George Sebastian & K.V. George v. Administrator, Vaikom Taluk Co-operative Agricultural and Rural Development Bank Ltd. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **MONDAY, THE 25[TH] DAY OF OCTOBER 2021 / 3RD KARTHIKA,** ## **1943** ## **WA NO. 1314 OF 2021** **AGAINST THE JUDGMENT DATED 09.04.2021 IN** **WP(C)5491/2021 OF HIGH COURT OF KERALA, ERNAKULAM APPELLANTS/PETITIONERS:** |**1**|**GEORGE SEBASTIAN,**| |---|---| ||**AGED 45 YEARS, S/O. SEBASTIAN,**| ||**NELLIPARAMBIL HOUSE, VAIKOM, KOTTAYAM,**| |**2**|**K.V. GEORGE,**| ||**KARIYIL HOUSE, CHEMMANATHUMKARA P.O,**| ||**VAIKOM, KOTTAYAM.**| ||**BY ADV P.N.MOHANAN**| ## **RESPONDENTS/RESPONDENTS:** - **1 THE ADMINISTRATOR, THE VAIKOM TALUK COOPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.951 VAIKOM, KOTTAYAM DISTRICT - 696141.** - **2 SHEEBA, W/O. SURESH, RESIDING AT VELIYIL HOUSE, VARIKKUNNU, VADAKARA, KOTTAYAM, THE ADMINISTRATOR, THE VAIKOM TALUK COOPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD NO. 951, VAIKOM, KOTTAYAM DISTRICT - 696141.** - **3 VAIKOM TALUK CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.NO.951 REPRESENTED BY ITS SECRETARY IN CHARGE, VAIKOM, KOTTAYAM DISTRICT - 696141.** - **4 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-** Writ Appeal No.1314 of 2021 ..2.. **OPERATIVE SOCIETIES, COLLECTORATE POST, KOTTAYAM - 686001.** **5 THE STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ELECTION COMMISSIONER, 3RD FLOOR, CO-BANK TOWERS, PALAYAM, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM - 695033.** **SRI.T.SHIHABUDEEN** **SRI.LAKSHMI NARAYANAN SC** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal No.1314 of 2021 ..3.. **P.B.SURESH KUMAR & C.S.SUDHA, JJ. ----------------------------------------------Writ Appeal No.1314 of 2021 ----------------------------------------------Dated this the 25[th] day of October, 2021** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** This writ appeal is directed against the judgment dated 9.4.2021 in W.P.(C) No.5491 of 2021. Petitioners in the writ petition are the appellants. Parties and documents are referred to in this judgment, as they appear in the writ petition for convenience. 2. The dispute in the writ petition pertains to election to Vaikom Taluk Co-operative Agricultural and Rural Development Bank Ltd.(the Bank), a Co-operative Society registered under the Kerala Co-operative Societies Act,1969 (the Act). The petitioners are members of the Bank. The term of the Managing Committee of the Bank was due to expire on Writ Appeal No.1314 of 2021 ..4.. 16.01.2021. Before the expiry of the term, the Bank resolved to conduct election on 10.01.2021, and on the basis of the resolution of the Bank, the fifth respondent, the State Cooperative Election Commission (the Commission) issued Ext.P1 notification. In terms of Ext.P1 notification, the date for publication of the draft voters list, the date for raising objection to the draft voters list, the date for publication of the final voters list, the date for submitting nomination, the date for withdrawal of the nomination and the date of election were fixed as 05.12.2020, 05.12.2020, 15.12.2020, 28.12.2020, 30.12.2020 and 10.01.2021 respectively. On 8.1.2021, the Commission postponed the election in terms of Ext.P4 order purportedly on the basis of a complaint that persons who are not entitled to membership in the Bank have been enrolled as members of the Bank. Since the election was postponed, the Managing Committee of the Bank was superseded and an Administrator was appointed in its place. The petitioners challenged Ext.P4 order in the writ petition. 3. The Administrator appointed in the place of the Managing Committee has later directed the Bank to make available Rs.1,92,525/- for sending notices to persons who have Writ Appeal No.1314 of 2021 ..5.. been enrolled as members illegally. The said direction of the Administrator was challenged in W.P.(C) No.3935 of 2021. 4. The writ petitions were heard together. As far as W.P.(C) No.5491 of 2021 was concerned, though the learned Single Judge took the view that the grievance voiced in the complaint, on the basis of which the election process was interdicted, is one to be raised in a properly instituted election petition, the learned Judge directed the election to be conducted _de novo_ , after rejecting the specific contention of the petitioners that the election process shall be resumed from the stage at which it was stopped. As far as W.P.(C) No.3935 of 2021 was concerned, the learned Judge found that the direction impugned therein was bad. W.P.(C) No.3935 of 2021, in the circumstances, was allowed and W.P.(C) No.5491 of 2021 was allowed in part, directing the Administrator to take steps to conduct _de novo_ election in the Bank. The petitioners are aggrieved by the judgment in W.P.(C) No.5491 of 2021 to the extent the learned Single Judge declined the prayer of the petitioners for a direction to the Commission to resume the election process from the stage at which it was stopped. Hence this appeal. Writ Appeal No.1314 of 2021 ..6.. 5. Heard the learned counsel for the appellants, the learned Standing Counsel for the Commission, the learned counsel for the Bank as also the learned Government Pleader. 6. The learned counsel for the appellants contended that having interfered with the decision of the Commission in interdicting the election process, in so far as it was found that the interdiction is illegal, the learned Judge ought to have directed the Commission to resume the election process from the stage at which it was stopped. 7. The learned Standing Counsel for the Commission submitted that it is having regard to the facts and circumstances of the case that the learned Single Judge has refrained from setting aside the order of the Commission and in the said circumstances, the direction to conduct the election _de novo_ is in order. 8. The learned counsel for the Bank supported the stand of the Commission. It was also pointed out that it is having regard to the illegalities committed by the previous committee in enrolling persons who are not eligible to be enrolled as members of the Bank, the learned Judge has declined the relief sought by the petitioners that the election Writ Appeal No.1314 of 2021 ..7.. process shall be resumed from the stage at which it was stopped. The learned counsel has also pointed out that it is the obligation of the Commission to ensure that free and fair elections are conducted in every society and it is having regard to the said obligation that the learned Single Judge ordered _de novo_ election. The learned counsel also submitted that since W.P.(C) No.5491 of 2021 was disposed of along with W.P.(C) No.3935 of 2021 by a common judgment, the petitioners should have filed two appeals, and in so far as appeal is not preferred against the decision in W.P.(C) No.3935 of 2021, the present appeal is not maintainable. 9. We have perused the materials on record and considered the arguments of the learned counsel for the parties. 10. A close reading of the impugned judgment, in the light of the decision of the Apex Court in **Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra,** AIR 2001 SC 3982 referred to therein, would indicate beyond doubt that the view taken by the learned Single Judge in the matter of passing the impugned judgment was that the grievance in the Writ Appeal No.1314 of 2021 ..8.. nature of one voiced in the complaint on which Ext.P4 order postponing the election was issued, is one to be raised in an election petition after the election and that the Commission ought not have therefore interfered with the election process. True, in the said view of the matter, the learned Judge could have set aside Ext.P4 order and ordered the Commission to resume the election process from the stage at which it was stopped. But, it is seen that the learned Judge has ordered _de novo_ election taking the view that it may not be appropriate to direct the Commission to resume the election having regard to the lapse of time. The short question, therefore, is as to whether the learned Judge was justified in ordering _de novo_ election after having found that the Commission was not justified in postponing the election. 11. There is no statutory provision covering the question aforesaid. It is, however seen that a Division Bench of this Court in W.A.No.68 of 2014 has considered an identical situation and held that there is nothing illegal in directing that the election process shall be resumed from the stage at which it was stopped, in such circumstances. That was a case dealing with an order issued by the Commission recalling an election Writ Appeal No.1314 of 2021 ..9.. ## notification on an identical complaint as in the instant case. Paragraph 8 of the said judgment reads thus: “In so far as the complaints that were entertained by the Election Commission regarding the electoral roll is concerned, we have to say that, after the commencement of the election process, draft electoral roll was published, objections were entertained and the electoral roll was finalised on that basis. Once it was done and election was about to take place, it may not be proper for the Election Commission then to again entertain a complaint against the electoral roll and on that basis issue an order in the nature of Ext.P7. If the election was conducted on the basis of an invalid electoral roll, the remedy available is that provided in Section 69 of the Kerala Co-operative Societies Act. In such circumstances, the learned Judge was fully justified in directing that the election process shall be resumed from the stage where it was stopped and that the Administration Committee should pass a resolution for scheduling the election.” We are in respectful agreement with the view taken by the Division Bench in the said case. That apart, if the view aforesaid is not taken in a case of this nature, it will be possible to meddle with valuable rights of parties by issuing unjustifiable and illegal orders. Needless to say that if it is found that an election process was unjustifiably interfered with, the election process has to be resumed from the stage at which it was stopped, and lapse of time cannot be a reason for Writ Appeal No.1314 of 2021 ..10.. ordering _de novo_ election. 12. The contention raised by the learned Standing Counsel for the Commission and the Bank that it is having regard to the facts and circumstances of the case that the learned Judge has ordered _de novo_ election is contrary to the findings in the impugned judgment. The contention of the learned counsel for the Bank that it was having regard to the obligation of the Commission to ensure free and fair election that the learned Single Judge has ordered _de novo_ election is also one to be rejected as there is no such finding in the impugned judgment. As regards the contention raised by the learned counsel for the Bank as to the maintainability of the writ appeal, it is to be noted that the writ petitions were instituted for distinct reliefs and there were no common issues. In the absence of common issues and findings thereon, there cannot be any impediment in filing an appeal against the judgment in one case alone, for the principle of res judicata which affects the maintainability of the appeal, does not arise in such cases. In the result, the writ appeal is allowed and the impugned judgment is modified directing the Commission to Writ Appeal No.1314 of 2021 ..11.. take necessary steps to resume the election process pursuant to Ext.P1 notification from the stage at which it was stopped in terms of Ext.P4 order, forthwith. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **C.S.SUDHA, JUDGE.** YKB/ds 25.10.2021