IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 WP(C).No. 5819 of 2010(B) --------------------------------------- PETITIONER(S): ------------------------- 1. SHOBANA.K, MEMBER NO.8, PERINTHALAMANNA, TALUK CO-OPERATIVE EDUCATIONAL SOCIETY LTD.NO. M.358, PERINTHALAMANNA, MALAPPURAM. 2. SATHEERATNAM.M., MEMBER NO.32, PERINTHALMANNA TALUK CO-OPERATIVE EDUCATIONAL SOCIETY LTD.NO.M.358, PERINTHALMANNA, MALAPPURAM. BY ADVS. MR.B.S.SWATHY KUMAR, SMT.P.A.ANITHA. RESPONDENT(S): --------------------------- 1. THE RETURNING OFFICER, PERINTHALMANNA TALUK CO-OPERATIVE EDUCATIONAL SOCIETY LTD. NO.M.358, PERINTHALMANNA,MALAPPURAM/UNIT INSPECTOR MELAYOTTOOR, OFFICE OF THE ASSISTANT REGISTRAR(G) PERINTHALMANNA. 2. PERINTHALMANNA TALUK CO-OPERATIVE EDUCATIONAL SOCEITY LTD.NO.M.358, PERINTHALMANNA, MALAPPURAM, REPRESENTED BY ITS SECRETARY. R1 BY GOVERNMENT PLEADER MR. K.S.MUHAMMED HASHIM R2 BY ADVS. MR.V.V.SURENDRAN, MR.P.A.HARISH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.5819/2010 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ELECTION NOTIFICATION NO.61/2010 DTD. 28/01/2010 OF THE 2ND RESPONDENT SOCIETY. P2: COPY OF THE OBJECTION FILED BY THE PETITIONERS AND OTHERS DTD. 13/02/2010 TOTHE 1ST RESPONDENT. P3: COPY OF THE PETITION FILED BY THE PETITIONERS AND OTHERS DTD. 15/02/2010 TO THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE ORDER OF THE JOINT REGISTRAR DTD. 19/11/2008. /TRUE COPY/ P.S.TO JUDGE Kss K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO:5819 OF 2010 B ----------------------------------------------------------- Dated this the 3rd March, 2010. JUDGMENT The petitioners are members of the second respondent society. The first petitioner is also a former member of the Board of Directors. The petitioners have approached this Court seeking the following reliefs:- i) Issue a writ of mandamus or any other appropriate writ,order or direction commanding the 1st respondent to arrange a separate booth for the persons mentioned in Ext.P2 included in the final voters list and to collect the votes cast by them in a separate ballot box in the election to be held as per Ext.P1 election notification; ii) to declare that it is highly essential in the interest of law, justice, equity and fairness that the votes of the persons mentioned in Ext.P2 and included in the final voters list is kept in a separate ballot box and that the 1st respondent is legally bound to do so; iii) issue a writ of mandamus or any other appropriate writ, order or direction to the 1st respondent to ensure that the persons mentioned in Ext.P2 and included in the final voters list cast their votes separately in a separate ballot box; WPC 5819/2010 2 iv) such other appropriate writ order or direction as this Honourable Court may deem fit and proper to meet the ends of justice.” 2. The first respondent has issued an election notification No: 61/07 dated 28.1.2010 scheduling an election on 7.3.2010 from 9 a.m. To 2 p.m at the Perinthalmanna Co-operative College. The notification is Ext.P1 and the same is for election of the managing committee members of the second respopndent-society. 3. Consequent to the election notification a draft voters list was published by the first respondent. The petitioners objected to the draft voters list pointing out that it contained the names of 115 persons who were ineligible to be members of the society. According to the petitioners, due to political influence final voters list has been published without removing the said persons from the list. The petitioners themselves admit that one person whose name has been mentioned as serial No: 75 with membership No: 4, Abdul Jabar is eligible and that the inclusion of his name in Ext.P2 was a mistake. Therefore, they submitted Ext.P3 requesting that his name be retained in the final voters list. The first respondent, after considering Ext.P2 found that 22 persons from among the 115 persons listed therein were residing outside the area of operation WPC 5819/2010 3 of the second respondent. Therefore, their names were removed from the voters list. However, with respect to the rest of the names contained in Ext.P2 the Returning Officer found that they were persons who were eligible to become members of the society. The petitioners challenge the inclusion of the said persons in the final voters list. The petitioners also pray for an interim order directing the first respondent to collect the votes of the 92 persons whose eligibility is under dispute in a separate ballot box. 4. The petition is opposed by the learned Govt. Pleader who submits that the complaint in Ext.P2 was considered by the first respondent and that since some of the persons listed in Ext.P2 were found to be ineligible their names were removed while the rest of the persons who were found to be eligible were retained in the final voters list. The learned Govt. Pleader points out that the objection to the inclusion of the disputed persons mentioned in Ext.P2 is that they are employed. He refers to Clause v of the byelaws of the society to submit that being employed is not a disqualification stipulated by the byelaws. Therefore, it is contended that there are no grounds to exclude the said persons from the voters list. Since the contention of the petitioners that the said persons are liable to WPC 5819/2010 4 be excluded is without any basis it is submitted that there are no grounds to collect the votes of the said persons in a separate ballot box. 5. The counsel for the petitioners on the other hand disputes the stipulations contained in the byelaws. He points out that in fact a proposal for amending the byelaws permitting members who subsequently became employed to continue as members, had been passed by the Society on 12.3.2006. But, the said amendment was rejected by the Joint Registrar as per his proceedings dated 12.6.2006. In view of the rejection of the amendment that was sought to be incorporated he contends that the byelaws produced by the learned Govt. Pleader cannot be accepted as showing the correct position. 6. I have heard Shri. B.S.Swathi Kumar who appears for the petitioners, Mr. P.A. Harish who appears for the first respondent as well as the learned Govt. Pleader Shri. Muhammed Hashim. I have also considered the rival contentions anxiously . 7. The question that arises for consideration is whether the 92 persons whose names have been included in the final voters list by the first respondent are persons who are ineligible to be WPC 5819/2010 5 members of the society and to cast their votes at the election. The learned Govt. Pleader has made available the byelaws of the society which is certified by the President, Director and Secretary of the society and countersigned by the Joint Registrar of Co-operative Societies (General), Malappuram. Clause v of the byelaws contain the stipulations regarding membership of the society. As per Clause v, three categories of membership are contemplated viz., A Class, B Class and C class. For an A class membership a person should have graduation or post graduation and should be a resident within the area of operation of the society or should be persons owning property within such area. They should also be persons who are willing to work in one of the institutions under the society or persons interested in working for the upliftment of the society. As per Ext.P2, the objections for disqualification mentioned is that the persons mentioned therein are employed. Clause v of the byelaws do not disqualify a person who is employed from becoming a member of the society. Or in other words employment does not disqualify a person from becoming a member of the society. The counsel for the petitioner has relied on a letter issued by the Joint Registrar of Co-operative Societies dated WPC 5819/2010 6 12.6.2006 rejecting an amendment that was proposed to the byelaws of the society to contend that since a specific amendment exempting employed persons from the disqualification of continuing members of the society was rejected, it should be presumed that employed persons are not entitled to be members thereof. There is no justification for the above contention for the reason that clause v of the byelaws as it stands at present does not contain any such disqualification. 8. In view of the above, the contention of the petitioners that 92 persons mentioned in Ext.P2 are liable to be excluded from the final voters list published by the first respondent lacks substance. The above being the position, there are no grounds to grant any of the reliefs prayed for in the writ petition. If the petitioner disputes the stipulations contained in clause v of the byelaws as it stnds at present, his remedy is to challenge those in appropriate proceedings. If ineligible persons have been included in the final voters list, the petitioners have the remedy of challenging the election in an election petition. As at present, there is no evidence or material to show that the persons mentioned in Ext.P2 are disqualified on any count, I do not find anything wrong in their WPC 5819/2010 7 inclusion in the voters' list. 9. In view of the above this writ petition fails and is accordingly dismissed. The dismissal of this writ petition is without prejudice to the remedies available to the petitioners to challenge the disputed provision of the byelaws as well as the election that is about to be conducted. If such proceedings are initiated they shall be considered untrammelled by any of the observations made above. No costs. K. SURENDRA MOHAN Judge jj WPC 5819/2010 8 K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: