IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 20TH MARCH 2007 / 29TH PHALGUNA 1928 WP(C).No. 30057 of 2006(C) ------------------------------------------ PETITIONERS: --------------------- 1. K.A.KALAM, CHIRAYILPUTHEN VEEDU, ERUVA, KAYAMKULAM. 2. P.K.KOCHUKUNJU, SHEEJA MANZIL, KAYAMKULAM. 3. JOSEPH JOHN, S/O.JOHN, KANNAYIL HOUSE, BANK ROAD, KAYAMKULAM. BY ADV. SRI.P.V.BABY SMT.RINNEY STEPHEN SRI.A.N.SANTHOSH SRI.R.KIRAN RESPONDENTS: ------------------------- 1. THE ALLEPPEY CO-OPERATIVE SPINNING MILLS LTD (ST)-8, KAREELAKULANGARA P.O., KAYAMKULAM, ALAPPUZHA DISTRICT, REPRESENTED BY ITS GENERAL MANAGER. 2. THE DIRECTOR, KERALA HANDLOOM AND TEXTILES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE RETURNING OFFICER, THE ALLEPPEY CO-OPERATIVE SPINNING MILLS LTD. (ST)-8, DEPUTY REGISTRAR, DISTRICT INDUSTRIES CENTRE, ALAPPUZHA. BY ADV. SRI.K.SASIKUMAR BY SR.GOVERNMENT PLEADER SRI.P.N.SANTHOSH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/02/2007 ALONG WITH WPC NO. 30748 OF 2006, THE COURT ON 20/03/2007 DELIVERED THE FOLLOWING: WPC.NO.30057/2006 C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF NOTIFICATION DTD. 27/10/2006 ISSUED BY THE 3RD RESPONDENT. EXT.P2: COPY OF THE PRELIMINARY VOTERS LIST OF THE 1ST RESPONDENT PUBLISHED BY THE 3RD RESPONDENT. EXT.P3: COPY OF THE OBJECTION DTD. 11/11/2006 SUBMITTED BY THE 1ST PETITIONER TO THE 3RD RESPONDENT. EXT.P4: COPY OF THE OBJECTION DTD. 11/11/2006 SUBMITTED BY THE 2ND PETITIONER TO THE 3RD RESPONDENT. EXT.P5: COPY OF THE OBJECTION DTD. 11/11/2006 SUBMITTED BY THE 3RD PETITIONER TO THE 3RD RESPONDENT. EXT.P6: COPY OF THE RECEIPT DTD. 11/11/2006 ISSUED BY THE 1ST RESPONDENT. EXT.P7: COPY OF THE RECEIPT DTD. 11/11/2006 ISSUED BY THE 1ST RESPONDENT. EXT.P8: COPY OF THE RECEIPT DTD. 11/11/2006 ISSUED BY THE 1ST RESPONDENT. EXT.P9: COPY OF THE NEWS ITEM APPEARED IN THE MALAYALAM MANORAMA DAILY DTD. 11/11/2006. 1ST RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE PROCEEDINGS OF THE JOINT REGISTRAR, ALAPPUZHA WITH THE DEFECTS/OBJECTION. EXT.R1(B): COPY OF THE PROCEEDINGS DTD. 1/04/1988 ISSUED BY THE RETURNING OFFICER OF THE 1ST RESPONDENT SOCIETY FOR THE ELECTION HELD ON 4/04/1988. EXT.R1(C): COPY OF THE ADMISSION REGISTER IN RESPECT OF CERTAIN MEMBER OF THE 1ST RESPONDENT SOCIETY. /TRUE COPY/ KSS S.SIRI JAGAN, J. ================================= W.P.(C).No.30057 & 30748 of 2006 ================================== Dated this the 20th day of March, 2007 J U D G M E N T In these two writ petitions, the issue raised by the petitioners is the same, but the grounds on which the petitioners have set up their respective cases are different. The issue is whether the voters list published by the 3rd respondent- Returning Officer appointed by the administrator of the Alleppey Co-operative Spinning Mills Ltd. (ST)- 8, the 1st respondent in W.P(C).No.30057/2006 and the 2nd respondent in the other (hereinafter referred to as 'the Society') for election to the society is legally sustainable and whether the election notified on 26-11-2006 can be validly conducted on the basis of such an electoral roll/voters list. In W.P(C).No.30057/2006 the complaint is that eligible members of the society are left out from the voters' list and in W.P(C). No.30748/2006, the complaint is that ineligible w.p.c.30057/06 & cc. 2 persons who have not been validly enrolled have been included in the list. Ever since the inception of the Society on 20.2.1982, except for the period from 1988 to 1992, the society was administered either by the nominated committee at the time of formation of the Society or the administrative committee appointed by the Government. It so happened that the initially nominated committee, subsequent administrative committees and the elected committee in between all had enrolled members in the society. However, nobody challenged such enrolment of the members in the society by the administrative committees and as a result, those members continued and even now continues to be members of the society, enjoying the facilities and privileges provided by the society to its members, although they never had occasion to be included as voters, since election never took place after the first election in 1988. The petitioners in W.P(C) No.30057/2006 contend that although this Court in a Full Bench decision, w.p.c.30057/06 & cc. 3 which was later affirmed by the Supreme Court held that the administrator or the administrative committee appointed by the Government does not have power to enrol members, in view of the later Full Bench decision in Cherthala Agrl. R.D. Bank v. Joint Registrar, 2000 (1) KLT 730 (F.B), all the members who were enrolled prior to 28-8-1998, which is the date of the decision of the Full Bench of this Court in Hassan v. Joint Registrar of Co- operative Societies, [1988 (2) KLT 746], which held that the administrator does not have power to enrol new members, should be included in the voters list prepared for the present election. In W.P(C) No.30748/2006, the petitioners submit that the members bearing membership nos. 163 to 461 enrolled by the administrative committee, which was in charge of the society from 12-10-1987 to 12-4-1988 should be excluded from the voters list, since the administrative committee did not have powers to enrol them. 2. The background in which these disputes w.p.c.30057/06 & cc. 4 arose is this. The society was registered in the year 1982 and the first nominated committee was in charge for the period from 22-2-1982 to 12-10-1987. That committee enrolled 99 individuals and 63 societies as members of the society making a total membership of 162. From 12-10-1987 to 12-4-1988, the society was under the administration of an administrative committee appointed by the Government which also enrolled 298 members comprised of 44 societies and 254 individuals. For the period from 12-4-1988 to 12-2-1992, the society was under the control of an elected committee which enrolled 12 societies as members. Although for the period from 12-2-1992 to 20-12- 1995 also administrative committee was in charge, that committee did not enrol any members in the society. Another administrative committee took charge and continued to administer the society from 20-12-1995 to 24-12-1996. This committee enrolled 736 additional members comprised of 41 societies and 695 individuals. Later on, another w.p.c.30057/06 & cc. 5 administrative committee took charge and was in office for the period from 24-5-1996 to 28-5-2001. This committee also enrolled members in the society totalling 1338 comprised of 51 societies and 1287 individuals. From 28-5-2001 onwards, another administrative committee is in charge, which did not enrol any members in the society, presumably because of the Full Bench decision of this Court in Hassan's case (supra) which was confirmed by the Supreme Court in Joint registrar of Co-operative Societies v. T.A. Kuttappan, 2000 (2) KLT 480 (SC). The administrative committee decided to conduct election to the managing committee of the society and accordingly, the 3rd respondent was appointed as the Returning Officer, who published Ext. P1 election notification fixing the date of election as 26-11-2006 and published Ext. P2 voters list comprised of only 473 voters. This appears to be those members who were enrolled up to 12-2- 1992 when the only elected committee vacated the office. Ext. P1 election notification and Ext. P2 w.p.c.30057/06 & cc. 6 voters list are under challenge in these writ petitions. As I have already mentioned, in W.P(C) No. 30057/2006, the petitioners pray that all those members who were admitted as members up to 28-8- 1998 should be included in the voters list and election conducted in accordance with such revised voters list. In the other writ petition, the petitioners want to quash the election notification and electoral list and to redo the election process by excluding the members holding member nos. 163 to 461 who were enrolled by the administrative committee in office during the period from 12-10- 1987 to 12-4-1988 from the present voters list comprised of 473 members. 3. Needless to say, although the latent purpose behind both these writ petitions appears to be the same, the prayers are conflicting. This I say because, counsel appearing for the petitioners in both these writ petitions submitted before me that they are going together in this litigation. Apparently, their intention is that if w.p.c.30057/06 & cc. 7 one writ petition fails, the other should succeed, in which case the purpose of these writ petitions would be achieved either way, which is presumably political and it is common knowledge that political considerations have permeated the election process in almost all co-operative societies in Kerala which is gaining dangerous proportions these days, even thwarting the democratic nature of the elections to the societies. 4. The contentions of the petitioner in W.P(C) No. 30057/2006 are as follows. Formerly, the law prevailing on the question of powers of the administrator to enrol members in a society, which is under the administration of an administrator or administrative committee was in the affirmative, i.e. the administrator or the Administrative Committee had the power to enrol members. That position changed later, and ultimately the law on the subject was settled by the Full Bench of this Court in Hassan's case (Supra). That decision was rendered on 28-8-1998 and principles stated w.p.c.30057/06 & cc. 8 therein was later confirmed by the Supreme Court in Kuttappan's case (supra). In the decision of the later Full Bench in Cherthala Agrl. R.D. Bank's case (supra) it was held that the decision in Hassan's case is only prospective in effect and therefore all members enrolled prior to 28-8-1998, namely, the date of the decision in Hassan's case should be considered as validly enrolled members. Further, the petitioners would contend that all along, these members who were enrolled even by the administrative committee, continued to enjoy all the privileges and benefits available to the members of the society and nobody ever objected to their continuance as members of the society and therefore they are still continuing as members of the society. Hence, going by Sections 16, 17, 19, 20 and 27 of the Kerala Co-operative Societies Act and Rules 27 and 28 of the Kerala Co-operative Societies Rules, which relate to enrolling of members of the society and cancellation of such membership, in so far as all those procedure w.p.c.30057/06 & cc. 9 prescribed in the Act and Rules have been followed in the matter of enrolment of those members and they have not been validly removed from membership as provided under the Rules, they cannot now be denied the right to vote in the election to the managing committee of the society on the ground that they are not validly enrolled members. Of course, the petitioners would concede that in view of the Full Bench decision in Cherthala Agrl. R.D. Bank's case, only those members who have been so enrolled by the Administrator or Administrative Committee till 28-8-1998, namely, the date of the decision in Hassan's case, only can be allowed to vote in the election. The petitioners have got a further contention that Ext. P2 voters list prepared by the 3rd respondent-Returning Officer, does not satisfy the mandatory provisions of Rule 35(3)(b) in so far as the particulars prescribed in the said Rule have not been incorporated therein. In this connection, they would rely on the decision of this Court in Thankappan & others, v. Co- w.p.c.30057/06 & cc. 10 operative Tribunal and others, 1979 KLT 528, which lays down that every sub-rule mentioned in Rule 35 is mandatory and violation of any one provision in Rule 35 would vitiate the election and make it void. The allegation of the petitioners is that Ext. P2 voters list does not contain the fathers' name of the voters which is a mandatory requirement of Rule 35(3)(b). They also refer to another decision of this Court in Devassy v. Asst. Registrar of Co-operative Societies, 1976 KLT 40 wherein also it has been held that a proper electoral roll is fundamental factor before the election is actually held and if the same has been prepared in violation of Rule 35, this Court can step in even before the election is actually conducted and prevent the election being held on the imperfect electoral rolls, exercising jurisdiction under Article 226 of the Constitution of India. 5. In answer to the same, counsel for the 3rd respondent-Returning Officer, with the help of the w.p.c.30057/06 & cc. 11 counter affidavit, particularly, Ext. R1(a) audit certificate of the Registrar of the Co-operative Societies (Audit), which pointed out that in view of Kuttappan's case (supra), the members enrolled by administrative committees are not entitled to be included in the voters' list and contended that the Returning Officer cannot be found fault with for not including those members who have been enrolled by administrative committees which were holding charge of the society subsequent to the date when the elected committee went out of the office on 12-2-1992. Since the last elected committee was in power only till that date, the Returning Officer has included only those members who were on the rolls of members of the society up to that date in the voters' list, which, according to 3rd respondent, is perfectly valid and proper in view of the decision of the Full Bench in Hassan's case as confirmed by the Supreme Court in Kuttappan's case. 6. Learned counsel for the 3rd respondent as w.p.c.30057/06 & cc. 12 well as the learned Government Pleader appearing for respondents 1 and 2 would raise a contention that in any event, since the process of election has already been set in motion, the only remedy available to the petitioners now is to file an election petition after the election is over and they cannot canvass these issues in a writ petition under Article 226 of the Constitution of India, which is the settled law on the subject as laid down by decisions of this Court and the Supreme Court of India. Although this contention is a formidable one, which goes to the root of the writ petitions themselves, a decision in respect thereof against the petitioners would entail dismissal of the writ petition without going into the merits of the contentions of the petitioners. But in view of the peculiar circumstances of this case, even if I hold the question of law as to the maintainability of the writ petitions against the petitioners, I am inclined to mould the relief appropriately in favour of the petitioners for w.p.c.30057/06 & cc. 13 reasons to be stated hereinafter. Therefore, I intend to go into the merits of the case as well as the question of law on the maintainability of the writ petitions. In such circumstance, I consider that first I should consider the merits of the case on facts. 7. The petitioners in W.P(C) No. 30748/2006 have, in the course of arguments, supplied to me in a tabular form, the periods during which various committees were administering the society and the number of persons enrolled by by them as members during their tenure. Although there is a slight mistake of one number in the same, the parties to the writ petitions generally agree that the information contained therein is substantially correct. Therefore, I shall re-produce the same here for convenience. The same reads thus: Chairman Period Number & Nature of Membership Share holders Serial number Societies & Individuals Thachady Prabhakaran 22.02.1982 to 12.10.1987 99 Individuals 63 Societies 162 1 to 99 1 to 63 w.p.c.30057/06 & cc. 14 Chairman Period Number & Nature of Membership Share holders Serial number Societies & Individuals Babu Rajendran Administrative Committee 12.10.1987 to 12.04.1988 44 Societies 254 Individuals 298 100 to 143 64 to 317 M.R. Rajasekharan (Elected Committee) 12.04.1988 to 12.02.1992 12 Societies 144 to 155 (Administra- tive Committee) 12.02.1992 to 20.12.1995 No Enrolment Thachady Prabhakaran (Administra- tive Committee) 20.12.1995 to 24.12.1996 41 Societies 695 Individuals 736 156 to 196 318 to 1012 G. Sudhakaran (Administrativ e Committee) 20.05.1996 to 28.5.2001 51 Societies 1287 Individuals 1338 197 to 247 1013 to 2299 D. Vijayakumar (Administrativ e Committee) 28.5.2001 No Enrolment From the same, it is crystal clear that as on today, there are 2547 members in the society whose membership has not been questioned by anybody through the procedure prescribed by the Kerala Co- operative Societies Act and Rules nor has their membership been cancelled in accordance with the w.p.c.30057/06 & cc. 15 Act and Rules. As such, they continue to enjoy the privileges and benefits of their membership even as on today. It is not disputed before me that prior to the Full Bench decision in Hassan's case, the law on the powers of the administrator or Administrative Committee to enrol members in a society was in a fluid state and it had been finally crystalised and settled only by the decision in Hassan's case on 28-8-1998. 8. Although it is settled law that the High Court does not have the power of prospective overruling, which power only vests with the Supreme Court (See the decision of a Division Bench of this Court in Porinchu v. Joint Registrar, 2004 (1) KLT 281), a Full Bench of this Court in Cherthala Agrl. R.D. Bank's case, considered the question as to whether regardless of the fact that the High Court does not have power of prospective overruling, whether in a particular set of facts, the High Court can mould the reliefs to suit a peculiar situation and held thus in paragraphs 12, w.p.c.30057/06 & cc. 16 13, 20 and 21: “12. We are of the view it will be highly unjust to expel members who were enrolled years back by administrators at a time this Court had interpreted the law that the administrators have such power. Especially, it is so as there was no challenge against their membership all these years. We also agree with the petitioners that such action would be against the interest of the societies and also against public interest. But the question raised is whether this Court has the power to mould the relief in such a manner. 13. In L.C.Golak Nath & Ors. v. State of Punjab & Anr . , AIR 1967 SC 1643, the Supreme Court applied the doctrine of prospective over-ruling. Since the above doctrine was being applied for the first time in this country, the Supreme Court laid down the following propositions: “(51). As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions:- (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest Court of the Country, i.e, the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the Courts in India; (3) the scope of the retrospective operation of the law declared by the Supreme Court superseding its “earlier decisions” is lift to its discretion to be moulded in accordance with the justice of the cause or matter before it.” It is contended before us that this Court has the power to apply the doctrine of prospective overruling in the present case. But there are several decisions of the Supreme Court where relief was so moulded not to affect past transactions in public interest. In Managing Director, ECIL, Hyderabad, etc. v. B.Karunakar, etc. AIR 1994 SC 1074 the question whether the law laid down in Union of India v. Mohd. Ramzan Khan, AIR 1991 SC 471, should be made only prospective in operation was considered and it was observed as follows: w.p.c.30057/06 & cc. 17 “....As pointed out above, in view of the unsettled position of the law on the subject, the authorities/managements all over the country had proceeded on the basis that there was no need to furnish a copy if the report of the Inquiry Officer to the delinquent employee, and innumerable employees have been punished without giving them the copies of the reports. In some of the cases, the orders of punishment have long since become final while other cases are pending in courts at different stages. In many of the cases, the misconduct has been grave and in others the denial on the part of the management to furnish the report would ultimately prove to be no more than a technical mistake. To re-open all the disciplinary proceedings now would result in grave prejudice to administration which will far outweigh the benefit to the employees concerned. Both administrative reality and public interests do not therefore, require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khan's case (supra) without furnishing the report of the Inquiry Officer should be disturbed and the disciplinary proceedings which gave rise to the said orders should be reopened on that account.” xxx xxx xxx xxx xxx 20. In the present case there is no dispute regarding the appointment of the administrators, but the dispute relates to their exercise of certain jurisdiction which they had in them according to the interpretation of S.33(4) by the binding decision of this Court during the relevant period. In AIR 1992 SC 90, Pritam Pal. v. High Court of Madhya Pradesh, while considering the power of the High Court as a Court of record it was observed that the power is inherent, elastic, unfettered and not subjected to any limit. As observed by the Supreme Court in AIR 1980 SC page 1037, it is open to this Court while exercising flexible power under Art.226 of the Constitution to take such a view as public interest dictates and equity projects. 21. According to us, if we have to hold that in the light of the declaration of law in 1998 (2) KLT 746 all members enrolled by the administrators from the year 1981 onwards or even earlier period are disqualified, it would certainly end up the w.p.c.30057/06 & cc. 18 functioning of the societies in chaos. Such an action will be totally against public interest. According to us, this Court will be fully justified in holding that the decision will have only prospective effect. We make it clear that parties to the Original Petitions which were subject matter of the Full Bench decision are bound by the judgment.” Going by the said decision, the decision in Hassan's case would have effect in practice, in respect of the co-operative societies in Kerala, only with effect from the date of that decision, namely, 28-8-1998. Therefore, despite the contention of the respondents to the effect that since the High Court has no power of prospective overruling, the members enrolled by the administrative committees cannot be held to be validly admitted as members, I am of opinion that in view of the fact that the Full Bench decision has become final and it has been accepted that in co-operative societies in Kerala, the memberships of the members who have been enrolled by administrators/administrative committees up to 28- 8-1998 cannot now be held to be invalid. It follows therefrom that all those members who have been enrolled and are in the list of members of the w.p.c.30057/06 & cc. 19 society as on 28.8.1998 are entitled to be included in the voters list and therefore the impugned voters' list is liable to be set aside. 9. Having held that the voters list for the purpose of the present election of the society in these writ petitions are to include members who were enrolled up to 28-8-1998, I shall now proceed to examine the question as to whether these writ petitions are maintainable and this Court can interfere in the election process as the election process has already been set in motion. 10. In the decision of Gopalan v. Joint Registrar of Co-operative Societies reported in 1985 KLT 446, a learned Single Judge of this court examined the question as to whether, in spite of the existence of a statutory remedy by way of an election petition, the election process can be interfered with by this court under Article 226 of the Constitution of India, when the process itself is vitiated. In that decision in paragraphs 25 and 28, the learned Single Judge held as follows:- w.p.c.30057/06 & cc. 20 “25. Having come to the conclusion that the election is vitiated, the further question is whether the discretion of the court should be exercised by interfering with such an illegal election for