IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 WP(C).No. 18330 of 2008(F) -------------------------- AGAINST THE ORDER DATED / / IN IA 601/2008 IN OS.19/2008 of SUB COURT, VADAKARA .................... PETITIONERS: ------------ 1. T.V.C. KUNHAMMAD HAJI,S/O.MOIDEEN AGED 57 YEARS, GENERAL BODY MEMBER,NUSRATHUL ISLAM SAMGHAM DEVARKOVIL, KAYAKKODI AMSOM, DEVARKOVIL DESOM, POST TALIYIL, VATAKARA TALUK, KOZHIKODE DISTRICT , KERALA STATE. 2. V.A.C. IBRAHIM HAJI,S/O.AMMAD HAJI AGED 48 YEARS,GENERAL BODY MEMBER,NUSRATHUL ISLAM SAMGHAM DEVARKOVIL, KAYAKKODI AMSOM, DEVARKOVIL DESOM, POST TALIYIL, VATAKARA TALUK, KOZHIKODE DISTRICT , KERALA STATE. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENTS: ------------- 1. NUSRATHUL ISLAM SAMGHAM DEVARKOVIL, SOCIETY REGISTERED UNDER SOCIETIES REGISTRATION ACT, POST TALIYIL -WITH REGISTERED OFFICE AT BUILDING NO. 482,WARD NO.5 OLD WARD NO.2 KAYAKKODI PANCHAYATH, VATAKARA TALUK, KOZHIKODE DISTRICT,KERALA STATE. 2. K.T.ABOOBUCKER,S/O.THARUVAI, AGED 65 YEARS, RESIDING AT THAHIRA MANZIL,DEVARKOVIL KAYAKKODI, AMSOM, DEVARKOVIL DESOM,POST TALIYIL, VATAKARA TALUK, KOZHIKODE DISTRICT,KERALA STATE. 3. T.H.AHAMMAD,S/O.MOIDU HAJI,AGED 54 YEARS RESIDING AT THAZHETHADATHIL,KAYAKKODI AMSOM, DEVARKOVIL DESOM,POST TALIYIL,VATAKARA TALUK, KOZHIKODE DISTRICT,KERALA STATE. 4. ASSISTANT EDUCATION OFFICER,KUNNUMMAL POST KAKKATTIL, VATAKARA TALUK, KOZHIKODE DISTRICT,KERALA STATE. 5. DEPUTY DIRECTOR, EDUCATION, KOZHIKODE KERALA STATE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.18330 of 2008 ------------------------------- Dated this the 18th June, 2008. J U D G M E N T Petitioners are the plaintiffs in O.S.No.19/2008, on the file of Sub Court, Vadakara. Under Ext.P4 order, learned Sub Judge allowed the application filed by the petitioners and appointed an Advocate to act as an Observer in the meeting of the General Body, where petitioners have to move a no confidence motion. Under Ext.P4 order, learned Sub Judge also permitted right to vote in favour or against the no confidence motion to 506 members, as contended by the respondents. This petition is filed under Article 227 of Constitution of India to quash Ext.P4 order to the extent of permitting to attend the meeting and to vote in the no confidence motion to 234 members, who were not among the 272 members as on 9.9.2007, when the office bearers were admittedly elected. 2. The learned counsel appearing for the petitioners vehemently argued that in Ext.P5 plaint, petitioners specifically pleaded that there were only 272 members on 9.9.2007 and in Ext.P7 W.P.(C) No.18330/2008 2 application for appointment of a Commission also, it was specifically stated that there were only 272 members eligible to vote on 9.9.2007, and in Ext.P8, counter statement filed to Ext.P7 application, there was no case for the respondents that new members were inducted or that there are 506 members and that case was projected only when the second application was filed for appointment of Commission pursuant to Ext.P1 judgment of this Court in W.P.(C) No.12303/2008, and in such circumstances, learned Sub Judge should have restricted the right to vote to 272 members alone who were admittedly on the rolls on 9.9.2007. The learned counsel also argued that in any case the remaining members out of 506 members now held eligible to vote under Ext.P9 order may be identified and petitioners may be granted opportunity to dispute their right to vote in the suit, at the time of evidence, and depending on that finding, they may be allowed to challenge the result of the no confidence motion. 3. On hearing the learned counsel, I do not find any reason to interfere with Ext.P9 order. Under Ext.P10 bye-law, eligible members satisfying the requirements are entitled to get enrolled as members of the General Body, on satisfying the conditions provided W.P.(C) No.18330/2008 3 thereunder. The plaint does not contain an allegation that after the petitioners expressed their intention to move no confidence motion, respondents either inducted or attempting to intend to induct new members much less to defeat the no confidence motion. In such circumstances, in the absence of evidence, it cannot be said that the 234 members out of the 506 members less the 272 members, who were on the rolls as on 9.9.2007 or a part of them were inducted, subsequent to the intention expressed by the petitioners to move a no confidence motion. As Ext.P10 does not prohibit new office bearers or the executive committee from enrolling new members, it cannot be found that the new members to the general body are not entitled to cast their vote to the no confidence motion. In such circumstances, voting to the no confidence motion cannot be restricted only to the members as on the date of election on 9.9.2007. Right to cast vote is available to all the eligible members on the date on which no confidence motion is moved. In such circumstances, there is no illegality or irregularity in Ext.P9 order warranting interference. If the case of the petitioners is that remaining 234 members were inducted with the sole purpose of defeating the no confidence motion, petitioners are at liberty to adduce evidence in support of the same. If W.P.(C) No.18330/2008 4 ultimately court finds that only 272 members are entitled to vote, and the other members were inducted against the provision of Ext.P10 bye-law or after the notice of no confidence motion, petitioners are entitled to challenge the result of no confidence motion in the suit or in appropriate proceedings. The writ petition is disposed of as above. M.SASIDHARAN NAMBIAR, JUDGE nj.