IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 OP(C).No. 2968 of 2011(O) ------------------------- IA NO.1423/2011 IN AS.196/2011 of II ADDL. DISTRICT COURT, KOLLAM OS NO.327/2003 OF PRINCIPAL SUB COURT, KOLLAM .................... PETITIONERS: ------------------------------- 1. SREE GUHANANDAPURAM DEVASWOM, DEVASWOM OFFICE, SUBRAMANIAN TEMPLE COMPOUND, NADAVATHUCHERRY, THEKKUMBHAGOM VILLAGE, REP. BY ITS SECRETARY M.NATARAJAN (NOW HE IS NOT THE SECRETARY, HIS PERIOD IS OVER). 2. NATARAJAN, SECRETARY, GUHANANDAPURAM DEVASWOM, AGED 57 YEARS, S/O. MADAVA PANICKER, RESIDING AT KUTTATHU VADAKKATHIL, NADAVATHUCHERRY, CHAVARA, THEKKUMBHAGOM VILLAGE. (NOW THE TERM OF SECRETARY IS OVER). 3. VIJAYAN, TREASURER, SREE GUHANANDAPURAM DEVASWOM, AGED 59 YEARS, S/O. PAPPU, VIJAYAVILASAM, NADUVATHUCHERRY, CHAVARA SOUTH VILLAGE, (NOW THE TERM OF TREASURER IS OVER). BY ADV. SRI.A.K.ALEX RESPONDENT(S): --------------- 1. C.N.SHANMUGHAN, AGED 61 YEARS, S/O. NARAYANAN, RESIDING AT SHANMUGHA NIVAS, NADUVATHUCHERRY, CHAVARA, THEKKUMBHAGOM VILLAGE-691583. 2. LAKSHMANAN, AGED 76 YEARS, S/O. RAMAN, RESIDING AT VADAKKEYATTATHU VEEDU, NADUVATHUCHERRY, CHAVARA SOUTH VILLAGE-691583. 3. GOPINATHAN, AGED 70 YEARS, S/O. GOVINDAN, RESIDING AT GODANDA VILASOM, NADUVATHUCHERRY, CHAVARA SOUTH VILLAGE-691583. 4. DAYANANDAN, AGED 56 YEARS, S/O. MADHAVAN, RESIDING AT MELOOTTU VADAKKATHIL, NADUVATHUCHERRY, CHAVARA, THEKKUMBHAGOM VILLAGE-691583. OP(C)NO.2968/2011 2 5. VASANTHA RAJAN, AGED 41 YEARS, S/O. DAMODARAN, RESIDING AT SAVITHRI NIVAS, NADUVATHUCHERRY, CHAVARA, THEKKUMBHAGOM VILLAGE-691583. 6. DHARMAPALAN, AGED 64 YEARS, S/O. NARAYANAN, RESIDING AT PREETHA BHAVAN, NADUVATHUCHERRY, CHAVARA, THEKKUMBHAGOM VILLAGE-691583. 7. SHAJI BABU, AGED 48 YEARS, S/O. KARUNAKARAN, RESIDING AT SHYLAJA MANDIRAM, NADUVATHUCHERRY, CHAVARA, THEKKUMBHAGOM VILLAGE-691583. 8. MADHU, AGED 34 YEARS, S/O.MURALEEDHARAN, PUTHUMANA VEEDU, NADUVATHUCHERRY, CHAVARA, THEKKUMBHAGOM VILLAGE-691583. 9. KOCHU PILLAI, AGED 75 YEARS, S/O. PARAMESWARAN, VISWA BHAVAN, NADUVATHUCHERRY, CHAVARA, THEKKUMBHAGOM VILLAGE-691583. 10. GANGEYAN, AGED 60 YEARS, S/O. KARTHIKEYAN, KAYALIYIL, NADUVATHUCHERRY, CHAVARA, THEKKUMBHAGOM VILLAGE-691583. 11. KARTHIKEYAN, AGED 65 YEARS, S/O. KRISHNAN, ULAKKATTU VEEDU, NADUVATHUCHERRY, CHAVARA, THEKKUMBHAGOM VILLAGE-691583. (DIED) 12. NEELAMBARAN, AGED 57 YEARS, S/O. JANARDHANAN, PADIYANAYIL VEEDU, NADUVATHUCHERRY, CHAVARA, THEKKUMBHAGOM VILLAGE-691583. 13. THEKKUMBHAGOM SERVICE CO-OPERATIVE BANK LTD., 1731, NADUVATHUCHERRY, CHAVARA SOUTH P.O., THEKKUMBHAGOM VILLAGE, REPRESENTED BY ITS SECRETARY-691583. 14. RAJAN PILLAI, AGED ABOUT 50 YEARS, ADVOCATE, PRESIDENT, THEKKUMBHAGOM SERVICE CO-OPERATIVE BANK LTD.NO.1731, RESIDING AT KRISHNAVILASOM BUNGALOW, VADAKKUMBHAGOM, CHAVARA SOUTH P.O-691583. 15. RAMA RAJU, AGED 40 YEARS, S/O. SIVANANDAN, RESIDING AT RAJ BHAVAN, NADUVATHUCHERRY, CHAVARA SOUTH VILLAGE-691583. 16. T.THANKARAJ, AGED 37 YEARS, S/O. THANKAPPAN, PRESIDENT, SREE GUHANANDAPURAM DEVASWOM, NADUVATHUCHERRY, CHAVARA SOUTH VILLAGE-691583. 17. SHAN NARAYANAN, AGED 37 YEARS, S/O. NARAYANAN, RESIDING AT KUMBITHODIL VEEDU, NADUVATHUCHERRY, CHAVARA SOUTH VILLAGE-691583. OP(C)NO.2968/2011 3 18. S.JAYARAJAN, AGED 25 YEARS, S/O. SUKUMARAN, SUKUMARA MANDIRAM, NADUVATHUCHERRY, CHAVARA SOUTH VILLAGE -691583. 19. MANILAL, AGED 35 YEARS, S/O. RAVEENDRAN, RESIDING AT SUKUMARA MANDIRAM, NADUVATHUCHERRY, CHAVARA SOUTH VILLAGE -691583. 20. REVENUE DIVISIONAL OFFICER, KOLLAM-691001. ADV. SRI.K.V.ANIL KUMAR FOR R9,10,12 SRI.M.V.THAMBAN FOR R1TO R8 SRI.R.REJI FOR R1-8 SMT.THARA THAMBAN FOR R1 TO R8 SRI.B.BIPIN FOR R1TO R8 SMT.REVATHY P.NAIR FOR R1 TO R8 GOVT. PLEADER SHRI T.K.SAJEEV FOR R20 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.2968/2011 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS 327/2003 OF SUB COURT, KOLLAM EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED BY DEFENDANTS 1 TO 9 IN OS 327/2003 OF SUB COURT, KOLLAM EXT.P3 TRUE COPY OF ORDER DATED 10.12.2003 IN IA NO.163/2003 IN OS73/2004 OF SUB COURT, KOLLAM EXT.P4 TRUE COPY OF JUDGMENT DATED 30.1.2007 IN WP(C)NO.26796/2006 OF THIS COURT EXT.P5 TRUE COPY OF THE PRELIMINARY VOTERS LIST PREPARED BY THE COMMISSIONER IN OS 327/2003 OF SUB COURT, KOLLAM EXT.P6 TRUE COPY OF THE FINAL VOTERS LIST PUBLISHED BY THE COMMISSIONER IN OS 327/2003 OF SUB COURT, KOLLAM EXT.P7 TRUE COPY OF THE ORDER IN IA NO.864/2007 PASSED BY THE SUB COURT,KOLLAM EXT.P8 TRUE COPY OF THE BYE-LAW OF THE 1ST PETITIONER DEVASWOM EXT.P9 TRUE COPY OF THE JUDGMENT DATED 15.11.2010 IN WP(C06683/2008 OF THIS COURT EXT.P10 TRUE COPY OF THE JUDGMENT DATED 29.07.2011 IN OS 327/2003 OF THE SUB COURT, KOLLAM EXT.P11 TRUE COPY OF THE MINUTES OF THE 1ST PETITIONER DEVASWOM FOR THE PERIODS FROM 25.12.2002 TO 1.1.2004 EXT.P12 TRUE COPY OF THE RECEIPTS WHICH SHOWS THAT MEMBERSHIP FEES ARE RECEIVED IN THE YEAR 2003 EXT.P13 TRUE COPY OF THE NOTICE PUBLISHED BY THE COMMISSIONER FOR CONDUCTING THE ELECTION EXT.P14 TRUE COPY OF THE APPEAL MEMO IN A.S. 196/2011 OF THE ADDITIONAL DISTRICT COURT, KOLLAM EXT.P15 TRUE COPY OF IA NO.1423/2011 IN AS 196/2011 OF THE ADDITIONAL DISTRICT COURT, KOLLAM EXT.P16 TRUE COPY OF THE ORDER PASSED IN IA 1423/2011 IN AS NO.196/2011 OF THE ADDITIONAL DISTRICT COURT, KOLLAM RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE PRELIMINARY DECREE IN OS NO.327/2003 DATED 29.07.2011 EXT.R1(b) TRUE COPY OF THE EXTRACT OF THE MEMORANDUM IN WP(C)NO.16183/2008 OP(C)NO.2968/2011 EXT.R1(c) TRUE COPY OF THE OBJECTION IN IA NO.1423/2011 IN AS 196/2011 ON THE FILE OF THE 2ND ADDITIONAL DISTRICT JUDGE AT KOLLAM EXT.R1(d) TRUE COPY OF THE RELEVANT PORTION OF THE BYE-LW OF SREE GUHANANDAPURAM DEVASWOM //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2968 of 2011 -------------------------------------- Dated this the 27th day of September, 2011. JUDGMENT Petitioners are the plaintiffs in O.S.No.327 of 2003 of the court of learned Principal Sub Judge, Kollam. There are other connected suits also between the parties, all related to either the election of office bearers of the 1st petitioner or as to the management and administration of the 1st petitioner. Petitioners in O.S.No.327 of 2003 sought a declaration that the election of 2nd and 3rd petitioners and 16th defendant to the respective office of the 1st petitioner is in accordance with the constitution of 1st petitioner (marked as Ext.A1 in the trial court) and for consequential injunction restraining defendants 1 to 13 from interfering with the functioning of the elected office bearers. There were various contentions in the suit as to the validity of the elections that the parties claimed. At one stage the matter came to this Court in W.P.(C) Nos.6683 and 16183 of 2008. This Court passed Ext.P9, judgment on November 15, 2010. It was directed that the trial court shall expedite disposal of the suits and that it will be open to the trial court to appoint an Advocate Commissioner to conduct fresh election. In the judgment, learned Judge also made certain observations as to correctness of the Advocate Commissioner (who was appointed to conduct the election) deleting some of the voters from the voters' list based on an alleged custom prevalent with the 1st petitioner. Learned Judge observed that it was not for the Advocate Commissioner to jump into any conclusion as to the existence OP(C)No.2968/2011 2 of any such custom as against the bye law and delete any member from the voters' list but, did not render any final decision on the question. Thereafter the suits were jointly tried by the learned Sub Judge, Kollam and all the suits were dismissed but in tune with the directions contained in Ext.P9, common judgment in W.P.(C) Nos.6683 and 16183 of 2008 a preliminary decree was passed for the conduct of election. Accordingly the Advocate Commissioner conducted the election. Challenging that preliminary decree, petitioners have preferred A.S.No.196 of 2011 in the court of learned II Additional District Judge, Kollam and moved I.A.No.1423 of 2011 for stay of all further proceedings of the preliminary decree. That application was dismissed by learned Additional District Judge by Ext.P16, order. Learned Additional District Judge observed: “............... at this stage this court is not inclined to stay the proceedings. The appellants may file fresh application before this Court to restrain the newly elected office bearers from taking charge after the entire records in the case is made available to the court”. 2. Learned counsel for petitioners contended that the election conducted as per the preliminary decree is not valid and that even the observations made by this Court in Ext.P9, judgment were not taken into account by the Advocate Commissioner. Various other contentions are also raised to show that the election conducted is illegal. It is therefore prayed that the newly OP(C)No.2968/2011 3 elected office bearers may be prevented from assuming charge and taking over the properties from the Sub Divisional Magistrate who is now in possession and administering the properties. 3. Learned counsel for respondents 1 to 8 contended that the election was conducted strictly in accordance with Ext.A1, constitution and as the preliminary decree directed the Advocate Commissioner. Learned counsel invited my attention to the observations/findings in Ext.P10, Judgment of the trial court and in particular, the observations in paragraph 18. 4. In paragraph 18 of Ext.P10, judgment, the trial court stated that the Advocate Commissioner prepared a draft voters' list and after hearing all interested parties has finalised the list, objections to the report were heard and rejected by the court, the order of the court accepting the voters list has not been set aside and that as per the bye law, male and female members are entitled to be members. In the operative portion of Ext.P10, judgment learned Sub Judge issued directions regarding conduct of election. One of the directions is that the Advocate Commissioner shall comply with Ext.A1, in conducting the election. According to the learned counsel for respondents 1 to 8, certain members were deleted from the voters' list since their membership was based on bogus documents as found by this Court in Ext.P9, judgment. 5. In the light of the observations which I referred from Exts.P9 and P10, judgments it is for the learned Additional District Judge or the learned Sub Judge as the case may be to decide, whether the election conducted is in OP(C)No.2968/2011 4 accordance with Ext.A1. But learned counsel for petitioners has invited my attention to the observations made by the learned Additional District Judge in paragraph 11 of Ext.P16, order: “I make it clear that considering the spirit of the judgment of Hon'ble High Court the appellants ought to have refrained from preferring the appeal. ..........” I make it clear that the learned Additional District Judge has to decide the appeal on merit notwithstanding the said observation. 6. Now coming back to the question whether the elected members are to be restrained from taking charge of office, it is not disputed that the administration of 1st petitioner is now with the Sub Divisional Magistrate. Even as per Ext.P10, judgment and as it appears to me, the Advocate Commissioner is to submit a report to the learned Sub Judge after the election is over and on receipt of the report of the election a final decree is to be passed as directed in the preliminary decree. Therefore, it appears to me that the newly elected office bearers could assume office only as per the order or the final decree as the case may be, to be passed by the learned Sub Judge after the Advocate Commissioner submits his report on the election. I must also bear in mind that the learned Additional District Judge has not foreclosed the right of petitioners for moving a fresh application for injunction in the appeal in that learned Additional District Judge observed that it is open to the petitioners (appellants) to move fresh application for injunction against the elected office bearers assuming OP(C)No.2968/2011 5 charge of office after the entire records of the case is received by that court. In that view, this Court is not required to interfere in the matter of newly elected office bearers assuming office. 7. It is also necessary that the controversy in the matter is resolved at the earliest. Hence the learned Additional District Judge is directed to dispose of the appeal as provided under law if preliminary steps on the appeal are over, as early as possible. Original Petition is disposed of with the above observations and directions. THOMAS P.JOSEPH, Judge. cks