Disposed

Managing Committee of the Kaduthuruthy v. the State Co-Operative Election Commission

Kerala HC4 Feb 2019WP(C)/865/2019

Case brief

AI extract

What is this about?

The High Court of India at Ernakulam disposed of writ petitions seeking quashing of the Electoral Officer's order excluding members from a co-operative bank election voters list. The Court directed that excluded members could vote in a separate box without their votes being counted, but reserved the right to dispute the list via the statutory arbitration remedy.

What did the court decide?

Members not excluded for their own irregularities are permitted to vote in a separate box with votes not counted; exclusion of 1842 members must be challenged via Section 69 arbitration remedy.

Managing Committee of the Kaduthuruthy Vs the State… — Cooperative Societies | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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MONDAY ,THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940

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WP(C).No. 602 of 2019

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PETITIONER/S:

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1 SHAJI PAILY AGED 49 YEARS MEMBER NO.40900, ATTIPPURATH HOUSE, MANJOOR P.O., KOTTAYAM

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2 P.V.PADMAKUMAR, MEMBER NO.41265, MUKALEL, MANJOOR P.O., KOTTAYAM.

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3 VINEETH.S.VISWANATHAN, MEMBER NO.41261, THOOMBUNKAL, MANJOOR P.O., KOTTAYAM.

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4 NIDHIN BABU, MEMBER NO.41266, MANJOOR P.O., KOTTAYAM.

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5 THOMAS MATHEW, MEMBER NO.42213, MANNANCHERIL, KADUTHURUTHI, KOTTAYAM.

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6 SEBASTIAN MATHEW, MEMBER NO.41132, KALANGOOTTIL, VELLASSERY, KADUTHURUTHY, KOTTAYAM.

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7 ALIAS THOMAS, MEMBER NO.41673, PAYIPPATTUTHARA, POOZHIKONE P.O., KADUTHURUTHI, KOTTAYAM.

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8 JOHN MATHEW, MEMBER NO.41133, KALANGOOTTIL, VELLASSERY, KADUTHURUTHY, KOTTAYAM. BY ADV. SRI.P.N.MOHANAN

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W.P(C) Nos.602 & 865 of 2019

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RESPONDENT/S:

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1 THE STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ELECTION COMMISSIONER, 3RD FLOOR, CO-BANK TOWERS, PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033.

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2 THE ELECTORAL OFFICER TO KADATHURUTHY URBAN COOPERATIVE BANK LTD.NO. K.399, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES, VAIKOM P.O., KOTTAYAM - 696141.

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3 THE RETURNING OFFICER TO KADUTHURUTHY URBAN COOPERATIVE BANK LTD. NO. K.399, OFFICE INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, VAIKOM P.O., KOTTAYAM - 696141.

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4 KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD. NO.K.399, REPRESENTED BY GENERAL MANAGER, KADUTHURUTHY P.O., KOTTAYAM. PIN- 686604.

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5 V.J.POULOSE, VADAKKEYATTATH, PERUVA P.O., KOTTAYAM - 686610.

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BY ADVS. SRI.R.SREEHARI FOR R5 SRI.T.SHIHABUDHEEN SRI.SACHIN VYAS SRI BIMAL K.NATH, SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2019, ALONG WITH WP(C).865/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C) Nos.602 & 865 of 2019

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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MONDAY ,THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940

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WP(C).No. 865 of 2019

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PETITIONER/S:

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MANAGING COMMITTEE OF THE KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD. NO.K.399, REPRESENTED BY CHAIRMAN, KADUTHURUTHY P.O., KOTTAYAM.

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BY ADV. SRI.C.P.SABARI

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RESPONDENT/S:

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1 THE STATE CO-OPERATIVE ELECTION COMMISSION, REPRESENTED BY ELECTION COMMISSIONER, 3RD FLOOR, CO-BANK TOWERS, PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM- 695033.

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2 THE ELECTORAL OFFICER TO KADUTHURUTHY URBAN COOPERATIVE BANK LTD.NO.K.399, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES, VAIKOM P.O., KOTTAYAM- 696141.

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3 THE RETURNING OFFICER TO KADUTHURUTHY URBAN COOPERATIVE BANK LTD.NO.K.399, OFFICE INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, VAIKOM P.O., KOTTAYAM696141.

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4 V.J.POULOSE, VADAKEEYATTATH, PERUVA P.O, KOTTAYAM- 686610. R1 TO R3 BY SR. GOVT PLEADER SRI. BIMAL K. NATH BY ADV. SRI.T.SHIHABUDHEEN-R4

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2019, ALONG WITH WP(C).602/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C) Nos.602 & 865 of 2019

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JUDGMENT

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W.P.(C)No.602 of 2019:- The petitioners, who are members of

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Kaduthuruthy Urban Co-operative Bank Ltd., the 4^th respondent herein, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the rules made thereunder, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 communication dated 04.01.2019 issued by the 2^nd respondent Electoral Officer/Assistant Registrar of Co-operative Societies and Ext.P6 order dated 04.01.2019 issued by the said respondent. The petitioners have also sought for a writ of mandamus commanding respondents 1 to 3 to put the votes of 1842 members in the list appended to Ext.P6 order of the 2^nd respondent in a separate box, to count the same and to declare the results of the election to the Managing Committee of the Society, which is scheduled to be held on 27.01.2019, in terms of Ext.P1 election notification dated 12.12.2018 issued by the 1^st respondent State Co-operative Election Commission. The further relief sought for is a declaration that the reasons stated in Exts.P4 and P6 to remove 1842 members of the Society from the final voters list is against all

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W.P(C) Nos.602 & 865 of 2019

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common sense and against Ext.P16 order of the Division Bench of this Court dated 20.12.2018 in W.A.No.2477 of 2018. The interim relief sought for in this writ petition is stay of Exhibit P6 order or in the alternative directing respondents 1 to 3 to put the votes of 1842 members in the list appended to Ext.P6 order of the 2^nd respondent in a separate box, count the same and declare the results, pending disposal of the writ petition.

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W.P.(C)No.865 of 2019:- The Managing Committee of the

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4^th respondent Society in W.P.(C)No.602 of 2019 has filed this writ petition seeking a writ of certiorari to quash Ext.P4 communication dated 04.01.2019 and Ext.P6 order dated 04.01.2019 of the 2^nd respondent Electoral Officer/Assistant Registrar of Co-operative Societies and seeking a writ of mandamus commanding respondents 1 to 3 to permit 1842 members in the list appended to Ext.P6 order of the 2^nd respondent to exercise their voting right as the Committee had quorum when they were admitted, excluding the presence of Sri. Sunu George. The petitioner has also sought for other consequential reliefs, similar to those sought for in W.P. (C)No.602 of 2019. The interim relief sought for in this writ petition is an order to stay Exts.P4 and P6 and issue a direction to

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W.P(C) Nos.602 & 865 of 2019

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respondents 1 to 3 to permit 1842 members in the list appended to Exhibit P6 order of the 2^nd respondent to exercise their voting right in the election scheduled to be held on 27.01.2019, pending disposal of the writ petition.

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The 5^th respondent in W.P.(C)No.602 of 2019, who is the 4^th respondent in W.P.(C)No.865 of 2019, has filed counter affidavits in the respective writ petitions, opposing the reliefs sought for.

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On 22.01.2019, this Court passed an order and paragraphs 5 to 11 and the last paragraph of the said order reads as follows:

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“5. The learned counsel for the petitioners in the respective writ petitions would contend that the only reason stated in Exts.P4 and P6 to remove 1842 members from the voters list prepared for election to the Managing Committee of the Society, which is scheduled to be held on 27.01.2019, is that Sri. Sunu George, whose election as a member of the Managing Committee of the Society stands set aside by the award dated 24.04.2018 in A.R.C.No.24 of 2014 of the Co-operative Arbitration Court, Thiruvananthapuram (Ext.R5(c) order in W.P.(C)No.602 of 2019) had attended the meeting of the Managing Committee in which it was decided to admit those members. The learned counsel would also point out that

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W.P(C) Nos.602 & 865 of 2019

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the notice issued by the Joint Registrar of Co-operative Societies dated 03.12.2018, to show cause why proceedings under Section 32(1)(b) of the Kerala Cooperative Societies Act shall not be initiated against the Managing Committee for permitting Sri. Sunu George to attend the meetings of the Managing Committee, despite the aforesaid award passed by the Co-operative Arbitration Court, is the subject matter of challenge in W.P. (C)No.39958 of 2018 filed by the Board of Directors of the Society. In W.A.No.2477 of 2018, arising out of the interim order dated 18.12.2018 in that writ petition, further proceedings pursuant to the notice issued under Section 32(1) of the Act (Ext.P2 in W.P.(C)No.39958 of 2018) was stayed and the Division Bench has also ordered that the election shall go on as scheduled.

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Per contra, the learned Senior Government Pleader and also the learned counsel for the party respondents, placing reliance on the report dated 28.12.2018 of the 2^nd respondent Assistant Registrar, which is one submitted before the State Co-operative Election Commission (Ext.P5(a) in W.P.(C)No.602 of 2019 and Ext.P4(a) in W.P. (C)No.865 of 2019) would point out that based on the complaint dated 20.12.2018 made by the party respondent, the Assistant Registrar conducted an inspection in the Society, in which it was found that 2852 identity cards are kept in the office of the Society for issuance and that identity cards have been obtained by putting forged signatures in Form 6B register. The 2^nd respondent has also found that none of the members have

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W.P(C) Nos.602 & 865 of 2019

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signed the admission register maintained in the Society. After comparing the signature of the members in the membership application and Form 6B register, the 2^nd respondent concluded that, identity cards have been collected with forged signatures in that register.

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Having considered the submission made by the learned counsel on both sides, this Court finds that though the reason stated in Exts.P4 and P6 to exclude 1842 members from the voters list is that the meetings of the Managing Committee of the Society in which it was decided to admit those members were attended by Sri. Sunu George, whose election as a member of the Managing Committee of the Society has already been set aside by the award dated 24.04.2018 in A.R.C.No.24 of 2014, as can be seen from the report of the 2^nd respondent Assistant Registrar dated 28.12.2018, serious irregularities were detected in the maintenance of Form 6B register, admission register and also in the issuance of identity cards in Form 6A.

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During the course of arguments it is brought to the notice of this Court that the total membership of the Society is 37905. As per Exts.P4 and P6, the dispute is in respect of 1842 members in the list appended to Ext.P6 order of the 2^nd respondent.

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9. If the petitioners are having any dispute in connection with the election to the Managing Committee of the Kaduthuruthy Urban Co-operative Bank Ltd., scheduled to be held on 27.01.2019 in terms of Ext.P1 election notification, it is for them to raise such dispute before the Co-operative Arbitration Court constituted under Section

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W.P(C) Nos.602 & 865 of 2019

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70A of the Act, by invoking the statutory remedy available under Section 69 of that Act, within one month from the date of election. Clause (c) of sub-section (2) of Section 69 of the Act provides that, any dispute arising in connection with the election, the Board of Management or any Officer of the Society shall also be deemed to be a dispute for the purpose of sub-section (1) of Section 69 of the Act. Going by the Explanation to clause (c) of sub-section (2) of Section 69, a dispute arising at any stage of an election commencing from the convening of the general body meeting for the election shall be deemed to be a dispute arising in connection with the election. Rule 35A of the Rules deals with the procedure regarding conduct of election to the committee of Societies by the State Cooperative Election Commission. If that be so, any dispute in relation to preparation of final voters list by the Electoral Officer, in exercise of his powers under under sub-rule (6) of Rule 35A of the Rules, is a dispute arising in connection with that election, which can be raised before the Cooperative Arbitration Court constituted under Section 70A of the Act, by invoking the statutory remedy available under Section 69 of that Act, within one month from the date of election.

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Therefore, the right of the petitioners in the respective writ petitions or any other member of the Society to raise a dispute in relation to exclusion of 1842 members in the list appended to Ext.P6 order of the 2^nd respondent from the electoral roll prepared for the election to the Managing Committee of the Society, which is scheduled to be held on

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W.P(C) Nos.602 & 865 of 2019

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27.01.2019, can be protected by permitting those members, out of the aforesaid 1842 members in the list appended to Ext.P6 order, who have been issued with identity cards in Form 6A to cast their vote in the said election in a separate box, after proving their identity by producing any one of the documents specified in the Explanation to Rule 35A(6)(n)(ix) of the Kerala Cooperative Societies Rules. However, the votes casted by those members shall not be counted for the purpose of declaration of results.

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It is for the official respondents to file counter affidavit in the respective writ petitions.

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It is made clear that the pendency of these writ petitions will not stand in the way of any dispute being raised in connection with the election to the Managing Committee of the Society, which is scheduled to be held on 27.01.2019, in terms of election notification dated 12.12.2018 issued by the State Co-operative Election, by invoking the provisions under Section 69 of the Kerala Co-operative Societies Act, within the time limit specified therein.” (underline supplied)

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Heard the learned counsel for the petitioners, the learned Senior Government Pleader appearing for official respondents and Sri.R.Sreehari, the learned counsel appearing for the party respondent.

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It is submitted by the learned counsel for the petitioners

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W.P(C) Nos.602 & 865 of 2019

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that the election to the Managing Committee of the 4^th respondent Society was conducted on 27.01.2019 in terms of the election notification dated 12.12.2018 issued by the State Co-operative Election Commission and the elected Managing Committee has also

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taken charge on 27.01.2019. In such circumstances, this writ petition may be disposed, without prejudice to the right of any member of the Society to raise any dispute in connection with the election to the Managing Committee held on 27.01.2019, by invoking the provisions under Section 69 of the Kerala Cooperative Societies Act, within the time limit specified therein.

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Having considered the submissions made by the learned counsel for the petitioners, these writ petitions are disposed of in terms of the interim order dated 22.01.2019, without prejudice to the aforesaid right of the members of the Society.

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Sd/-

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ANIL K. NARENDRAN Judge

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okb

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//True copy// P.A. to Judge

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W.P(C) Nos.602 & 865 of 2019

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APPENDIX OF WP(C) 602/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE ELECTION NOTIFICATION DATED 12/12/2018 OF THE FIRST RESPONDENT.
EXHIBIT P2	A TRUE COPY OF THE ENDORSEMENT IN LAST PAGE OF PRELIMINARY VOTERS LIST OF THE ELECTORAL OFFICER DATED 27/12/2018 HAVING 37905 MEMBERS
EXHIBIT P3	A TRUE COPY OF THE RESOLUTION DATED 04/01/2019 OF THE BANK.
EXHIBIT P4	A TRUE COPY OF THE ORDER DATED 04/01/2019 OF THE ELECTORAL OFFICER.
EXHIBIT P5	A TRUE COPY OF THE COMPLAINT DATED 07/12/2018 OF THE FIFTH RESPONDENT.
EXHIBIT P6	A TRUE COPY OF THE ORDER DATED 04/01/2019 OF THE ELECTORAL OFFICER.
EXHIBIT P7	A TRUE COPY OF THE MINUTES OF THE MEETING DATED 31/08/2018.
EXHIBIT P8	A TRUE COPY OF THE MINUTES OF THE MEETING DATED 13/09/2018.
EXHIBIT P9	A TRUE COPY OF THE MINUTES OF THE MEETING DATED 25/09/2018.
EXHIBIT P10	A TRUE COPY OF THE MINUTES OF THE MEETING DATED 10/10/2018.
EXHIBIT P11	A TRUE COPY OF THE MINUTES OF THE MEETING DATED 20/10/2018
EXHIBIT P12	A TRUE COPY OF THE MINUTES OF THE MEETING DATED 31/10/2018.
EXHIBIT P13	A TRUE COPY OF THE MINUTES OF THE MEETING DATED 09/11/2018.
EXHIBIT P14	A TRUE COPY OF THE NEWS ITEM PUBLISHED IN DEEPIKA DAILY DATED 07/01/2019.

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W.P(C) Nos.602 & 865 of 2019

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EXHIBIT P15 A TRUE COPY OF THE ORDER DATED 20/12/2018 OF THE JOINT REGISTRAR.

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EXHIBIT P16 A TRUE COPY OF THE ORDER DATED 20/12/2018 BY THE DIVISION BENCH IN W.A.NO.2477/2018.

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RESPONDENTS' EXHIBITS:

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EXT.R5(A): A TRUE COPY OF THE REPORT SUBMITTED BY 2ND RESPONDENT TO 1ST RESPONDENT DATED 28/12/2018

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EXT.R5(B): A TRUE COPY O9F THE COMPLAINT FILED BY THE 4TH RESPONDENT TO SECOND RESPONDENT DATED 20/12/2018

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EXT.R5(C): A TRUE COPY OF THE AWARD NO. 24/2014 OF THE ARBITRATION COURT DATED 24/04/2018

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W.P(C) Nos.602 & 865 of 2019

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APPENDIX OF WP(C) 865/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE ELECTION NOTIFICATION DATED 12.12.2018 OF THE FIRST RESPONDENT.
EXHIBIT P2	A TRUE COPY OF THE ENDORSEMENT IN LAST PAGE OF PRELIMINARY VOTERS LIST OF THE ELECTORAL OFFICER DATED 27.12.2018 HAVING 37,905 MEMBERS.
EXHIBIT P3	A TRUE COPY OF THE RESOLUTION DATED 04.01.2019 OF THE BANK.
EXHIBIT P4	A TRUE COPY OF THE ORDER DATED 04.04.2019 OF THE ELECTORAL OFFICER.
EXHIBIT P5	A TRUE COPY OF THE COMPLAINT DATED 07.12.2018 OF THE FOURTH RESPONDENT.
EXHIBIT P6	A TRUE COPY OF THE ORDER DATED 04.01.2019 OF THE ELECTORAL OFFICER.
EXHIBIT P7	A TRUE COPY OF THE MINUTES OF THE MEETING DATED 31.08.2018.
EXHIBIT P8	A TRUE COPY OF THE MINUTES OF MEETING DATED 13.09.2018.
EXHIBIT P9	A TRUE COPY OF THE MINUTES OF MEETING DATED 25.09.2018.
EXHIBIT P10	A TRUE COPY OF THE MINUTES OF MEETING DATED 10.10.2018.
EXHIBIT P11	A TRUE COPY OF THE MINUTES OF MEETING DATED 20.10.2018.
EXHIBIT P12	A TRUE COPY OF THE MINUTES OF MEETING DATED 31.10.2018.
EXHIBIT P13	A TRUE COPY OF THE MINUTES OF MEETING DATED 09.11.2018.
EXHIBIT P14	A TRUE COPY OF THE NEWS ITEM PUBLISHED IN

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W.P(C) Nos.602 & 865 of 2019

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DEEPIKA DAILY DATED 07.01.2019.

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EXHIBIT P15 A TRUE COPY OF THE ORDER DATED 20.12.2018 OF THE JOINT REGISTRAR. EXHIBIT P16 A TRUE COPY OF THE ORDER DATED 20.12.2018 BY THE DIVISION BENCH IN W.A.NO.2477/2018.

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RESPONDENTS' EXHIBITS:

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EXT.R4(A): A TRUE COPY OF THE REPORT SUBMITTED BY 2ND RESPONDENT TO 1ST RESPONDENT DATED 28/12/2018

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EXT.R4(B): A TRUE COPY OF THE COMPLAINT FILED BY THE 4TH RESPONDENT TO SECOND RESPONDENT DATED 20/12/2018

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EXT.R4(C): A TRUE COPY OF THE AWARD NO. 24/2014 OF THE ARBITRATION COURT DATED 24/04/2018

Managing Committee of the Kaduthuruthy v. the State Co-Operative Election Commission

Case brief

What is this about?

What did the court decide?

Managing Committee of the Kaduthuruthy v. the State Co-Operative Election Commission

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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