IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 WP(C).No. 15857 of 2011(F) -------------------------- PETITIONER(S): --------------- 1. P.RAJASEKHARAN PILLAI, USHA BHAVANAM, MIDAPPALLY, PANMANA P.O., CHAVARA, KOLLAM. 2. G.HARIKUMAR, SREEMANGALATH, MIDAPPALLY, PANMANA P.O., CHAVARA, KOLLAM. 3. S.N.BINU KUMAR, SREE VILASOM, VADUTHALA, PANMANA P.O., PUTHENCHANTHA, KOLLAM. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. THE RETURNING OFFICER, K.M.M.L.LAPPA CONSTRUCTIONS & LABOUR CONTRACT CO-OP.SOCIETY LTD. NO.Q-1345, TITANIUM COMPLEX, SANKARAMANGALAM, CHAVARA, KOLLAM DIST - 691 583. (SENIOR INSPECTOR OF CO-OP.SOCIETIES, ARBITRATION & EXECUTION II, EXECUTION II, O/O THE ASST.REG. KARUNAGAPPALLY) 2. THE ASSISTANT REGISTRAR (GENERAL) OF CO-OP.SOCIETIES, KARUNAGAPPALLY, KOLLAM DISTRICT - 690 518. 3. K.M.M.L.LAPPA CONSTRUCTIONS AND LABOUR CONTRACT CO-OP.SOCIETY LTD.NO.Q-1345, TITANIUM COMPLEX, SANKARAMANGALAM, CHAVARA, KOLLAM DISTRICT - 691 583, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE BY GOVT. PLEADER SRI. P.M.MANOJ. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) NO.15857 of 2011 EXT.P1 COPY OF THE NOTICE DATED 4.8.2006 ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOLLAM. EXT.P2 A COPY OF THE ELECTION NOTIFICATION DATED 7.6.2011. EXT.P3 COPY OF THE PRELIMINARY VOTERS LIST DATED 30.5.2011 EXT.P4 COPY OF THE LIST CONTAINING THE NAMES OF PERSONS INCLUDED IN THE FINAL VOTERS LIST. EXT.P5 COPY OF THE ELECTION NOTIFICATION DATED 7.6.2011. RESPONDENT'S EXHIBITS: EXT.R3(a) TRUE COPY OF THE MINUTES OF THE MEETING OF THE THIRD RESPONDENT SOCIETY. //TRUE COPY// P.S. TO JUDGE. P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.15857 of 2011 ----------------------------------------- Dated this the 22nd June, 2011 JUDGMENT The petitioners are members of the managing committee of the third respondent, a co-operative society registered under the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as “the Act” for short). The managing committee of the third respondent society consisting of nine members that met on 8.5.2011 resolved to hold elections to elect a new managing committee on 8.7.2011 having regard to the fact that the term of the committee presently in office would expire on 11.7.2011. By that resolution the managing committee also resolved to request the Assistant Registrar of Co-operative Societies (General), Karunagappally to appoint a Returning Officer to hold the election. 2. In terms of the said resolution, the Assistant Registrar of Co-operative Societies (General), Karunagappally appointed the Senior Inspector of Co-operative Societies as the Returning Officer, by order passed on 19.5.2011. The Returning Officer thereafter issued Ext.P2 election notification. The intimation W.P(C) NO.15857/2011 -:2:- regarding the conduct of the election was sent by post individually to all the members. It is stated that on receipt of Ext.P2 notification wherein it is stated that the final voters list has already been published on the notice board of the society, the petitioners went over to the office of the society and were surprised to find that objections were invited to the preliminary voters list purported to have been published on 30.5.2011 and thereafter Ext.P4 final voters list containing the names of 104 members was published. This writ petition is filed contending that the procedure adopted by the Returning Officer regarding the conduct of the election is illegal for the reason that the final voters list was published even before the election notification was issued. Reliance is placed on rule 35(3)(a) and (b) of the Kerala Co- operative Societies Rules in support of the said contention. 3. The third respondent society has filed a counter affidavit contending inter alia that though Ext.P3 draft voters list was published on 30.5.2011 on the notice board of the society and objections were invited, the petitioners did not object, that objections were received from nine persons whose names did not figure in the list and that after considering the objections, the final W.P(C) NO.15857/2011 -:3:- voters list was published on 7.6.2011. It is contended that the petitioners did not object to the draft voters list and therefore they cannot object to the validity of the final list. It is also contended that the writ petition, at the instance of the petitioners, is not maintainable and that if the petitioners are aggrieved by the result of the election their remedy lies in filing an appropriate petition challenging the election. 4. The petitioners have filed a reply affidavit contending that the preliminary voters list should have been published only after the election notification was issued and an opportunity should have been given to the persons included in the draft voters list prepared and handed over by the committee to object to the preliminary voters list and that it should have been finalised only thereafter. It is contended that the publication of a preliminary voters list and its finalisation even before the intimation regarding the election is given to the members of the society is illegal. 5. I heard Sri.V.G.Arun, learned counsel appearing for the petitioners, Sri.P.M.Manoj, learned Government Pleader appearing for respondents 1 and 2 and Sri.K.Ramakumar, learned Senior Advocate appearing for the third respondent. I have also gone W.P(C) NO.15857/2011 -:4:- through the pleadings and the materials on record. Sri.V.G.Arun, learned counsel for the petitioner, contended with reference to clause (b) of sub-rule (3) of rule 35 of the Kerala Co-operative Societies Rules, 1969 (the Rules for short) that the Returning Officer could have published the draft voters list only after the intimation regarding election is given and that the final list of voters referred to in clause (a) to sub-rule (3) of rule 35 is the final list of eligible voters prepared after giving the members of the society an opportunity to object to the draft voters list. The learned counsel also contended that though clause (b) of sub-rule (3) of rule 35 occurs after clause (a) the procedure prescribed in clause (b) regarding publication of the final voters list could have been done only after the election notification was issued and that having not been done, the procedure adopted by the Returning Officer is illegal. Per contra, Sri.K.Ramakumar, learned Senior Advocate appearing for the third respondent, contended that unlike rule 35A of the Rules, clause (a) of sub-rule (3) of rule 35 does not stipulate that the election notification shall contain the date on which and the place at which the preliminary list of members qualified to vote shall be published or the dates between W.P(C) NO.15857/2011 -:5:- which objections shall be filed and the date on which, the hours between which and the place at which the objections, if any shall be scrutinised and in the absence of any such stipulation in the rules, this Court cannot read into clause (a) of sub-rule (3) of rule 35 a requirement to the effect that the preliminary voters list shall be published and the objections invited only at a stage after the election notification is issued to the members. The learned Senior Advocate contended that in the light of the provisions contained in sub-rule (3) of rule 35, the Returning Officer was right in finalising the voters list before the issuance of the intimation regarding the election. 6. Clauses (a) and (b) of sub-rule (3) of rule 35 read as follows:- “35. Procedure regarding conduct of Election to the Committee of Societies:- The election of the members of the committee of a Society (which does not come under sub- section (1) of section 28(B) of the Act) shall be conducted in the following manner. x x x x (3) (a) The Returning Officer shall give intimation regarding the details of election W.P(C) NO.15857/2011 -:6:- of the members of the Committee to all members included in the final list of the voters, to vote at the election of the committee, either in person and obtain their full signature in token of having received the same, or by post under certificate of posting or by publishing such details in two vernacular dailies having wide circulation in the area. A copy of the intimation shall also be affixed on the notice board of the Head Office and the branches, if any, of the society. The intimation shall contain the following particulars:- (i) The number of vacancies to be filled up by election; (ii) Any area or constituency that is specified in the bye-laws from which members are to be elected; (iii) The date on which, the place at which and the hours between which nomination paper shall be filed by the contesting candidate or by his proposer or seconder such dates not being less than seven clear days before the dates fixed for the election; (iv) the date and hour when the nomination paper will be scrutinised; (v) the date on which, the place at which and the hours between which, polling W.P(C) NO.15857/2011 -:7:- will take place. (b) The committee in office shall prepare a list of members qualified to vote at the election in accordance with the provisions of the Act, these Rules and Bye-laws as stood on a date 30 days prior to the date fixed for the poll and supply the same, to the Returning Officer. The Returning Officer shall publish copies of the list by affixing them to the notice Board at the Head Office of the society and its branches, if any, not less than fifteen days prior to the date fixed for election inviting objections, if any, in the matter, within three days of publication. The list shall specify the admission number, name of the member, name of the Father or Husband and the address of such member. After considering the objections, if any, the Returning Officer shall publish a final list of eligible voters on the Notice Board of the society and in its branches, if any, not less than then days prior to the date fixed for the poll. A copy of such list shall be supplied by the society to any member on payment of such fees as may be prescribed by the committee.” Sub-rule (3) of rule 35A of the Rules reads as follows:- “35A. Procedure regarding conduct W.P(C) NO.15857/2011 -:8:- of election to the committee of Societies by the State Co-operative Election Commission:- The election of the members to the committee of Societies by the State Co- operative Election Commission shall be conducted in the following manner. x x x x (3) The State Election Commission shall notify the details of election to the committee of the society, in two vernacular dailies having wide circulation in the area. A copy of the information shall also be affixed on the Notice Board of the head office and the branches, if any, of the Society. The notification shall contain the following particulars:- (i) The number of vacancies to be filled up by election; (ii) Any area or constituency that is specified in the bye-laws from which members are to be elected; (iii) The date on which and the place at which the preliminary notification of the list of members qualified to vote as the voter shall be published; (iv) The dates between which objections shall be filed and the date on which, the hours between which, and the W.P(C) NO.15857/2011 -:9:- place at which, the objections, if any, shall be scrutinized; (v) the date on which, and the place at which, the final voters list shall be published; (vi) The date on which, the place at which, and hours between which nomination paper shall be filed by the contesting candidate or by his proposer or seconder; (vii) The date and hour when the nomination paper will be scrutinised; (viii) The date on which, the place at which and the hours between which, polling if necessary will take place. From a comparison of the two rules it is evident that while in the case of elections conducted by the State Co-operative Election Commission, the election notification should contain the date on which and the place at which the preliminary list of members qualified to vote shall be published and the dates between which objections shall be filed and the date on which, the hours between which, and the place at which the objections, if any, shall be scrutinised, in the case of elections conducted by Returning Officers appointed by the Registrar, the rule does not stipulate W.P(C) NO.15857/2011 -:10:- that the preparation of the final voters list should be undertaken only after the election notification is issued to the members. In the context and setting of rule 35, I am persuaded to hold that if as in the instant case, the Returning Officer publishes the draft voters list and finalises it after giving the members of the society an opportunity to object to the draft voters list even before he issues the intimation regarding election, the procedure adopted by the Returning Officer cannot be said to be contrary to the rules. In that view of the matter I am of the opinion that no interference is called for with the election notification now issued. 7. I had by order passed on 14.6.2011 stayed all further proceedings pursuant to Ext.P2 election notification. In the view that I have now taken it will be open to the Returning Officer to proceed from the stage at which the election was stayed by this Court. As per Ext.P2 notification the last date for submission of nominations was 20.6.2011, the date fixed for scrutiny of nominations was 21.6.2011 and the last date for withdrawal of nominations was 22.6.2011. The poll was scheduled to be held on 8.7.2011. This Court passed an interim order on 14.6.2011 staying the election. Necessarily therefore the Returning Officer W.P(C) NO.15857/2011 -:11:- will have to issue a fresh notification stipulating the last date for submission of nominations, the date for scrutiny of nominations and the date for withdrawal of applications and also the date of poll. I make it clear that I have not expressed a final opinion about the validity of the voters list and that the said question is left open to be decided, if raised, in other appropriate proceedings. I accordingly hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed with the above observations. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.15857 of 2011 ---------------------------- JUDGMENT 22nd June, 2011