IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18330 of 2008(F)
1. T.V.C. KUNHAMMAD HAJI,S/O.MOIDEEN
... Petitioner
2. V.A.C. IBRAHIM HAJI,S/O.AMMAD HAJI
Vs
1. NUSRATHUL ISLAM SAMGHAM DEVARKOVIL,
... Respondent
2. K.T.ABOOBUCKER,S/O.THARUVAI, AGED 65
3. T.H.AHAMMAD,S/O.MOIDU HAJI,AGED 54 YEARS
4. ASSISTANT EDUCATION OFFICER,KUNNUMMAL
5. DEPUTY DIRECTOR, EDUCATION, KOZHIKODE
For Petitioner :SRI.B.KRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :18/06/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.18330 of 2008
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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
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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
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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
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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.