Anil Akkara v. State Co-operative Election Commission & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 10[TH] DAY OF APRIL 2023 / 20TH CHAITHRA, 1945** ## **WP(C) NO. 8955 OF 2023** ## **PETITIONER:** ANIL AKKARA,AGED 50 YEARS S/O. A.V. ANTONY, RESIDING AT AKKARAPATTIAKKAL HOUSE, ROSE BUILDING, PURANATTUKARA P.O., THRISSUR DISTRICT, PIN - 680510 BY ADVS. NISHA GEORGE GEORGE POONTHOTTAM (SR.) ANSHIN K.K 1 THE STATE CO-OPERATIVE ELECTION COMMISSION 3RD FLOOR, CO BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN - 695033 2 THE ELECTORAL OFFICER,ASSISTANT REGISTRAR (SC/ST), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ELECTION TO THE ADAT FARMERS SERVICE CO-OPERATIVE BANK LTD.NO. R 689, THRISSUR DISTRICT, PIN - 680551 3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THRISSUR DISTRICT, PIN - 680001 4 THE PART- TIME ADMINISTRATOR,THE ADAT FARMERS SERVICE COOPERATIVE BANK LTD.NO.R.689, THRISSUR DISTRICT, PIN - 680551 5 THE ADAT FARMERS SERVICE CO-OPERATIVE BANK LTD.NO. R 689 THRISSUR DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR., PIN - 680551 BY ADVS.C.M.NAZAR P.C SASIDHARAN ## **RESPONDENTS:** ## **OTHER PRESENT:** SRI. P P THAJUDHEEN (SPL GP), THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.8955/2023 2 ## **JUDGMENT** The petitioner is a member of the 5th respondent bank - a society registered under the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as ‘the Act’). He is also a former member of the Kerala Legislative Assembly. Elections to the Managing Committee of the 5th respondent have been notified to be held on 16.04.2023. The petitioner has approached this Court praying _inter-alia_ for a writ of _certiorari_ to quash Ext.P.1 election notification, for directions to prepare a proper voters list and for a declaration that members with any identity card issued by the 5th respondent, together with any other identity card as provided in the explanation to Rule 35A(6)(x) of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as ‘the Rules’) must be allowed to cast their votes. 2. Sri. George Poonthottam learned Senior Counsel appearing for the petitioner on the instructions of Adv.Nisha George would contend that the 5th respondent is a society which provides through its by-laws that it shall have a ‘ _representative general body_ ’ as contemplated by Section 27(2) of the Act. He refers to the provisions of Sections 27 and 28 of the Act and to Rules 34, 34A and 35A of the Rules to contend that the holding of W.P.(C)No.8955/2023 3 elections to the Managing Committee and the Representative General Body must be simultaneous. It is submitted that holding elections to the Managing Committee alone is, therefore, not in accordance with the Act and the Rules. It is submitted the provisions admit of no ambiguity, and elections must be simultaneously held to the Managing Committee and the Representative General Body. It is submitted that where a certain thing has to be done in a particular manner, it has to be done in that manner or not at all. The oft-quoted principle flowing from the _ratio_ in _**Nazir Ahamed**_ **v.** _**King Emperor**_ , AIR 1936 PC 253 is relied on to buttress this contention. Mr. Poonthottam refers to the notification issued in respect of another society and submits that in respect of that society, election to the Managing Committee and the representative general body is proposed simultaneously. He points out with reference to Ext P.5 reply of the Hon’ble Minister for Co-operation on the floor of the Assembly that after the removal of 4464 members (which is under challenge and is now pending before the Supreme Court) the voters list now prepared cannot have 20360 Members. It is submitted that several ineligible persons, including nearly 846 dead persons, have been included in the voter's list, and almost 1000 members have been illegally enrolled by the Administrator who has been in charge of the affairs of the 5th respondent since 12.04.2017. The judgment W.P.(C)No.8955/2023 4 of Chandrasekhara Menon.J. in _**Devassy v. Asst. Registrar of Cooperative Societies**_ ; 1976 KLT 40 is relied on to contend that a proper voters list is _sine qua non_ for a proper election, and where such a list is not prepared, relief can be granted under Article 226 of the Constitution of India. It is submitted that the stipulation in Ext.P.1 notification that only members with Form 6A identity cards issued after 01.01.2021 will be allowed to vote is illegal as the identity cards issued earlier have not been cancelled. Reference is made to Ext.P7 reply given by the then Hon’ble Minister for Co-operation to a question raised by the petitioner in the 22nd Legislative Assembly, stating that previously issued identity cards have not been cancelled. It is submitted that despite request, a copy of the preliminary voter’s list has not been made available to the petitioner. It is submitted that such refusal takes away the right of the petitioner to make an effective objection to the preliminary voter’s list. 3. Sri.P.P Tajuddin, Learned Special Government Pleader for the Co-operative Department, Sri. C.M Nazar, the learned counsel appearing for the State Co-operative Election Commission and Sri.P.C Sasidharan, the Learned Counsel appearing for the 5th Respondent, are unanimous in contending that there is absolutely no merit in the contentions taken on W.P.(C)No.8955/2023 5 behalf of the petitioner. Sri.P.C Sasidharan would submit that the writ petition is not maintainable. He states that the petitioner will have to opt for remedies under the statute after the election is completed. He relies on the judgments in _**Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra**_ , (2001) 8 SCC 509; _**Shaji K Joseph v. V.Viswanath & ors.,**_ (2016) 4 SCC 429; _**Ajitha Kumari & ors v. Priyadarsini Vanitha Coir Vyavasaya Co-operative Society Ltd.,**_ 2018 KHC 528 and on _**Denny V.P v. Joint Registrar of Co-operative Societies,**_ 2019 KHC 4954 in support of his contention that the Writ Petition is not maintainable and that any complaint regarding voters list etc. has to be taken up in accordance with the provisions of the statute after the elections are completed. He relies on the judgment in _**VSSC Employees Cooperative Society v. Registrar & ors**_ , 1993 KHC 234 to contend that without an identity card as mandated by the Rules, no person can exercise the right of franchise. He also relied on _**Bhaskaran Pillai K v. Nediyavila Milk Producers co-operative Society & anr.**_ , 2008 (4) KHC 438 to contend that no member can insist that a draft of the voter's list must be shared with him and that the mandate of the Rules is only to publish the same by affixture on the Notice Board. It is contended that the W.P.(C)No.8955/2023 6 provisions of the Act, which set out the procedure for conducting elections to the representative general body and the Managing Committee, are clearly independent provisions and elections to the Managing Committee of a society, [the by-laws of which provide for the constitution of a representative general body] are clearly not dependant on the conduct of election to the representative general body and _vice-versa._ It is submitted that the elections conducted to the Managing Committee of the 5th respondent society in 2014 also did not provide for the simultaneous conduct of the election to the representative general body. It is submitted that where the provisions do not spell out a consequence of non-compliance of the provisions which contemplate a simultaneous election to the representative general body, the provisions can only be considered directory and not mandatory. Reference is made in this regard to the judgment of a learned single judge of this Court in W.P (C) 31124 of 2022. The Learned Special Government Pleader for the Co-operative Department and the Learned Standing Counsel for the Election Commission have endorsed and reiterated the contentions of Sri. P.C Sasidharan. 4. I have considered the contentions. The respondents contend that the writ petition is not maintainable and that the grievances, if any, of the petitioner will have to be adjudicated after the election is completed and W.P.(C)No.8955/2023 7 in the manner contemplated by the provisions of the Act. However, I am of the view that the question as to whether Ext.P1 election notification is to be quashed on account of the fact that the said notification does not contemplate a simultaneous election to the representative general body of the 5[th] respondent Society is a matter that can be examined in these proceedings. I take this view on account of the fact that if this Court were to find that the failure to hold elections to the representative general body simultaneously with the election to the Managing Committee is bad, then Ext.P1 election notification and all proceedings taken thereon are liable to be quashed. Further, this is not a matter that may fall within the scope of an election petition as contemplated by the provisions of the Act. Therefore, that question can be considered in these proceedings. 5. Section 27 of the Act provides that the final authority of the Society shall vest in the General Body of its members subject to the provisions of the Act, Rules and the bye-laws. Sub-section (2) of Section 27 of the act, read with Rule 34 of the Rules provides that where the area of operation of any Society is the area comprised in more than one Taluk or where the number of members of the Society is not less than 1000, the Society could, through its bye-laws, provide for the constitution of a smaller body to exercise the powers of the General Body as may be specified in the W.P.(C)No.8955/2023 8 bye-laws except the power to conduct the election of members of the Managing Committee. Such a smaller body is referred to as a representative general body. The provisions of Section 28 of the Act deals with the constitution of a Managing Committee. The learned senior counsel for the petitioner has placed great emphasis on the fact that sub-section (1) of Section 28 requires the General Body to constitute the Managing Committee _'in accordance with the bye-laws_ '. It was the submission that the words _'in accordance with the bye-laws'_ have great significance and where the bye-laws provide for the constitution of a representative general body, the election to the Managing Committee can also be only in accordance with the provisions contained in the bye-laws which in this case provide for the constitution of a representative general body. 6. Rule 34 of the Rules deals with the representative general body and its constitution. Sub-rule (2) of Rule 34A provides that the Committee shall meet at least 60 days in advance of the date of expiration of its term, and pass a resolution, fixing the date, time and place for the conduct of election to the new representative general body along with election to the Managing Committee, if the Society has a representative general body. The provisions of Rule 35A appear to indicate that the elections to the representative of the General Body are to be held simultaneously with the W.P.(C)No.8955/2023 9 election to the Managing Committee, and the provisions of Rule 34(4) provide that the term of the representative general body shall be coterminus with that of the elected Committee. However, the learned counsel appearing for the respondents appear to be right in contending that there is nothing in these provisions or in the provisions of Rule 35A dealing with the procedure for conducting elections to the Managing Committee to indicate that the election to the Managing Committee without conduct of election to the representative general body would vitiate the election to the Managing Committee. The respondents are, therefore, right in contending that the provisions which require the conduct of election to the representative general body simultaneously with the election to the Managing Committee are only directory and not mandatory. In the judgment in W.P.(C)No.31124/2022, this Court was considering the question as to whether a declaration as contemplated by Section 29(i)(ce) of the Act would be mandatory. In paragraph 8 of that judgment, this Court held as follows:- _“8. The other important factor is that the statute does not provide any consequence for failure to declare the due date of election. It has been held in a catena of decisions that a provision ought to be treated as directory when no consequence is provided (see_ _**Administrator, Municipal Committee Charkhi Dadri v. Ramji Lal Bagla [(1995) 5 SCC 272].** Further, as held in_ W.P.(C)No.8955/2023 10 _**Amardeep Singh v. Harveen Kaur [(2017) 8 SCC 746],** for determining whether a provision is mandatory or directory, the language alone is not decisive and court must have regard to context, subject matter and object of the provision. Undoubtedly, the object of the Co-operative Societies Act is to organise Co-operative Societies as selfgoverning democratic institutions. On a purposive interpretation of the provision, the mandate of Section 28 read along with Rule 35A(i) outweighs the declaration under Section 29(i)(ce). Being so, the question as to whether the primarily legislation will prevail over the subordinate legislation loses its significance.”_ I am in respectful agreement with the view taken by the learned Single Judge. The provisions of Section 27 provide for the constitution of a representative general body. The provisions of Rule 34, which deal with the representative general body and its constitution and the provisions of Rule 34A, which deals with the procedure for conducting election to the representative general body, do not provide for any consequences if the election to the representative general body is not held simultaneously with the election to the Managing Committee of the Society. In other words, even though the provisions referred to above (Rules 34 & 34A of the Rules) and the provisions of Clause 20(3) of the bye-laws indicate that the elections must be simultaneous, the failure to hold elections simultaneously does not invalidate the election to the Managing Committee. The contention on the basis of the principle that where a statute contemplates W.P.(C)No.8955/2023 11 the doing of a thing in a particular manner, it must be done in that matter or not at all, has to be rejected, as I have already found that the concerned provisions are only directory or not mandatory. Therefore, the contention raised by the petitioner that the failure to notify the election to the representative general body along with the election to the Managing Committee of the Society vitiates Ext.P.1 notification cannot be accepted. 7. The next question to be considered is the complaint raised regarding the voter's list. The petitioner has a complaint that a copy of the preliminary voter's list was not supplied to him. A reading of the bye-laws does not suggest that the petitioner is entitled to a copy of the preliminary voter's list. Rule 35A (4) of the Rules does not provide that a copy of the preliminary voter's list must also be supplied on request. The judgment of this Court in _**Bhaskaran Pillai. K. (supra)**_ indicates that the preliminary list of voters needs to be published by affixture on the Notice Board of the Society alone. The other complaints regarding the inclusion of ineligible persons, including members allegedly given membership by the Administrator, the inclusion of dead persons etc. are clearly matters which cannot be adjudicated at this stage in a writ petition under Art. 226 of the Constitution of India. In _**Shri Sant Sadguru Janardan Swami (supra),**_ it was held:- W.P.(C)No.8955/2023 12 _“12. In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate, if aggrieved, by means of an election petition before the Election Tribunal.”_ The judgment of the Supreme Court _**Shri Sant Sadguru Janardan Swami (supra)**_ and the decisions of this Court in _**Ajith Kumar and others (supra)**_ and _**Denny V.P, (supra)**_ clearly indicate that the complaints regarding the voter's list can only be adjudicated in a duly constituted election petition as contemplated by the provisions of the Act/Rules. 8. The objection raised regarding the requirement of an electoral identity card issued after 01.01.2021 cannot be accepted as it is clear from Ext.R4(c) that as early as 12.8.2020, a decision had been taken to issue new electoral identity cards and this decision has not been challenged. Therefore, the contention raised that there cannot be an insistence on electoral cards, which came into force on 1.1.2021 to be able to cast votes W.P.(C)No.8955/2023 13 cannot be said to be arbitrary or illegal. Therefore, this writ petition fails, and it is accordingly dismissed. However, it is clarified that the observations and findings in this judgment shall not prevent the petitioner or any other person who may be entitled to maintain an election petition, in accordance with the provisions contained in the Act/Rules, from raising all disputes before the competent forum. It is also made clear that if such a dispute is raised, the same shall be considered and disposed of untrammelled by any observations contained in this judgment. Sd/- **GOPINATH.P. JUDGE.** acd **APPENDIX OF WP(C) 8955/2023** |PETITIONER EXHIBITS|| |---|---| |Exhibit-P1|TRUE COPY OF THE ELECTION NOTIFICATION PUBLISHED IN| ||MALAYALA MANORAMA DAILY NEWSPAPER DATED 23.02.2023| ||SCHEDULING THE ELECTION TO THE MANAGING COMMITTEE OF| ||THE 5TH RESPONDENT SOCIETY.| |Exhibit-P2|TRUE COPY OF THE RELEVANT PAGES OF THE BYE-LAW OF| ||THE 5TH RESPONDENT BANK PROVIDES REPRESENTATIVE| ||GENERAL BODY| |Exhibit-P3|TRUE COPY OF THE RELEVANT PORTION OF THE BYE-LAWS OF| ||THE 5TH RESPONDENT BANK REQUIRING THE MANAGING| ||DIRECTOR TO SUPPLY A COPY OF THE MEMBERS' LIST TO| ||ANY MEMBER OF THE SOCIETY| |Exhibit-P4|TRUE COPY OF THE REPRESENTATION DATED 10.03.2023| ||SUBMITTED BY THE PETITIONER BEFORE THE 1ST| ||RESPONDENT| |Exhibit-P4(a)|TRUE COPY OF THE REPRESENTATION DATED 10.03.2023| ||SUBMITTED BY THE PETITIONER BEFORE THE 2ND| ||RESPONDENT| |Exhibit-P4(b)|TRUE COPY OF THE REPRESENTATION DATED 10.03.2023| ||SUBMITTED BY THE PETITIONER BEFORE THE MANAGING| ||DIRECTOR OF THE 5TH RESPONDENT BANK| |Exhibit-P5|TRUE COPY OF THE REPLY DATED 29.11.2018 GIVEN IN THE| ||KERALA LEGISLATIVE ASSEMBLY| |Exhibit-P6|TRUE COPY OF THE REPRESENTATION DATED 06.03.2023| ||SUBMITTED BY THE PETITIONER BEFORE THE 3RD| ||RESPONDENT POINTING OUT ILLEGAL INDUCTION OF MEMBERS| ||IN THE SOCIETY BEFORE THE 3RD RESPONDENT| |Exhibit-P7|. TRUE COPY OF THE REPLY DATED 21.01.2021 GIVEN IN| ||THE KERALA LEGISLATIVE ASSEMBLY| |RESPONDENT EXHIBITS|| |Exhibit R4(a)|The true copy of the objection preferred by the| ||petitioner before the Electoral Officer dated| ||10/3/2023| |PETITIONER EXHIBITS|| |Exhibit-P8|TRUE COPY OF THE LIST OF DECEASED MEMBERS OF THE 5TH| ||RESPONDENT BANK| |RESPONDENT EXHIBITS|| |Exhibit R4(b)|The true copy of the acknowledgement dated| ||10.03.2023 evidencing the circulation of draft| ||voters list| |Exhibit R4(c)|The true copy of the proceedings of the Joint| ||Registrar of Co-operative Societies, Thrissur dated| 12/8/2020 Exhibit R4(d) The true copy of the notice dated 21/12/2020 published in the Mathrubhumi news daily PETITIONER EXHIBITS Exhibit-P9 A true copy of one such notification No.E(2)4332/2021/S.C.E.C dated 17.11.2021 issued by the State Co-operative Election Commission Exhibit-P10 True copy of the complaint dated 16.03.2023 submitted by the petitioner to the Electoral Officer along with the list submitted before the Electoral Officer Exhibit-P11 True copy of the reply given on 17.03.2023 before the Legislative Assembly. RESPONDENT EXHIBITS Exhibit R4(e) TRUE COPY OF THE ELECTION NOTIFICATION DATED 29/1/2014