IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 19TH JULY 2011 / 28TH ASHADHA 1933 WP(C).No. 9124 of 2011(M) ------------------- PETITIONER(S): ----------------------- 1. P.K.KOCHUKUNJU, 'SHEEJA MANZIL', KAYAMKULAM. 2. JOSEPH JOHN, ADVOCATE, KANNAYIL HOUSE, BANK ROAD, KAYAMKULAM. 3. P.S.BABURAJ, ADVOCATE, BRAHMAVIDYA MANDIRAM HOUSE, CHIRAKADAVU, KAYAMKULAM. 4. A.P.SHAJAHAN, PEEDIKAPARAMBIL HOUSE, MSM COLLEGE JUNCTION, KAYAMKULAM. 5. SMT. V.KANAKAMMA, 'CHILANKA', CHIRAKADAVAM, KAYAMKULAM. 6. M.VIJAY MOHAN, ILLIKULATHU HOUSE, CHERAVALLY, KAYAMKULAM. BY ADVS. SRI.P.V.BABY SRI.R.KIRAN RESPONDENT(S): ------------------------- 1. THE ALLEPPEY CO-OPERATIVE SPINNING MILLS LTD., (ST)-8, KAREELAKULANGARA P.O., KAYAMKULAM, ALAPPUZHA DISTRICT, REPRESENTED BY ITS GENERAL MANAGER, PIN-690 572. 2. THE DIRECTOR, KERALA HANDLOOM AND TEXTILES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. THE RETURNING OFFICER, THE ALLEPPEY CO-OPERATIVE SPINNING MILLS LTD., (ST)-8, DEPUTY REGISTRAR, DISTRICT INDUSTRIES CENTRE, ALAPPUZHA-688 001. R1 BY ADVS. SRI.K.ANAND, SC SRI. B.S. KRISHNAN SMT.LATHA KRISHNAN BY ADV. SRI. K. SASIKUMAR R2 & R3 BY GOVT. PLEADER SRI. P.M. MANOJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 9124 of 2011(M) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : PHOTOCOPY OF THE JUDGMENT DATED 20/3/2007 IN WRIT PETITION NO. 30057/2006 BY THE HONOURABLE HIGH COURT. EXT.P2 : PHOTOCOPY OF THE APPLICATION DATED 25.2.2011, SENT BY PETITIONER NO. 4 UNDER REGISTERED POST TO THE 1ST RESPONDENT. EXT.P3 : PHOTOCOPY OF THE APPLICATION DATED 21.2.2011 SENT BY 5TH PETITIONER UNDER REGISTERED POST TO THE 1ST RESPONDENT. EXT.P4 : PHOTOCOPY OF THE APPLICATION DATED 21.2.2011 RESPECTIVELY SENT BY 6TH PETITIONER UNDER REGISTERED POST TO THE 1ST RESPONDENT. EXT.P5 : PHOTOCOPY OF THE APPLICATION DATED 21.2.2011 SENT BY BIJU PRABHAKAR LEGAL HEIR OF MEMBER NO. 1 TO THE 1ST RESPONDENT. EXT.P6 : PHOTOCOPY OF THE APPLICATION DATED 21.2.2011 SENT BY ADITHYADAS LEGAL HEIR OF MEMBER NO. 4 TO THE 1ST RESPONDENT. EXT.P7 : PHOTOCOPY OF THE APPLICATION DATED 21.2.2011 SENT BY VISHNUDAS LEGAL HEIR OF MEMBER NO. 5 TO THE 1ST RESPONDENT. EXT.P8 : PHOTOCOPY OF THE APPLICATION DATED 21.2.2011 SENT BY VINAYAK MOHANDAS LEGAL HEIR OF MEMBER NO. 7 TO THE 1ST RESPONDENT. EXT.P9 : PHOTOCOPY OF THE APPLICATION DATED 25.2.2011 SENT BY PREMADAS LEGAL HEIR OF MEMBER NO. 15 TO THE 1ST RESPONDENT. EXT.P10 : PHOTOCOPY OF THE APPLICATION DATED 21.2.2011 SENT BY KIRAN THAMPAN LEGAL HEIR OF MEMBER NO. 16 TO THE 1ST RESPONDENT. EXT.P11 : PHOTOCOPY OF THE APPLICATION DATED 21.2.2011 SENT BY LAKSHMI THAMPAN LEGAL HEIR OF MEMBER NO. 17 TO THE 1ST RESPONDENT. EXT.P12 : PHOTOCOPY OF THE APPLICATION DATED 21.2.2011 SENT BY A. NAHAS LEGAL HEIR OF MEMBER NO. 152 TO THE 1ST RESPONDENT. EXT.P13 PHOTOCOPY OF THE APPLICATION DATED 21.2.2011 SENT BY RAJENDRAN LEGAL HEIR OF MEMBER NO. 929 TO THE 1ST RESPONDENT. (Contd...) WP(C).No. 9124 of 2011(M) EXT.P14 PHOTOCOPY OF THE APPLICATION DATED 25.2.2011 SENT BY SMT. SUDHAMMA LEGAL HEIR OF MEMBER NO. 1208 TO THE 1ST RESPONDENT. EXT.P15 PHOTOCOPY OF THE ELECTION NOTIFICATION DATED 24.2.2011 PUBLISHED BY THE 3RD RESPONDENT. EXT.P16 PHOTOCOPY OF THE OBJECTION DATED 9.3.2011 SUBMITTED BY P.K. KOCHUKUNJU AND BABU RAJ TO THE 3RD RESPONDENT. EXT.P17 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY BIJU PRABHAKAR, LEGAL HEIR OF MEMBER NO. 1 TO THE 1ST RESPONDENT. EXT.P18 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY VISHNUDAS, LEGAL HEIR OF MEMBER NO. 5 TO THE 3RD RESPONDENT. EXT.P19 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY VINAYAK MOHANDAS, LEGAL HEIR OF MEMBER NO. 7 TO THE 3RD RESPONDENT. EXT.P20 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY PREMADAS LEGAL HEIR OF MEMBER NO. 15 TO THE 3RD RESPONDENT. EXT.P21 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY KIRAN THAMPAN, LEGAL HEIR OF MEMBER NO. 16 TO THE 3RD RESPONDENT. EXT.P22 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY LAKSHMI THAMPAN, LEGAL HEIR OF MEMBER NO. 17 TO THE 3RD RESPONDENT. EXT.P23 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY SMT. V. KANAKAMMA, LEGAL HEIR OF MEMBER NO. 21 TO THE THIRD RESPONDENT. EXT.P24 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY A. NAHAS, LEGAL HEIR OF MEMBER NO. 152 TO THE THIRD RESPONDENT. EXT.P25 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY A.P. SHAJAHAN, LEGAL HEIR OF MEMBER NO. 896 TO THE THIRD RESPONDENT. EXT.P26 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY M. VIJAYAMOHAN, LEGAL HEIR OF MEMBER NO. 153 TO THE THIRD RESPONDENT. EXT.P27 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY RAJENDRAN, LEGAL HEIR OF MEMBER NO. 1208 TO THE THIRD RESPONDENT. (Contd...) WP(C).No. 9124 of 2011(M) EXT.P28 PHOTOCOPY OF THE OBJECTION DATED 7.3.2011 SUBMITTED BY SMT. SUDHAMMA, LEGAL HEIR OF MEMBER NO. 1208 TO THE THIRD RESPONDENT. EXT.P29 COPY OF THE FINAL VOTERS' LIST PUBLISHED BY THE 3RD RESPONDENT ON 16.3.2011. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 9124 OF 2011 -------------------------- Dated this the 19th day of July, 2011 J U D G M E N T The petitioners are members of the first respondent co- operative society that was formed in the year 1982. The elections to the Managing Committee of the first respondent society were scheduled to be held on 26.11.2006. At that stage, three of the members of the society including petitioners 1 and 2 herein, filed W.P.(C) No. 30057 of 2006 in this Court raising various contentions including the contention that the voters list published by the Returning Officer is invalid. By Ext.P1 judgment delivered on 20.3.2007, this Court held that voters list has not been validly prepared for the reason that all the members who had been enrolled as members up to 28.8.1998 were not included in the voters list. This Court also directed the Returning Officer to prepare a fresh voters list and complete the election process by notifying fresh dates for receipt of objections, filing and withdrawal of nominations, date of election etc. by suitable amendments to Ext.P1 election notification. Though Ext.P1 judgment was delivered on 20.3.2007, the election notification was issued in compliance with the said WPC No.9124/2011 2 judgment only on 24.2.2011, when Ext.P15 was issued. The instant writ petition was thereupon filed on 22.3.2011 challenging Ex.P15 notification and Ext.P29 voters list published by the Returning Officer. 2. The first contention raised by the petitioners is that this Court has by Ext.P1 judgment directed the election to be resumed from the stage at which it was held up and therefore in view of the directions in Ext.P1 judgment, the Returning Officer should have prepared the voters list in the manner directed by this Court and thereafter proceeded from the stage at which the election process was stopped. In other words, the contention is that a fresh election notification should not have been issued. As regards the voters list, it is contended that the names of legal heirs of deceased members have not been shown in the voters list, though the names of members who have expired have been shown. 3. A statement dated 8.4.2011 has been filed on behalf of the first respondent wherein it is stated that out of the 1817 members of the first respondent society, 1578 are individual members, 238 are institution members and one member is the Government nominee who is also a member having the right to vote. It is further stated that pursuant to Ext.P1 judgment of this Court, letters were sent to all the WPC No.9124/2011 3 1817 members requesting them to furnish the details called for therein. It is further stated that though a large number of persons responded to the notice, 120 persons did not respond and therefore notices were again sent to them asking for relevant information, but they did not respond and therefore the Returning Officer had no other alternative but to publish a voters list containing the names of about 120 members who have already expired. It is also stated that as the legal heirs did not furnish the information sought, the society was not in a position to enrol one among them as a member in the place of the deceased member. 4. I have considered the submissions made at the Bar by Sri.P.V.Baby, learned counsel appearing for the petitioners, Sri.K.Anand, learned counsel appearing for the first respondent and Sri.P.M.Manoj, learned Government Pleader appearing for respondents 2 and 3. The Managing Committee of the first respondent society consists of 13 members. Prior to Ext.P1 judgment, the Returning Officer had issued a notification dated 27.10.2006 proposing to hold the poll if necessary on 26.11.2006. That poll could not be held for the reason that it was stayed by this Court. Later by Ext.P1 judgment this Court invalidated the voters list WPC No.9124/2011 4 published by the Returning Officer and directed him to prepare a fresh voters' list including all those members who have been enrolled as members of the society upto 28.8.1998. This Court also directed that after preparing the voters' list, the Returning Officer shall complete the election process by notifying fresh dates for receipt of objections to the electoral roll, filing and withdrawal of nominations, date of election etc. by making suitable amendments to the notification already issued on 27.10.2006. Ext.P1 judgment of this Court has become final. However the elections were not held immediately thereafter. In the meanwhile the Kerala Co-operative Societies Act was extensively amended by Act 7 of 2010 with effect from 28.4.2010. Section 28A(1) of the Act as amended stipulates that notwithstanding anything contained in the Act, the rules or the bye-laws, there shall be reserved in the committee of every society, three out of the total seats for women members and one seat for a member belonging to the scheduled castes or the scheduled tribes. 5. The effect of the amendment introduced by Act 7 of 2010 to the Kerala Co-operative Societies Act, 1969 on election notifications pursuant to which elections were not held, was considered by a Division Bench of this Court in W.A. No.445 of 2011. I had by an WPC No.9124/2011 5 interim order dated 3.2.2011 passed in W.P.(C) No. 2940 of 2011 held that in view of the amendments introduced by Act 7 of 2010, the direction earlier issued by this Court to hold the poll cannot be given effect to for the reason that even if a poll is held, a Managing Committee as per the amended provisions of the Act cannot be constituted. That interim order was affirmed by the Division Bench in W.A. No.445 of 2011 wherein it was held that a demand for re-poll based on the election notification issued prior to the amendment of the Act cannot be accepted because any election after the amendment of the statute should be to constitute the Board of Directors in accordance with the amended provisions of the Act. Therefore, after 28.4.2010 the Returning Officer could not have held an election for the purpose of constituting the Managing Committee of the first respondent society based on the notification earlier issued. As per the earlier notification only one seat was reserved for women candidates. By virtue of the amendment introduced to the Act with effect from 28.4.2010 three seats have to be reserved for women. Therefore the Returning Officer was bound to publish the draft voters list, invite objections to it, finalise it and take further steps for the purpose of holding a poll. By Ext.P15 notification the WPC No.9124/2011 6 Returning Officer has taken steps in that regard. Such being the situation, I find no merit in the challenge to Ext.P15. As regards the voters list, the first respondent society has stated that wherever against the name of the member the word “expired” has been mentioned, the legal heirs had not furnished the information sought or nominated one among them to be admitted as a member of the society. The petitioners have not filed a reply affidavit disputing the statement made by the first respondent in that regard. It cannot therefore be held that merely for the reason that the word “expired” is mentioned against the names of about 129 persons in Ext.P29 voters list, the voters list cannot be said to be defective. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is dismissed. The third respondent shall issue a fresh election notification after complying with Ext.P1 judgment of this Court and hold the elections to constitute a Managing Committee in terms of the amended provisions of the Act, expeditiously. P.N.RAVINDRAN, (JUDGE) vps