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

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 WA NO. 782 OF 2023** **AGAINST THE ORDER/JUDGMENT WP(C) 8955/2023 OF HIGH COURT OF KERALA APPELLANT/S:** 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 ARUN CHANDRAN GEORGE POONTHOTTAM (SR.) ANSHIN K.K ## **RESPONDENT/S:** 1 THE STATE CO-OPERATIVE ELECTION COMMISSION 3RD FLOOR, CO BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN CODE: -695 033, 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 COOPERATIVE 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 CO-OPERATIVE BANK LTD.NO.R.689, THRISSUR DISTRICT, PIN – 680551 **WA NO. 782 OF 2023** **2** 5 THE ADAT FARMERS SERVICE CO-OPERATIVE BANK LTD.NO. R 689 THRISSUR DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR, PIN - 680551 BY ADV C.M.NAZAR ## **OTHER PRESENT:** SRI P C SASIDHARAN SR GP SRI T K VIPINDAS SPL GP CO-OP SRI PP THAJUDEEN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WA NO. 782 OF 2023** **3** ## **JUDGMENT** ## Amit Rawal, J. The present writ appeal is directed against the judgment of the Single Bench dated 10.4.2023 whereby the writ petition filed by the appellant challenging the election program promulgated by the Co-operative election commission for holding the election of the Adat Farmers Service Co-operative Bank Ltd scheduled for 16.4.2023 has been dismissed. 2. Appellant/petitioner is a member of the Society. The previous elected body of the Society was superseded by the order of the Registrar as per the provisions of Section 32 of the Kerala Cooperative Societies Act entailing into appointment of the Arbitrator. At the time of supersession there was only Managing Committee and no other Committee like the representative general body which is being attempted to be carved out by taking the aid of the provisions of clause 20 of the bye laws of the Society. On promulgation of the election program, petitioner was aggrieved of the aforementioned Act that the resolution adopted by the Co-operative Society was only in respect of holding election of the Managing Committee and not representative general body allegedly required under the provisions of Section 27 of the Co-operative Societies Act. Until and unless the elections of the representative general body is not held along with **WA NO. 782 OF 2023** **4** the Managing Committee the entire process would be vitiated in law. It is in that background the doors of this Court was knocked vide W.P.(C) No.8955 of 2023. The Society contested the matter and referred the provisions of sub Section 2 of Section 27 and contended that it is not mandatory for the Society to hold the election of representative general body as in the earlier regime there was no elected representative general body. Even if the members of the Society are more than 20,000 or are falling within the jurisdiction of two taluks. On appreciation of the provisions of the law and as well as the judgment cited at bar, learned Single Judge dismissed the writ petition. 3. Learned counsel appearing on behalf of the appellant submitted that the word 'may' used in sub Section 2 of Section 27 is required to be construed as 'shall'. Concededly, the Society has more than 20,000 members and situated in more than two taluks. In the absence of the said procedure the entire election process is vitiated in law. 4. On the other hand, learned counsel appearing on behalf of the respondent submitted that the writ petition was not maintainable in view of the judgment of the Hon'ble Supreme Court whereby it has been categorically held that as and when the election program is notified, the remedy for the affected party is to file **WA NO. 782 OF 2023** **5** election petition and not the writ petition. The said objection was accepted by the learned Single Judge. No contrary law has been cited in the judgment aforementioned and therefore the writ petition is liable to be dismissed. 5. We have heard the learned counsel for the parties and appraised the paperbook. Section 27 and 28 of the Co-operative Societies Act and Rule 20 of the bye laws are reproduced herein below. **Section 27 of the KCS Act: Final authority in a Society:** (1) Subject to the provisions of this Act, the rules and the bye-laws, the final authority of a society shall vest in the general body of its members: Provided that nothing contained in this sub-section shall affect the exercise by the committee or any officer of a society of any power conferred on such committee or such officer by this Act or the rules or the bye-laws. - (2) Notwithstanding anything contained in sub section (1), where the area of operation of a society is not less than such area as may be prescribed, or where the society consists of not less than such number of members as may be prescribed, the society may provide by an amendment of its bye-laws for the constitution of a smaller body consisting of such number of the members of the society as may be prescribed, elected in accordance with the rules (hereinafter referred to as the representative general body) to exercise all or any of the powers - of the general body as may be specified in the bye laws except the power to conduct election of members of the committee, and any reference, by whatever form of words, in this Act to the general body or a meeting thereof shall, where a representative - general body has been constituted under this sub section, have effect in respect of the powers exercisable by the representative general body as if such reference were a reference to the representative general body or a meeting thereof, as the case may be: **WA NO. 782 OF 2023** **6** Provided that the representative general body shall not alter any provision in the bye-laws relating to its constitution or powers. (3) The exercise of any power by the representative general body shall be subject to such restrictions and conditions as may be specified in the rules or the bye-laws. **Section 28 of the KCS Act: Appointment of Committee** :1) The general body of a society shall [1] [ "constitute a committee, for a period not exceeding[2] [five years]"] in accordance with the bye-laws and entrust the management of the affairs of the society to such committee: Provided that, in the case of a society registered after the commencement of this Act, the persons who have signed the application to register the society may appoint a committee to conduct the affairs of the society for a period of three months from the date of registration or for such further period as the Registrar may consider necessary; but the committee appointed under this proviso shall cease to function as soon as a committee has been constituted in accordance with the bye-laws: [3] ["Provided further that where the bye-laws so provide, the Government or the Registrar may nominate all or any of the members of the first committee including the president or chairman, for a period not exceeding [4] [twelve months]"] [5] ["Provided also that a Committee constituted prior to the commencement of the Kerala Co-operative Societies (Amendment) Act 1999, shall be eligible to continue for a period of five years: Provided also that the above proviso is not applicable to a committee where the committee has passed a resolution before the commencement of the Kerala Co-operative Societies (Amendment) Act, 1999, for the conduct of election thereof."] [6] [(1A) Notwithstanding anything contained in the bye-laws of a society, the maximum number of members of the committee shall not exceed fifteen, in the case of primary co-operative societies., and twenty-five in the case of all other types of co-operative societies. (1B) Notwithstanding anything contained in the bye-laws of any Federal Co-operative Society, the number of individuals in the **WA NO. 782 OF 2023** **7** society and the Committee thereof shall not exceed twenty five percent of the total number of members in the society or in the Committee, as the case may be."]. (2) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for appointment as, or for being, a member of a committee- (a) if he is member of the committee of another society of the same type; or (b) if he is member of the committees of two or more societies of a different type or different types: Provided that nothing contained in this sub-section shall be deemed to disqualify a person for election as, or for being, a delegate of a society (3) Nothing contained in clause (a) of sub-section (2) shall be deemed to disqualify a member of the committee of a society for appointment as, or for being, a member of the committee of the apex or central society of the same type: (4) Provided that no member of a committee shall be the president or chairman of more than one society of the same type. (4) The members of a committee may be paid honorarium at such rates as may be prescribed. **Rule 20 of the bye laws:20.** (1) (a) There shall be a Representative General Body in the Bank for the purposes which are stipulated in Section 27 (2), (3) of the KCS Act The quorum for the Representative General Body meeting shall be One-Third of the total number of Members in the Representative General Body (b) The Representative General Body shall have all other powers except the powers which are mentioned below. (1) Elect members to the Board of Directors (2) To remove elected members of the Board of Directors (3)Determine the structure and powers of the Representative General Body **WA NO. 782 OF 2023** **8** (4) Elect Representative General Body members. (5) To remove elected members from the Representative General Body (6)To remove a member (2) Below mentioned persons shall be included in the Representative General Body Meeting (a) All members of the Managing Committee (b)Representatives of individual members (3) A list of members of the bank should be prepared for each ward separately for electing representatives to the Representative General Body. Members of each ward will be divided into constituencies of 200 members respectively and the members in each ward after the division should be considered as a new constituency. One representative should be selected from each constituency. The representative so elected must be a member of that constituency and only the members of the respective constituencies are empowered to elect the said representative. The election to the members of the Representative General Body shall be conducted along with the election to the Board of Directors as stipulated in Rule 35 of the Co-operative societies Act. (4) As per the Amendment in the Co-operative Societies Act on 01.01.2000, sub-section 28(2) (3) provides that the term of the present Representative General Body and any subsequent Representative General Body of the bank shall be for 5 years, which is same as that of the term of the Board of Directors and this amendment is also applicable to the present Representative General Body. 6. On perusal of the sub Section 2 of Section 27, it is evident that the Society is not mandatorily enjoined upon an obligation to cause an amendment of its bye laws for constitution of a smaller body consisting of such number of members of the Society to be **WA NO. 782 OF 2023** **9** called as a Representative General Body. Be that as it may, the Society pursuant to the aforementioned provisions, inserted clause 20 in the bye laws but in the resolution communicated to the Cooperative Election Commissioner did not intent to bifurcate the Managing Committee by constituting Representative General Body. There is no challenge to the said resolution. Section 28 of the KCS Act, prescribes the procedure for appointment of the representative of the General Body. Society had before supersession in the year 2014 did not constitute any Representative General Body except for the Managing Committee. It is in that background, had passed a resolution in sending intimation to Election Commissioner for holding the election of Managing Committee. 7. The law with regard to maintainability of the writ petition as and when the election program is notified is no longer res integra as per the findings rendered in the judgment **Shaji K. Joseph v. V. Viswanath and Others (2016(2) KHC 33) and Shri Sant Sadguru Janardan Swami (moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another v. State of Maharashtra and Others (2001 KHC 1667).** The relevant portion of the same reads as under: **Shaji K. Joseph (supra)** Para 14: In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started **WA NO. 782 OF 2023** **10** upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to here in above clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court’s order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election. **Shri Sant Sadguru Janardan Swami** (supra) Para 12 and 13: In view of our finding that preparation of the electoral roll is 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 appellant to challenge the election of returned candidate, if aggrieved, by means of an election petition before the election tribunal. 13. In that view of the matter, we are in agreement with the view taken by the High Court that the appellant having an **WA NO. 782 OF 2023** **11** alternative remedy, the writ petition deserved dismissal. Learned Single Judge examined the aforementioned provisions in extenso and did not accept the contention of the petitioner. We agree with the findings rendered by the learned Single Judge to the aforementioned extent. No contrary law has been cited to form different opinion regarding the maintainability of the writ petition. Accordingly, the writ appeal sans merit and dismissed. **SD/-** **AMIT RAWAL JUDGE** **SD/-** sab **C.S. SUDHA JUDGE**