IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 WP(C).No. 30811 of 2011(B) ----------------------------------- PETITIONER(S): ---------------------- A.R.KUMARAN, AGED 66, S/O.LATE RAMAN, ATTOKKARAN HOUSE, SEETHARAM LANE, POONKUNNAM, THRISSUR. BY ADV. SMT.ANU SIVARAMAN RESPONDENT(S): ------------------------ 1. THE RETURNING OFFICER, THRISSUR DISTRICT CO-OPERATIVE HOSPITAL LTD, ASSISTANT REGISTRAR (GENERAL), CHAVAKKAD - 680506 2. THE THRISSUR DISTRICT CO-OPERATIVE HOSPITAL LTD.NO.R306, REPRESENTED BY ITS SECRETARY, THRISSUR - 680001. 3. THE ADMINISTRATOR, THRISSUR DISTRICT CO-OPERATIVE HOSPITAL LTD.NO.R306, SENIOR CO-OPERATIVE INSPECTOR, OFFICE OF THE JOINT REGISTRAR (GENERAL), THRISSUR - 680001. 4. SECRETARY, THRISSUR DISTRICT CO-OPERATIVE HOSPITAL LTD.NO.R306, THRISSUR - 680001. 5. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THRISSUR - 680001. 6. THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM - 695001. ADDL. 7. T.K.PORINCHU, MEMBER TRICHUR DISTRICT CO-OPERATIVE HOSPITAL LTD., SHORNUR ROAD, TRICHUR. (IMPLEADED AS PER I.A. NO.18552 DTD 19/11/2011) BY GOVT. PLEADER SRI.G.GOPAKUMAR. ADDL.R7 BY ADV. SRI.GEORGE POONTHOTTAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30811 of 2011(B) APPENDIX PETITIONER(S) EXHIBITS : EXT.P-1 TRUE COPY OF THE NOTIFICATION PUBLISHED BY THE 1ST RESPONDENT DATED 31.10.2011 EXT.P-2 TRUE COPY OF THE OBJECTION PREFERRED BY THE PETITIONER TO THE DRAFT VOTERS LIST BEFORE THE 1ST RESPONDENT DATED 10.11.11. EXT.P-3 TRUE COPY OF THE MEMBERSHIP OF ROSSY DT.28.8.1985 EXT.P3(a) TRUE COPY OF THE NOMINATION OF ANNIE ANTO DT.10.3.10 EXT.P-4 TRUE COPY OF THE MEMBERSHIP ANTHONI. EXT.P4(a) TRUE COPY OF NOMINATION OF ANTONY J.KAVALAKATT EXT.P-5 TRUE COPY OF THE MEMBERSHIP OF JOPHY ANTONY EXT.P5(a) TRUE COPY OF NOMINATION TOJO KOCHIKUNNEL EXT.P-6 TRUE COPY OF THE MEMBERSHIP OF AMMINI ANTONY. EXT.P6(a) TRUE COPY OF THE NOMINATION OF SUJA TOJO EXT.P-7 TRUE COPY OF THE ORDER IN DATED 12.12.2001 ISSUED BY THE 1ST RESPONDENT. EXT.P-8 TRUE COPY OF FINAL VOTERS LIST. EXT.P-9 TRUE COPY OF REQUEST MADE BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 15.11.2011 EXT.P-10 TRUE COPY OF THE IDENTITY CARD ISSUED BY THE DISTRICT CO-OP.HOSPITAL LTD, MEMBERSHIP NO.4220 EXT.P-11 TRUE COPY OF THE IDENTITY CARD ISSUED BY THE DISTRICT CO-OP.HOSPITAL LTD MEMBERSHIP NO.4174. RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.A TO JUDGE STU P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.30811 of 2011 ----------------------------------------- Dated this the 19th day of November, 2011 JUDGMENT The petitioner is a member of the second respondent co- operative society. Elections to the Managing Committee of the second respondent society are scheduled to be held on 4.12.2011 in terms of Ext.P1 election notification issued by the first respondent Returning Officer. In this writ petition the petitioner challenges Ext.P8 final voters list published by the Returning Officer and Ext.P7 letter sent by him to the petitioner informing him that his objections have been considered and the final voters list published on 12.11.2011. The petitioner has also prayed for consequential reliefs including a direction to the Returning Officer to prepare a revised final voters list. 2. The main contention raised by the petitioner is that the material objections raised by him to the draft voters list in Ext.P2 representation have not been considered by the Returning Officer. The petitioner has in Ext.P2 objections filed by him to the draft voters list published on 3.11.2011 stated that member No.4220 W.P(C).No.30811 of 2011 -:2:- was Smt.Rosy, w/o.Akkara Ittyera, but in the membership register Smt.Annie Anto is shown as member No.4220, that the nomination made by Smt.Rosy was in favour of her husband Sri.Ittyera and therefore, the inclusion of the name of Smt.Annie Anto as a member in the voters list is irregular. The petitioner had also pointed out three other similar instances. Reliance is placed on Exts.P3, P3(a), P4, P4(a), P5, P5(a), P6 and P6(a) in support of this contention. It is contended that there are so many similar instances where instead of the nominee some other person, has been shown as the member in the membership register and included in the voters list. Smt.Anu Sivaraman, learned counsel appearing for the petitioner, contended relying on section 25 of the Kerala Co-operative Societies Act and rule 23 of the Kerala Co-operative Societies Rules, that on the death of a member the share or interest of the deceased member has to be transferred to the person nominated by the member and not to a stranger and that a large number of persons who were not nominated by the deceased member have been given membership. The leaned counsel contended with reference to the documents produced as Exts.P3, P4, P5 and P6 that none of the W.P(C).No.30811 of 2011 -:3:- nominees find a place in the voters list, but some other person is shown as the member and therefore, the voters list is vitiated. Referring to serial No.101 in the voters list, namely Sri.V.N.Venkitaseshan, the learned counsel contended that the said member is residing in Bombay and therefore he is ineligible to be a member of the second respondent society. The learned counsel further contended that the Returning Officer ought to have, in view of these glaring illegalities, deleted the names of ineligible members from the voters list after ascertaining whether on the death of the member, his or her nominee alone has been admitted as a member and whether persons residing outside the area of operation of the society have been enrolled as members. 3. I have considered the submissions made at the Bar by the learned counsel appearing for the petitioner. I shall first deal with the contention raised by the learned counsel for the petitioner that Serial No.101 in Ext.P8 voters list namely Sri.V.N.Venkitaseshan, was illegally enrolled as a member of the society. It is contended that as the said member is residing outside the area of operation of the society his name should not have been included in the voters list. Section 16 of the Kerala Co- W.P(C).No.30811 of 2011 -:4:- operative Societies Act deals with admission of members to a co- operative society. Sub-section (1) of section 16 stipulates that except an individual who is a resident or is in occupation of land in the area of operation of the society, no other individual shall be admitted as a member. The petitioner has not stated that when Sri.Venkitaseshan was admitted as a member he was not residing within the area of operation of the society or was not in occupation of land in the area of operation of the society. There is also no material to show that even at the time of admission as a member he was not residing within the area of operation of the society or did not occupy land within the area of operation of the society. In short, there is no material to hold that the admission of Sri.Venkitaseshan as a member of the society was contrary to section 16(1) of the Kerala Co-operative Societies Act. In my opinion the Returning Officer was not bound to conduct a roving enquiry to find out whether Sri.Venkitaseshan was illegally admitted as a member. 4. That takes me to the question whether the Returning Officer was bound to conduct a roving enquiry as to whether any person other than the person nominated by a deceased member W.P(C).No.30811 of 2011 -:5:- has been admitted as a member of the society. The provisions governing nomination are section 25 of the Kerala Co-operative Societies Act and rule 23 of the Kerala Co-operative Societies Rules. They read as follows:- “Section 25. Transfer of interest on death of members:- (1) On the death of a member of a society, the society shall transfer the share or interest of the deceased member to the person or persons nominated in accordance with the rules or the bye-laws or, if no person has been so nominated, to such person as may appear to the Committee to be the heir or legal representative of the deceased member: Provided that such nominee, heir or legal representative, as the case may be, is admitted as a member of the society: Provided further that nothing in this sub section shall prevent a minor or a person of unsound mind from acquiring by inheritance or otherwise the share or interest of a deceased member in a society. (2) Notwithstanding anything contained in sub-section (1), and such nominee, heir or legal representative, as the case may be, may require the society to pay to him the value of the share or interest of the deceased member ascertained in accordance with the rules or the bye-laws and the W.P(C).No.30811 of 2011 -:6:- society shall pay the amount to the nominee, heir or legal representative, as the case may be, on receipt of such requisition. (3) A society may pay all other moneys due to the deceased member from the society to such nominee, heir or legal representative, as the case may be. (4) All transfers and payments made by a society in accordance with the provisions of this section shall be valid and effectual against any demand made upon the society by any other person.” “Rule 23. Nomination of an Heir: - (1) A member of a society may nominate a person to whom, in the event of his death, his share or interest in the capital of the society shall be transferred or the value thereof or any other moneys due to him from the society shall be paid. Such member may from time to time vary or revoke such nomination and any other nomination made in accordance with the rules. (2) The nomination made for the purpose shall be -- (a) in writing signed by the member making it, and attested by at least two witnesses, each of whom has been the member signing it; and (b) registered in the books of the society kept for the purpose.” It is evident from section 25 and rule 23 referred to above that W.P(C).No.30811 of 2011 -:7:- on the death of a member, the society is bound to transfer the share or interest of the deceased member to the person or persons nominated in accordance with the rules or the bye-laws by the deceased member or if no person has been so nominated, to such person as may appear to the Committee to be the heir or legal representative of the deceased member. Rule 23 enables the person who has made the nomination to change it and nominate another person as the nominee. The petitioner has no case that only the spouse of a member or the child of a member can be named as a nominee. The contention raised by the petitioner relying on Exts.P3, P4, P5 and P6 is that contrary to the nomination, strangers have been admitted as members. The petitioner has no case that the nomination was never altered by the member during his or her lifetime. Even assuming that such a plea is raised, it would necessitate an enquiry by the Returning Officer to decide whether the person enrolled is the person nominated by the deceased member. A Division Bench of this Court has in Vijayakumar v. Joint Registrar, 1996 (1) KLT 285 held that the only enquiry which the Returning Officer can conduct is for the purpose of deciding whether the person whose W.P(C).No.30811 of 2011 -:8:- name is shown as a member has acquired the right to vote. The petitioner has no case that any of the members whose names find a place in the final voters list are ineligible to vote on that count. I am therefore, of the considered opinion that no interference is called for with the final voters list. The writ petition fails and is accordingly dismissed. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.30811 of 2011 ---------------------------- JUDGMENT 19th November, 2011