. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): ------------------------- 1. ASSISTANT REGISTRAR (PLANNING), OFFICE OF THE JOINT REGISTRAR (G), WAYANAD, ELECTORAL OFFICER TO WAYNAD DISTRICT WHOLE SALE CONSUMERS' CO-OPERATIVE STORE, LTD.NO.W 36, KALPETTA, WAYNAD DISTRICT. 2. UNIT INSPECTOR, VYTHIRI UNIT, OFFICE OF THE ASSISTANT REGISTRAR (G), KALPETTA, RETURNING OFFICER TO WAYNAD DISTRICT WHOLE SALE CONSUMERS' CO-OPERATIVE STORE LTD.NO.W 36, KALPETTA, WAYNAD DISTRICT. 3. WAYNAD DISTRICT WHOLE SALE CONSUMER'S CO-OPERATIVE STORE LTD.NO.W 36, REPRESENTED BY ITS GENERAL MANAGER, KALPETTA, WAYNAD DISTRICT. 4. WAYNAD DISTRICT WHOLE SALE CONSUMERS' CO-OPERATIVE STORE LTD.NO.W 36, REPRESENTED BY ADMINISTRATOR, KALPETTA, WAYNAD DISTRICT. 5. STATE CO-OPERATIVE ELECTION COMMISSION, OFFICE OF THE STATE CO-OPERATIVE ELECTION COMMISSION, TRIVANDRUM. WP(C).No. 18192 of 2010(Y) *ADDL. RESPONDENTS 6 TO 23 IMPLEADED ADDL. R6: CHANOTH KOLLI KSHEEROLPADAKA SAHAKARANA SANGAM W.27 D APCOS, REPRESENTED BY PRESIDENT, CHANNOTHKOLLI, SEETHAMOUNT P.O., PIN-673 579. ADDL. R7: KUNNAMBETTA KSHEERA VYAVASAYA CO-OPERATIVE SOCIETY LTD., REPRESENTED BY PRESIDENT, 6 D, KUNNAMBETTA, P.O. KUNNAMBETTA, 673 123. ADDL. R8: VARADOOR MILK SUPPLY CO-OP. SOCIETY LTD. NO.17 D, REPRESENTED BY PRESIDENT, VARADOOR P.O., 673 591. ADDL. R9: TRISSILERI KSHEEROLPADAKA SAHAKARANA SANGAM NO.8(1) (APCOS), REPRESENTED BY PRESIDENT, P.O. THRISSILERI, 678 646. ADDL. R10: KATTIMOOLA KSHEEROLPADAKA SAHAKARANA SANGAM NO.9 D, APCOS, REPRESENTED BY DIRECTOR, POROOR, P.O. POROOR, PIN-670 644. ADDL. R11: MANANDAWADY TALUK HOUSING CO-OPERTIVE SOCIETY LTD. NO.C 411, MANANTHAWADY P.O., 670 645. ADDL. R12: THENERI KSHEEROLPADAKA SAHAKARANA SANGAM D 40, REPRESENTED BY DIRECTOR, KAKKAVAYAL P.O., PIN-673 122. ADDL. R13: MULLANKOLLI KSHEEROLPADAKA SAHAKARANA SANGAM L.NO.D 62, REPRESENTED BY PRESIDENT, MULLANKOLLI P.O., PIN-673 579. ADDL. R14: MAHATMAJI MEMORIAL PRINTING WORKERS INDUSTRIAL CO-OPERATIVE SOCIETY NO.S. IND. 43, REPRESENTED BY DIRECTOR, S. BATHERY P.O. ADDL. R15: SEETHAMOUNT KSHEEROLPADAKA SAHAKARANA SANGAM LTD. NO.W 16 D APCOS, REPRESENTED BY PRESIDENT, SEETHAMOUNT P.O., PIN-673 579. ADDL. R16: MUPPANAD KSHEEROLPADAKA SAHAKARANA SANGAM LTD. D 7 (D) APCOS, REPRESENTED BY PRESIDENT, P.O.VADAVANCHAL, 673 123. ADDL. R17: PERIKKALLOOR KSHEEROLPADAKA SAHAKARANA SANGAM LTD. NO.W 7 D APCOS, REPRESENTED BY PRESIDENT, PERIKKALLOR P.O., 673 579. ADDL. R18: VANITHA VIVIDHOSYA SAHAKARANA SANGAM NO.W.250, REPRESENTED BY DIRECTOR, PULPALLY, MULLANKOLLI, SEETHAMOUNT P.O., 673 579. WP(C).No. 18192 of 2010(Y) ADDL. R19: MULLANKOLLI RUBBER AND AGRICULTURAL MARKETTING CO-OPERATIVE SOCIETY LTD.NO.W 184, 11, REPRESENTED BY DIRECTOR, MULLANKOLLI, 673 579. ADDL. R20: KABANIGIRI KSHEEROLPADAKA SAHAKARANA SANGAM LTD.NO.W.16 D APCOS, REPRESENTED BY PRESIDENT, KABANIGIRI P.O., 673 579. ADDL. R21: AMBALAVAYAL KSHEEROLPADAKA SAHAKARANA SANGAM LTD.NO.1961, REPRESENTED BY DIRECTOR, VADAVANCHAL, 673 579. ADDL. R22: THONDERNADU LABOUR CONTRACT CO-OPERATIVE SOCIETY LTD. NO.D (APCOS) 100, APCOS, REPRESENTED BY PRESIDENT, THOTTUMALA, MANANTHAWADY, 670 645. ADDL. R23: MANIYANCODE SCHEDULED CASTE INDUSTRIAL SOCIETY LTD. NO.15 IND (N) W.6, REPRESENTED BY DIRECTOR, MANIANCODE P.O., KALPETTA-671 322. *ADDL. RESPONDENTS 6 TO 23 ARE IMPLEADED AS PER ORDER DATED 06/07/2010 IN I.A.8975/2010. R1, R2 & R5 BY SPL. GOVT. PLEADER SMT.ANU SIVARAMAN. R4 BY ADV. SRI.P.K.RAMKUMAR. ADDL. R6 TO R23 BY ADV. MR.P.P. JACOB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2010, ALONG WITH WP(C) NO. 18426 OF 2010, THE COURT ON 15/10/2010 DELIVERED THE FOLLOWING: WP(C).No. 18192 of 2010(Y) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ONE OF THE DECISION IN RESPECT OF FIRST PETITIONER DATED 08/06/2010 OF THE SASIMALA KSHEEROLPADAKA SAHAKARANA SANGAM. EXT.P2: COPY OF THE JUDGMENT IN WP(C) NO. 6715 DATED 12/03/2010. EXT.P3: COPY OF THE ELECTION NOTIFICATION DATED 25/05/2010. EXT.P4: COPY OF THE VOTERS LIST THEN PUBLISHED. EXT.P5: COPY OF THE RESOLUTION DATED 19/06/2009 OF THE COMMITTEE. EXT.P6: COPY OF THE LIST FURNISHED BY THE ADMINISTRATOR. EXT.P7: COPY OF THE LIST OF THE INSTITUTIONAL MEMBERS REMOVED FROM THE VOTERS LIST. EXT.P8: COPY OF THE NOTICE ISSUED IN RESPECT OF 2ND PETITIONER. EXT.P9: COPY OF THE OBJECTION DATED 05/06/2010 FILED BEFORE THE ELECTORAL OFFICER. EXT.P10: COPY OF THE FINAL VOTERS LIST DATED 09/06/2010. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE BY-LAW OF THE 4TH RESPONDENT. //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 18192/2010-Y & 18426/2010-C - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2010. JUDGMENT The petitioners in these writ petitions are delegates representing primary societies in the third respondent Wayanad District Wholesale Consumer’s Co-operative Store. They are challenging the decision of the Administrator in forwarding the list of voters to the Electoral Officer deleting the names of their primary societies along with several such societies. The election has already been conducted as per the directions issued by this Court and the votes of those members have also been separately polled and kept in separate box and the counting is also over. What remains is only the declaration of the result of the election. 2. The Wayanad District Wholesale Consumer’s Co-operative Store was being managed by an elected managing committee whose term expired on 3.9.2009. Even though they took a resolution to conduct the election on 30.8.2009, as there was no proper quorum, the resolution was returned by the Joint Registrar. Thus, the election could not be conducted by the managing committee which paved the way for appointing an Administrator for a period of six months. This Court in a writ petition filed by the then wpc 18192 & 18426/2010 2 President of the Store, viz. W.P.(C) No.21904/2009 had directed to conduct the election and accordingly the administrator took a resolution to conduct the election on 27.6.2010. The first respondent is the Electoral Officer and the second respondent is the Returning Officer appointed by the State Election Commission. 3. The electorate of the store includes individual members and institutional members. There are 916 individual members and 82 institutional members as on 19.6.2009 and thereafter no new membership has been granted. Ext.P4 is the voters list for the election held on 30.8.2004 which included 72 institutional members and only 10 primary societies have been enrolled as new members till the end of the term of the managing committee. 4. The petitioners point out that when the list of members as stood 60 days prior to the date of election, was forwarded by the Administrator to the Electoral Officer, it included only 57 members as against the total number of 82 members. It is pointed out that the Administrator has no power to delete or decline to include all the genuine members. It is further pointed out that none of these members have been removed from the membership by recourse to Rule 16(3) of the Kerala Co-operative Societies Rules after giving due notice to them. Ext.P6 is the copy of the list furnished by the wpc 18192 & 18426/2010 3 Administrator to the Electoral Officer which was published as a preliminary voters list. It is also pointed out that even during the time of the Administrator, a general body meeting was convened on 15.3.2010, wherein all the 82 institutional members were given notice. Ext.P9 is the objection filed by the first petitioner in W.P.(C) No.18192/2010 to the preliminary voters list and several objections were filed by other societies which were excluded from the preliminary voters list. Without hearing any of the institutional members the final voters list was published as per Ext.P10. Mainly it is prayed that a direction be issued to include all the 25 institutional members in the voters list. 5. While admitting the writ petitions on 11.6.2010, this Court passed an interim order whereby the nomination submitted by the petitioners were directed to be accepted provisionally. Thereafter, by order dated 18.6.2010, after hearing the parties, an interim direction was granted to include 25 primary societies mentioned in Ext.P7 in the voters list and to permit them to vote in the election as per Ext.P3. The votes polled by the representatives of the said 25 primary societies were directed to be kept in a separate ballot box by the Returning Officer. It was further directed that the votes can be counted and the results of the election can be declared. However, the votes collected separately shall be retained separately after wpc 18192 & 18426/2010 4 declaration of the results, subject to further orders in the writ petitions. 6. Against the above interim order, the 4th respondent Administrator filed W.A. No.1054/2010 which was disposed of by a Division Bench by judgment dated 21.7.2010. The Division Bench permitted the Returning Officer to count the votes and ordered that it shall be kept in a separate ballot box. It was further ordered that counting of votes and declaration of result shall be done only after obtaining orders from this Court. It was also held that the dispute relating to 25 votes shall be decided in the writ petition. 7. Learned counsel for the petitioners contended that the action of the Administrator in removing the 25 institutional members when the voters list was furnished to the Electoral Officer, is purely in violation of the rules. It is pointed out that under Rule 35A(4) of the Rules, the Chief Executive Officer is bound to furnish the list of members as stood 60 days prior to the date of election, to the Electoral Officer. In the previous election there were 72 institutional members and the managing committee enrolled 10 members and thus there are 82 members. It is pointed out that a member can be removed only as provided under Rule 16(3) of the Rules. There is a provision for expulsion of member as per Section 17 of the Act. None of the societies have been removed by any known process of law and therefore wpc 18192 & 18426/2010 5 the action taken by the Administrator and the Electoral Officer is clearly arbitrary and illegal. 8. It is pointed out that going by clause 5(1)(a) of the bye-laws of the Stores, co-operative societies dealing or intending to deal in consumer articles within the area of operation of the stores referred to in bye-law No.1, are entitled to be admitted as members and all these 82 societies have been thus admitted. Therefore, the premise under which the Administrator has deleted the 25 institutional members is also not correct. 9. Learned counsel for the petitioners relied upon various decisions of this Court to contend that the voters list is a fundamental factor in an election and the Administrator has no power to tamper with the same. 10. The decisions relied upon by the learned counsel for the petitioners are: Devassy v. Asst. Registrar of Co-operative Societies (1976 KLT 40), Thankappan & others v. Co-operative Tribunal & others (1979 KLT 528), Krishnan Ezhuthahan v. Asst. Registrar (1990 (1) KLT 695), K. Jaya Varma v. Returning Officer (1999 (2) KLT 826), Gopinathan Nair v. Joint Registrar (2002 (2) KLT 817) and Kadakam Service Co-operative Bank Ltd. v. Narayana Bhat (2004 (2) KLT 179). It is pointed out that any member who has been enrolled prior to 60 days of wpc 18192 & 18426/2010 6 the date of election is entitled to vote as held by this Court in some of the decisions relied upon above. 11. Learned Govt. Pleader, by relying upon the decision of this Court in Vijayakumar's case (1996 (1) KLT 285) submitted that the committee of a society is expected to forward the list of members eligible to vote in the election and therefore the Administrator who is having the powers of the committee can consider whether any of the members are eligible to vote in the election. It is pointed out that non inclusion in the voters list does not mean that they have been removed as members. It is thus pointed out that the action is not illegal. Learned Govt. Pleader relied upon clause 21 of the bye-laws in this context. The argument of the learned Govt. Pleader was supported by the learned counsel appearing for the Administrator who further submitted that in the light of the decisions of this Court in P. Bhaskaran & others v. Addl. Secretary & others (1987 (2) KLT 903) and John v. Liquidator (2006 (1) KLT 11 - FB), a writ petition against the Administrator is not maintainable. 12. The Administrator herein was appointed for the purpose of conducting the election after the term of the managing committee was over. Evidently, prior to the preparation of the preliminary voters list to be wpc 18192 & 18426/2010 7 forwarded to the Electoral Officer, the Administrator has not initiated any proceedings under Rule 16(3) of the Rules, to remove any of the members from the membership of the society. The said position is not disputed. The manner in which the Administrator has decided not to include such institutional members, is therefore important to consider the points raised in these writ petitions. 13. Clause 5 of the bye-laws deals with “membership”. Clause 5(1) provides that “there shall be three classes of members viz. A, B and C”. Sub clause (a) provides as follows: “Co-operative societies dealing or intending to deal in consumer articles within the area of operation of the stores referred to in bye- law No.1 shall be eligible for admission as members and shall be allotted ‘A’ Class shares.” Sub-clause (b) concerns membership for individuals and they shall be allotted ‘B’ Class shares. We are concerned only with sub-clause (a). Going by the same, co-operative societies “dealing or intending to deal” in consumer articles are eligible for admission as members. It cannot be disputed that the concerned members were admitted to membership in terms of the above clause in the bye-law. 14. The Administrator has no case that any other members have wpc 18192 & 18426/2010 8 complained to him about the want of qualification of any of the institutional members on the basis of the above clause in the bye-law. 15. The bye-laws of a co-operative society are framed in the light of Rule 5 of the Co-operative Societies Rule providing for “Subject matter of bye laws”. One of the subjects provided therein, going by Rule 5(1)(e) is regarding “the terms and qualifications for admission to membership, the payment, if any to be made or interest to be acquired as a condition precedent for exercising the right of membership.” Therefore, evidently clause 5(1)(a) of the bye-laws is framed in terms of the said enabling rule. 16. Learned Govt. Pleader and learned counsel for the Administrator relied upon clause 21 of the bye-laws in view of which, it is stated that the Administrator has taken the decision. Clause 21 of the bye-laws is extracted below: “21. MANAGEMENT-BOARD OF DIRECTORS. Subject to such resolution the general body may from time to time pass the entire administration of the stores shall vest in a Board of Directors. The Board of Directors shall consist of eleven members, six of whom shall be representatives of affiliated primary stores or Societies having consumer wings, two from each taluk viz., Vythiri, Manantoddy and S. Bathery, three representatives of individual ‘B’ Class members one from each wpc 18192 & 18426/2010 9 Taluk, and two nominees of the Registrar of whom one shall be a representative of a nominee District Co-op. Bank and the other a Harijan member. A Director who is a representative of an affiliated society shall cease to serve on the Board if the society concerned withdraws the delegation or when he ceases to be a member of the society. Directors representing societies shall be elected from among the delegates of societies by the delegates of societies assembled and attending the general body meeting and those representing individuals by individuals attending the general body meeting.” Obviously it is concerned only with the constitution of the Board of Directors. Evidently, clause 21 is in tune with Rule 5(1)(m) of the Rules dealing with the constitution of the Board of Directors. It is provided in clause 21 that the Board of Directors shall consist of eleven members, six of whom shall be representatives of affiliated primary stores or societies having consumer wings, two from each taluk, viz. Vythiri, Mananthavady and s. Bathery and three representatives of individual ‘B’ Class members, one from each taluk, etc. etc. Learned Govt. Pleader put emphasis on the words “representatives of affiliated primary stores or societies having consumer wings” and contended that such of those societies alone can vote in the election. It is therefore contended that the 25 societies are not wpc 18192 & 18426/2010 10 primary stores or societies having consumer wings and therefore on a reading of the above clause in the bye-law, they cannot be included in the voters list. Evidently, the said contention is untenable. The qualification for membership as institutional members, is contained in clause 5(1)(a) of the bye-laws. Clause 21 of the bye-laws exclusively deals with the constitution of the Board of Directors. It does not concern with the qualification for membership. Therefore, the Administrator and the Electoral Officer were not right in going into bye-law 21, but could have considered clause 5(1)(a) which alone deals with qualification for membership. True that going by clause 21 of the bye-laws, from among the 11 members, six shall be representatives of affiliated primary stores or societies having consumer wings, etc. etc. The distribution is two from each taluk, viz. Vythiri, Mananthavady and S. Bathery. It cannot be stretched to deny voting right, that too without even considering the effect of clause 5(1)(a) of the bye-laws. Therefore, the reliance placed on clause 21 which is not relevant for considering the qualification for membership and continuance thereof is clearly wrong and unacceptable. It is not as if the bye-laws contains one clause dealing with qualification for membership and another dealing with qualification for being included in voters list. wpc 18192 & 18426/2010 11 17. The petitioners have got a case that all the societies represented by them are dealing in consumer items. The Administrator has unilaterally took a decision that 25 institutions need not be included in the voters list only by referring to clause 21 of the bye-laws, as is evident from the arguments of the learned Govt. Pleader and the learned counsel for the Administrator. The concerned officers have also reiterated the said contention in their respective counter affidavits. 18. Therefore, evidently no enquiry has been conducted by the Administrator before forwarding the list of voters to the Electoral Officer. In respect of an important matter like this the decision of the Administrator not to include them will affect their right to vote. It is ununderstandable as to how in a matter like this the Administrator has taken such a drastic decision, unknown to any affected societies. 19. The contentions of the respondents show that even without conducting any enquiry the Administrator and the Electoral Officer took decisions on the qualifications of members to be included in the voters list.. What was available with the Administrator was only the names of societies included in the preliminary voters list and the admission register. Simply by looking into these and by reference to clause 21 of the bye-law, he has taken a decision in the matter. By no stretch of imagination such a decision can wpc 18192 & 18426/2010 12 be sustained in law. The right to vote and the right to contest in an election is a statutory right. The same can be deprived only by a proper and legal method. 20. In fact, the removal from membership is governed by Rule 16(3) of the Rules which is extracted below: “16(3) Where a person already admitted to membership is seen to have been ineligible for membership at the time he was so admitted as a member or if he subsequently becomes ineligible for membership the Committee of the Society may remove the person from membership after giving him an opportunity for making his representation if any, and the person concerned shall thereupon cease to be a member of the society.” Therein, the concerned member will have to be given an opportunity for making his representation and only after a proper decision, alone he will cease to be a member of the society. Such course has not been adopted by the Administrator here. 21. The argument of the learned Govt. Pleader in this regard is that non inclusion in the voters list is not removal from membership and therefore absence of a proceedings under Rule 16(3) of the Rules will not nullify the decision taken by the Administrator. Herein, reliance is placed on the decision of a Division Bench of this Court in Vijayakumar v. Joint wpc 18192 & 18426/2010 13 Registrar (1996 (1) KLT 285), taking the view that the Returning Officer has power to make an enquiry regarding the eligibility of a voter to be included in the voters list. In fact, Rule 35(3) of the Rules was interpreted by the Bench therein. After referring to various aspects, it was held thus in para 16: “It has therefore, to be taken that the Returning Officer has the power to conduct a summary enquiry when objection is raised regarding the inclusion of a member in the voters list. The powers to consider the objections has been conferred on the Returning Officer alone. There is nothing in the Act or Rules to show that he can delegate or abdicate his functions in favour of any authority of the Society. The returning officer is required to give his own ruling on the objection. He cannot rule out any objection or sustain it arbitrarily. In order to arrive at a proper decision it is open to him to conduct a summary enquiry to be satisfied about the sustainability or otherwise of the objections. But, he can do so only if the objections are specific and definite against each individual member which can be subjected to verification with reliable materials that may be made available to him by the objections and the authorities of the Society. He is not expected to make a roving enquiry.” The above dictum will also show that the Returning Officer cannot rule out any objection to the preliminary voters list or sustain it arbitrarily and he wpc 18192 & 18426/2010 14 will have to conduct a preliminary enquiry into the matter. But, he can do so only if the objections are specific and definite against each individual member which can be subjected to verification with reliable materials that may be made available to him by the objectors and the authorities of the Society. He is not expected to make a roving enquiry. 22. Herein, against the preliminary voters list with regard to the non inclusion of 25 institutional members, the petitioners had filed objections, with regard to their non-inclusion. It is the case of the petitioner that no enquiry was conducted by the Electoral Officer and the objections were summarily rejected and final voters list was published. Learned Govt. Pleader submitted that the Electoral Officer was also relying upon clause 21 of the bye-law and thus accepted the decision of the Administrator. 23. Actually, the Electoral Officer has also not considered the objections of the petitioners in the right perspective by referring to clause 5 (1)(a) of the bye-laws with regard to the qualifications for membership. Wrongly, clause 21 was relied upon Therefore, the decision of the Electoral Officer is also quite arbitrary and illegal and the dictum laid down in the above decision also will not support the decision taken herein, by the Electoral Officer also. 24. Now I will come to the decisions relied upon by the learned wpc 18192 & 18426/2010 15 counsel for the petitioners. In regard to the jurisdictions of this Court under Article 226 of the Constitution of India, it was held in Devassy's case (1976 KLT 40) that “proper electoral roll is a fundamental factor before the election is actually held and if the