IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 WP(C).No. 31169 of 2008(I) --------------------------------------- PETITIONER(S): ------------------------ ALICE JOSEPH, KUNNAMPURATH HOUSE, PERUMTHURUTH PO., KOTTAYAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): ---------------------------- 1. THE STATE CO.OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY THE SECRETARY. 2. THE JOINT REGISTRAR OF CO.OPERATIVE SOCIETIES(G), KOTTAYAM. 3. THE ELECTORAL OFFICER (ASST.REGISTRAR OF CO.OPERATIVE SOCIETIES (G) VAIKOM) KALLARA VILLAGE SERVICE CO-OPERATIVE BANK LTD.NO.3123, KALLARA, KOTTAYAM DISTRICT. 4. THE RETURNING OFFICER (UNIT INSPECTOR, THALAYAZHAM,OFFICE OF THE ASST.REGISTRAR OF CO.OPERATIVE SOCIETIES (G)M VAIKOM) KALLARA VILLAGE SERVICE CO.OPERATIVE BANK LTD.NO.3123, KALLARA, KOTTAYAM DISTRICT. 5. KALLARA VILLAGE SERVICE CO.OP.BANK LTD. NO.3123, KALLARA, KOTTAYAM DISTRICT,REPRESENTED BY THE SECRETARY. GOVERNMENT PLEADER SRI. K.C.SANTHOSHKUMAR FOR R1 TO R4 ADV. SRI.MATHEW JOHN FOR R5 SRI.AJEESH K.SASI FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KSS WPC.NO.31169/2008 I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PORTION OF THE AREA OF OPERATION OF THE SOCIETY. EXT.P2: COPY OF THE REQUEST DTD. 19/09/2008 GIVEN TO THE 2ND RESPONDENT. EXT.P3: COPY OF THE ELECTION NOTIFICATION NO.E(2)/1433/08/SCEC DTD. 15/10/2008 PUBLISHED ON 15/09/2008. EXT.P4: COPY OF THE LETTER DTD. 7/09/2008. EXT.P5: COPY OF THE LETTER DTD. 17/10/2008. EXT.P6: COPY OF THE REQUEST DTD. 17/10/2008. EXT.P7: COPY OF THE COMPLAINT GIVEN TO THE 3RD RESPONDENT BY THE PETITIONER IN RESPECT OF INELIGIBLE PERSONS INCLUDED IN THE VOTERS LIST. EXT.P8: COPY OF THE REPLY DTD. 21/10/2008. EXT.P9: COPY OF THE AREA OF OPERATION OF THE SOCIETY. RESPONDENT'S EXHIBITS: EXT.R5(A): COPY OF THE RESOLUTION DTD. 4/03/1951. EXT.R5(B): COPY OF THE AUDIT CERTIFICATE DTD. 20/06/2008. EXT.R5(C): COPY OF THE RELEVANT PORTION OF THE RESOLUTION DTD. 10/08/1963. EXT.R5(D): COPY OF THE RESOLUTION OF THE BOARD OF DIRECTORS. EXT.R5(E): COPY OF THE PROCEEDINGS OF THE GENERAL BODY OF THE SOCIETY DTD. 29/12/1968. EXT.R5(F): COPY OF THE PROCEEDINGS OF THE RETURNING OFFICER DTD. 24/04/1971. KSS ..2/- ...2..... WPC.NO.31169/2008 I EXT.R5(G): COPY OF THE RESOLUTION DTD. 19/02/1978. EXT.R5(H): COPY OF THE PROCEEDINGS OF THE RETURNING OFFICER DTD. 19/02/1978. EXT.R5(I): COPY OF THE PROCEEDINGS OF THE BOARD OF DIRECTORS DTD. 21/06/1980. EXT.R5(J): COPY OF THE PROCEEDINGS OF THE RETURNING OFFICER DTD. 25/09/1983. EXT.R5(K): ...DO...DO... DTD. 28/06/1988. EXT.R5(L): ...DO...DO.... DTD. 26/09/1992. EXT.R5(M): ...DO....DO.... DTD.11/11/1995. EXT.R5(N): ....DO....DO... DTD. 8/11/1998. EXT.R5(O): ...DO....DO.... DTD. 9/11/2003. EXT.R5(P): COPY OF THE RELEVANT PAGE OF THE REGISTER. EXT.R5(Q): ...DO...DO..... EXT.R5(R): ...DO...DO...... EXT.R5(S): ...DO...DO...... EXT.R5(T): ....DO...DO..... EXT.R5(U): COPY OF THE BYE-LAW OF THE SOCIETY. /TRUE COPY/ P.S.TO JUDGE KSS THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.31169 of 2008-I = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of November, 2008. JUDGMENT 1.Petitioner, a member of the 5th respondent co- operative society challenges Ext.P3 notification for election to the committee of that society. She also challenges Ext.P8 by which the Electoral Officer rejected her Ext.P7 objection to the list of members, eligible to vote. 2.The challenge against Ext.P3 is on the ground that it is issued applying delimitation of the area of operation of that society into wards on geographical basis without the support of any bye-law provision as approved by the general body. The classification of the general category seats into seven wards by delimitation on geographical basis is contended to be without the authority of the general body, since there is no WP(C)31169/2008 -: 2 :- bye-law provision to that effect that that any classification in that regard could be made only by the general body, which alone has the authority to amend the bye-laws. 3.The 5th respondent co-operative society was registered on 6.1.1951 as is evidenced by Ext.R5 (b). The Kerala Co-operative Societies Act, 1969, for short, the “KCS Act”, came into force on 15,5.1969. Section 110 of that Act, dealing with repeal and savings, provides for the repeal of the Travancore-Cochin Co-operative Societies Act, 1951, the enactment which governed the 5th respondent until such repeal. Sub-section (2) of Section 110 of the KCS Act is the saving clause which, inter alia, saves even the bye-laws of a society registered under the repealed enactment in so far as they are not inconsistent with the provisions of the 1969 Act and provides for the continuance of those bye-laws, until altered or rescinded. Election Rules were made by the committee of the 5th respondent delimiting seven WP(C)31169/2008 -: 3 :- constituencies on geographical basis. That was approved by the statutory authority. Ext.R5(d) decision of the committee of the 5th respondent, as approved by the statutory authority, also found the approval of the general body of the society on 29.12.1968, as is evidenced by Ext.R5 (e). The recording of Ext.R5(e) is sufficient enough to hold that the decision of the committee of the 5th respondent, as evidenced by Ext.R5(d), stood with the approval of the general body. 4.The decisions in Anil Akkara v. Registrar of Co- op. Societies [2004 (2) KLT 805], Udayakaran v. Ahammedkannu [2004 (2) KLT 969] and Mathai v. State Co-operative Election Commission [2007 (2) KLT 789] are relied on by the petitioner, predominantly, in support of the proposition that any delimitation of the area of a society's operation into different wards, could be made only by the general body. Those precedents, as noticeable from paragraph 12 and 13 in Udayakaran (supra), are so laid because, the power to WP(C)31169/2008 -: 4 :- determine the constituency to be reserved under Section 28A cannot be left to the committee of a society but has to be with the general body. 5.In the case in hand, the delimitation of the area of operation of the society into different wards on geographical basis was done by the process of Exts.R5(d) and R5(e) and the intervening approval of the statutory authority, meaning thereby that Ext.R5(e) resolution of the general body is the decision which declares that the wards determined in Ext.R5(d) shall be the constituencies, so delimited geographically, for the purpose of election to the committee of the 5th respondent. Those resolutions are not rescinded. They continue to hold good. Therefore, the prescription that was already made by the committee and the general body of the 5th respondent as per Exts.R5(d) and R5(e) continues to govern the field. Later, when Ext.R5(u) amendment of the bye-laws was made by the general body with the approval of the Joint Registrar WP(C)31169/2008 -: 5 :- stating that the election will be on the basis of wards in so far as it relates to seven seats, the general body essentially continued to sustain its decision as contained in Ext.R5(e). Therefore, the delimitation for the purpose of election to the committee of the 5th respondent is as provided for as per Ext.R5(d), which is approved by the general body of the 5th respondent as per Ext.R5 (e). The challenge to Ext.P3, therefore, fails. 6.There are 6706 members in the list of members who are eligible to vote, as published by the committee of the 5th respondent. Ext.P7 is filed stating that 3359 persons are unqualified. Ext.P7 shows that the petitioner has produced along with its original, the copies of bye-laws of the 5th respondent and of another society disclosing the area of operation of both the societies. She has also produced the voters' list published by the Kerala State Election Commission as regards Ward Nos.6, 7, 8, 9, 10, 11 and 12 of Kallara (Vaikom) grama panchayat. The allegation in Ext.P7 is that WP(C)31169/2008 -: 6 :- the persons enumerated therein reside outside the area of operation of the 5th respondent. The provisions of the bye-laws of the 5th respondent provide for admission of persons who reside within the area of operation and also who have certain properties etc. In Ext.P7, the petitioner has not stated the specific ground or allegation relatable to each among the 3359 persons as are enumerated in Ext.P7 to state why she contends that the said person is ineligible to be a member. Though it is permissible and within the jurisdiction of the electoral officer to consider the objections to the draft voters' list, it is not obligatory to consider omnimus objections as are raised in Ext.P7, particularly when the said objections, if entertained, would call for essentially an audit of facts relatable to each person about which the petitioner has not even specifically averred in Ext.P7. If the electoral officer was to consider the omnimus objections in Ext.P7 and sit to decide on each objection, the same will only thwart the electoral process and WP(C)31169/2008 -: 7 :- break its schedule. Comparing such an opportunity before the electoral officer with the availability of an election dispute under Section 69 of the KCS Act, I do not find any jurisdictional error or legal infirmity in the issuance of Ext.P8, while the petitioner could take recourse to Section 69 of the KCS Act after the election is over, if aggrieved, including on the grounds of ineligibility of voters as enlisted in Ext.P7. 7.The very factum of inclusion or exclusion in the voters' list published by the State Election Commission does not, ipso facto, conclude any issue when a question is raised as to a particular person's eligibility for admission as member in a co-operative society, though that may be a relevant material for consideration. The only material relied on by the petitioner is the voters' list issued by the State Election Commission which is not a comprehensive material even going by the provisions of the KCS Act WP(C)31169/2008 -: 8 :- because, the eligibility of membership is to be determined with reference to the terms of the bye-laws. 8.The challenge to Ext.P8 hence fails. In the result, this writ petition is dismissed. Any inhibition to the electoral process as per the interim order dated 28.10.2008 is hereby vacated and the election can go on. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/051108