IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 WP(C).No. 57 of 2009(F) ----------------------- PETITIONER(S): --------------- BHASKARA PANICKER M.A.MUDEETHRA HOUSE, AYROOR, THIRUVALLA, PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.N.MOHANAN RESPONDENT(S): --------------- 1. RETURNING OFFICER TO KERALA STATE CO-OPERATIVE HOUSING FEDERATION LTD.NO.4330, JUDGES AVENUR, KALOOR, ERNAKULAM. 2. THIRUVALLA CO-OPERATIVE HOUSE CONSTRUCTION SOCIETY LTD NO.A.302,REPRESENTED BY SECRETARY, THIRUVALLA 689101. 3. KERALA STATE CO-OPERATIVE HOUSING FEDERATION LTD NO.4330, REPRESENTED BY MANAGING DIRECTOR, JUDGES AVENUE, KALOOR, ERNAKULAM. ADDL.4.SRI.JAYAVARMA, DIRECTOR, MALLAPPALY HOUSING CO-OPERATIVE SOCIETY, MALLAPPALY, A.694, PATHANAMTHITTA, RESIDING AT PARIPPAM, KOTTUKOYIKKAL, EZHUMATTOOR P.O. (ADDL.R4 IS IMPLEADED VIDE ORDER DATED 8.1.09 ON I.A.NO.202/09) R1 BY GOVT. PELADER SRI.K.C.SANTHOSH KUMAR R2 BY ADV. SRI.SURIN GEORGE IPE R3 BY ADV. SRI.HARIKRISHNAN RAVINDRAN R4 BY ADV. SRI.D.SOMASUNDARAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.57 OF 2009 ------------------------------------------- Dated this the 8th day of January, 2009 JUDGMENT 1. The third respondent, Kerala State Co-operative Housing Federation, is an apex society. The second respondent, a primary housing co-operative society, sent the petitioner as its nominee, to contest to be on the committee of the third respondent. The Returning Officer rejected the nomination of the petitioner on the ground that the second respondent is in default. Rule 46(e) of the Kerala Co-operative Societies Rules, 1969 is quoted in the impugned order in support of the rejection. That decision is under challenge. 2. In terms of Section 21 (2) of the Kerala Co-operative Societies Act, 1969 and having regard to the powers, duties, rights and liabilities of the nominee of a primary society in the apex society, it goes without saying that it is a primary society which is a member of the apex society and the role of nominee and his continuance in such office, depends upon WPC.57/09 Page numbers the volition of the society which nominates him. In that context, it is essentially, the nomination on behalf of the second respondent, that has been rejected by the impugned decision. But, the second respondent has not challenged that decision till now. 3. The controversy based on the documentary evidence placed on record ultimately boils down to the necessity for an adjudication as to whether the second respondent was in default in terms of Rule 46(e) or in terms of Rule 44 of the Rules, thereby depriving itself of the right to submit nomination. Rule 44 provides inter alia the prescription that a member should not be in default for a period of three months, to the society, the committee of which, is being elected. The provision in Rule 46 (3) prescribes a default period of six months. If I were to calculate the amounts that would be outstanding from the second respondent to the apex society, going by the contents of Ext.R3(a) and R3(b) referred to by the counsel on either side, I am sure that I will be overstepping the bounds of Article 226 of the WPC.57/09 Page numbers Constitution and entering on a fact finding adjudication, which is just not permissible. 4.The authority of the Returning Officer to decide the issue is not under challenge. The question raised is only as to the correctness of the decision. As noticed, that depends upon adjudication and decision on mixed questions of law and fact, to be rendered on sifting the evidence. The petitioner or the second respondent, as the case may be, if advised, would have appropriate remedy by way of arbitration when election results are declared. The 4th respondent appears to be the sole candidate whose nomination has been accepted qua the second respondent's nominee, the petitioner. 5. For the aforesaid reasons, leaving open all contentions, this writ petition is dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.