B.R. Raju v. Kerala State Co-operative Election Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY,THE 03RD DAY OF JANUARY 2019 / 13TH POUSHA, 1940** ## **WP(C).No. 44 of 2019** ## **PETITIONER:** **B.R. RAJU, AGED 52 YEARS, S/O.BHASKARAN, AMMAVEEDU, KADINAMKULAM, PUTHENKURICHI, THIRUVANANTHAPURAM-695 303.** **BY ADVS.SRI.JACOB SEBASTIAN SMT.ANU JACOB SRI.K.V.WINSTON** ## **RESPONDENTS:** - **1 KERALA STATE CO-OPERATIVE ELECTION COMMISSION, FOURTH FLOOR, STATE CO-OPERATIVE BANK TOWERS, VIKAS BHAVAN P.O., TRIVANDRUM-695 033.** - **2 KERALA STATE CO-OPERATIVE HOUSING FEDERATION LTD. NUMBER 4330, KALOOR, KOCHI-682 017.** - **3 THE RETURNING OFFICER FOR THE ELECTION TO THE MANAGING COMMITTEE OF KERALA STATE CO-OPERATIVE HOUSING FEDERATION LTD. (ASSISTANT REGISTRAR (PLANNING), OFFICE OF THE JOINT REGISTRAR (GENERAL) ERNAKULAM-682 017).** - **4 MARIANAD HOUSE BUILDING CO-OPERATIVE SOCIETY LTD. NUMBER T-187, MARIANAD, PUTHUCURICHY P.O., THIRUVANANTHAPURAM-695 303 REPRESENTED BY ITS SECRETARY.** - **5 PUTHENTHOPE AGRICULTURAL IMPROVEMENT CO-OPERATIVE SOCIETY LTD NUMBER T 1735, PUTHENTHOPE P.O., THIRUVANANTHAPURAM - 695 586 REPRESENTED BY ITS SECRETARY.** ## **SMT.C.S.SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 44 of 2019** -2- ## **JUDGMENT** The petitioner, who is a member of the 4[th] respondent Society, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and Rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 order dated 21.12.2018 of the 3[rd] respondent Returning Officer, whereby the nomination submitted by the petitioner in the election to the Managing Committee of the 2[nd] respondent Kerala State Co-operative Housing Federation Limited, which is scheduled to be held on 05.01.2019, in terms of Ext.P1 notification dated 24.11.2018 issued by the 1[st] respondent State Co-operative Election Commission stands rejected on the ground that the petitioner is a defaulter. The petitioner has also sought for a declaration that the rejection of his nomination by the 3[rd] respondent Returning Officer is illegal; and a writ of mandamus commanding the 3[rd] respondent to permit him to contest in the election in pursuance of Ext.P1. **WP(C).No. 44 of 2019** -3- 2. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for respondents 1 and 3. 3. The pleadings and materials on record would show that election to the Managing Committee of the 2[nd] respondent Federation, which is a Society registered under the Kerala Co-operative Societies Act and the Rules made thereunder, is scheduled to be held on 05.01.2019, in terms of Ext.P1 notification dated 24.11.2018 issued by the 1[st] respondent State Co-operative Election Commission. In terms of Ext.P1 notification, the petitioner submitted nomination. Based on the objection raised by the 4[th] respondent, the nomination of the petitioner stands rejected by Ext.P4 proceedings dated 21.12.2018 of the 3[rd] respondent Returning Officer. 4. If the petitioner is having any dispute in connection with the election to the Managing Committee of the 2[nd] respondent Federation, scheduled to be held on 05.01.2019 in terms of Ext.P1 notification dated 24.11.2018 **WP(C).No. 44 of 2019** -4- issued by the 1[st] respondent State Co-operative Election Commission, such dispute can be raised before the Co-operative 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. 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 Co-operative Election Commission. Rule 35A(6) (e)(ii) deals with rejection of nomination paper. If that be so, any dispute in relation to rejection of nomination paper by **WP(C).No. 44 of 2019** -5- the Returning 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 Co-operative 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. 5. In **Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha, and another v. State of Maharashtra [(2001) 8 SCC 509]** , in the context of Maharashtra Co-operative Societies Act, 1960 and Maharashtra Specified Cooperative Societies Elections to Committees Rules, 1971, the Apex Court held that, the preparation of provisional list of voters, filing of objection against the provisional list of voters, consideration of the objection by the Collector and finalising the list of voters, all occur in the Rules which cover the entire process of election. The Rules framed for election of specified Societies are complete code in itself, providing for the entire **WP(C).No. 44 of 2019** -6- process of election beginning from the stage of preparation of the provisional voters' list, decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of the result of election. 6. In **Shaji K. Joseph v. V. Viswanath [(2016) 4 SCC 429]** , in the context of the Dental Council (Election) Regulations, 1952 the Apex Court held 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 the courts, the election is delayed or cancelled, in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. Therefore, all disputes with regard to election should be dealt with only after completion of the election. 7. In **Jayavarma K. v. State Co-operative** **WP(C).No. 44 of 2019** -7- ## **Election Commission and others [2017 (2) KHC 190]** a Division Bench of this Court held that, a writ petition can be entertained on well settled parameters in order to correct or smoothen the progress of the election. The instance of rejection of the nomination on totally untenable grounds is an example which could be rectified without upsetting the election calendar. The Division Bench held further that, a writ court should act with circumspection as the inevitable consequence of not holding an election in time is the advent of an Administrator. The appointment of an Administrator, in lieu of an elected Managing Committee, should be the last resort in a democratic process. The salutary principles laid down by the Apex Court in **Election Commission of India v. Ashok Kumar [(2000) 8 SCC 216]** should apply fortiori when an alternate remedy well exists under the Kerala Co-operative Societies Act, 1969 to question the process of election to a Society registered. 8. Part IXB of the Constitution of India, inserted by the Constitution (97th Amendment) Act, 2011 deals with **WP(C).No. 44 of 2019** -8- Co-operative Societies. Article 243ZK inserted by the said Amendment Act deals with election of members of board of Co-operative Societies. As per clause (2) of Article 243ZK, the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a cooperative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law. As per the proviso to clause (2) of Article 243ZK, the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections. 9. In **Reji Thomas v. State of Kerala [2018 (2) KHC 842]** a Three-Judge Bench of the Apex Court held that, Section 69 of the Kerala Co-operative Societies Act, 1969 is the mechanism provided by the State Legislature as contemplated under clause (2) of Article 243ZK of the Constitution of India. After referring to the provisions under sub-section (3) of Section 69 of the said Act, which provides that no dispute arising in connection with the election of the Board of Management or an officer of the society shall be **WP(C).No. 44 of 2019** -9- entertained by the Cooperative Arbitration Court unless it is referred to it within one month from the date of the election, the Apex Court held that, once the mechanism provided under the Statute provides for a time schedule for preferring an election petition, in the absence of a provision in the Statute for enlarging the time under any given circumstances, no Court, whether the High Court under Article 226 or the Apex Court under Article 32, Article 136 or Article 142 of the Constitution can extend the period in election matters. 10. Viewed in the light of the law laid down in the decisions referred to _supra_ , conclusion is irresistible that, if the petitioner is having any dispute in relation to rejection of his nomination in the election to the Managing Committee of the 2[nd] respondent Federation scheduled to be held on 05.01.2019 in terms of Ext.P1 notification issued by the 1[st] respondent State Co-operative Election Commission, he will have to raise such dispute before the Co-operative Arbitration Court by invoking the statutory remedy available **WP(C).No. 44 of 2019** -10- under Section 69 of the Act, within a period of one month from the date of election and as such, he cannot approach this Court seeking interference under Article 226 of the Constitution of India. 11. In the result, this writ petition filed on 01.01.2019 stands dismissed, without prejudice to the right of the petitioner to raise any dispute arising in connection with the election to the Managing Committee of the 2[nd] respondent Federation, conducted in terms of Ext.P1 election notification issued by the 1[st] respondent State Co-operative Election Commission, by invoking the statutory remedy available under Section 69 of the Act, within a period of one month from the date of election. It is made clear that the observations, if any, made in this judgment, touching the merits of the factual contentions, are made for the limited purpose of disposal of this writ petition and the Co-operative Arbitration Court shall proceed with any dispute raised by the petitioner under Section 69 of the Act, in connection with the election to the **WP(C).No. 44 of 2019** -11- Managing Committee of the 2[nd] respondent Federation, untrammelled by any such observations. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 44 of 2019** -12- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE NOTIFICATION DATED NOVEMBER 24, 2018 ISSUED BY THE FIRST RESPONDENT IN TERMS OF RULE 35A (3) OF THE KERALA CO-OPERATIVE SOCIETIES RULES.** **EXHIBIT P2 A TRUE COPY OF THE AUTHORIZATION DATED DECEMBER 16,2018 ISSUED BY THE FOURTH RESPONDENT.** **EXHIBIT P3 A TRUE COPY OF THE PLAINT IN OS 146/2018 OF THE COURT OF THE MUNSIFF OF THIRUVANANTHAPURAM. EXHIBIT P4 A TRUE COPY OF THE PROCEEDINGS OF THE THIRD RESPONDENT DATED DECEMBER 21, 2018.** **RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE**