Gomathy Amma v. Chief Election Commissioner, State Co-operative Election Commission, Thiruvananthapuram and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 21ST DAY OF JUNE 2016/31ST JYAISHTA, 1938** ## **WP(C).No. 20600 of 2016 (Y)** **----------------------------------------** ## **PETITIONER(S):** **----------------------** **GOMATHY.AMMA, AGED 43 YEARS, D/O. ACHUTHAN A., PARANKIMAMVILA VEEDU, AAROOR, PONGANAD, KILIMANOOR THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.LATHEESH SEBASTIAN** **RESPONDENT(S): -------------------------** **1. CHIEF ELECTION COMMISSIONER, STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM - 695 001.** **2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695001.** **3. THE ELECTORAL OFFICER/ASSISTANT REGISTRAR, C-OPERATIVE SOCIETIES, CHIRAYANKEEZHU, ATTINGAL, THIRUVANANTHAPURAM-695001.** **4. THE RETURNING OFFICER/KILIMANOOR, UNIT INSPECTOR, KASTHURBA SERVICECO-OPERATIVE BANK LIMITED NO. 681, CHOOTTAYIL, KILIMANOOR, THIRUVANANTHAPURAM.** **5. THE KASTURBA SERVICE CO-OPERATIVE BANK LIMITED NO. 681, CHOOTTAYIL, KILIMANOOR, THIRUVANANTHAURAM, REPRESENTED BYITS SECRETARY-695001.** **6. PURUSHOTHAMAN B., S/O. VELU, PUTHENVILA VEEDU, ALATHUKAVU, PONGA, KILIMANOOR, THIRUVANANTHAPURAM-695001.** **R1-4 BY GOVERNMENT PLEADERN SRI.T.R.RAJESH R5 BY ADVS. SRI.K.SIJU** **SRI.A.MUHAMMED RAFFI R6 BY ADVS. SRI.S.ABHILASH SMT.RENY ANTO** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 20600 of 2016 (Y)** **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** - **P1 TRUE COPY OF THE MODIFIED ELECTION NOTIFICATION** - **P2: TRUE COPY OF THE ACKNOWLEDGMENT OF NOMINATION OF THE PETITIONER** **P3: TRUE COPY OF THE ORDER OF THE 4TH RESPONDET DATED 15/06/2016** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.20600 of 2016 ----------------------------------------------Dated this the 16[th] day of June, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P3, by which the nomination submitted by the petitioner was rejected by the 4[th] respondent. Brief facts for the disposal of the writ petition are thus: 2. The 1[st] respondent notified election to the Managing Committee of the 5[th] respondent on 26.06.2016. Petitioner submitted nomination to contest to the Managing Committee from Ward No.IV. The 6[th] respondent is the rival candidate who submitted nomination against the petitioner. The 4[th] respondent, Returning Officer illegally rejected the nomination of the petitioner for the reason that, the principal borrower to whom the petitioner stood as a guarantor committed default and hence disqualified under Rule 44 (1) (c) (i) of the Kerala Co-operative Societies Rules [hereinafter called 'the Rules']. It is the contention of the petitioner that, 4[th] respondent did not verify whether the petitioner was provided with a notice which is a mandatory requirement under the Rules with respect to 2 **W.P.(C) No.20600 of 2016** the default. Therefore, it is the contention of the petitioner that, Ext.P3 rejection is bad in law and the same is to be quashed. 3. The 5[th] respondent has filed a counter affidavit refuting the allegations, statements and claims made by the petitioner. That apart, it is contended that, as per the records available in the Bank, the petitioner is under liability to the Bank as surety for a loan availed by one K. Maniyan. It is also contended that, since the election process has already started and the election is scheduled on 26.06.2016, writ petition is not maintainable against a decision taken by the 4[th] respondent as per law. 4. The 6[th] respondent has filed a counter affidavit predominantly contending that the petitioner is a defaulter and therefore a disqualified person. 6[th] respondent, also contended that the election process has started and therefore the petitioner is not entitled to challenge the rejection, and if at all petitioner is aggrieved, the remedy lies by filing an election petition after the conduct of the election. 3 **W.P.(C) No.20600 of 2016** 5. Heard learned counsel for the petitioner and the respective counsel appearing for the respondents. Perused the pleadings and documents on record. 6. Learned counsel for the petitioner and respondents reiterated the contentions raised in the writ petition and the respective counter affidavits. The predominant point that is to be considered in this writ petition is whether after the process of election started the action pursuant to Ext.P3 is susceptible to challenge. Learned counsel for the petitioner has invited my attention to the judgment of this Court in _**'K.A. Kalam and**_ _**others v. Alleppey Co-operative Spinning Mills Ltd.'**_ [2007 (2) KHC 836] and canvassed the proposition that if the action on the part of the election officer is _per se_ illegal, this Court is vested with powers to interfere and to issue necessary directions even after issuance of notification for the election. 7. That apart, petitioner has a contention that the respondents have no case that the statutory requirement of issuing a notice to the petitioner is complied with, if allegedly petitioner is a defaulter, as provided under the Rules. 8. On the other hand, respective counsel for the respondents contended that, since the election is notified, 4 **W.P.(C) No.20600 of 2016** there is no entitlement for the petitioner to challenge the same by filing the writ petition, and if at all petitioner is aggrieved, the remedy lies under Sec.69(2)(c) of the Kerala Co-operative Societies Act, 1969, by raising a dispute in connection with election of the Board of Management. 9. Having evaluated the situations and the submissions made across the Bar, the question to be considered is whether this Court can interfere with the election process already notified and scheduled to be held on 26.06.2016. In this regard, I have come across judgments of the Apex Court in _**'Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others'**_ [AIR 2001 SC 3982] and _**'Shaji K. Joseph v. V. Viswanath and others'**_ [2016 (2) KHC 33 (SC)], wherein the Apex Court has held that preparation of voters list is an intermediary stage, and thereby the process of election started, and no Court can interfere with the election process. In the judgment in _**'Shaji K. Joseph's case**_ ( _supra_ ), the Apex Court was considering the election notified to the Dental Council of India. Paragraphs 12 and 14 of the respective judgments read thus: **W.P.(C) No.20600 of 2016** 5 _“12. 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._ _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 upon publication of the election program on 27[th] 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_ 6 **W.P.(C) No.20600 of 2016** _judgments referred to herein-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 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 aforesaid reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.”_ 10. Moreover, petitioner has no case that the voters list is not prepared, election was notified and objections were called for. The sole contention of the petitioner is a statutory violation and the said contention can be a ground for the petitioner to challenge the election. That apart, since the election is scheduled in its absolute terms, it is not proper on the part of this Court to interfere with the schedule prepared, which can upset even the functioning of the Society itself. 11. Therefore, taking into account the totality of the circumstances and reckoning the law, I am satisfied that the petitioner is not entitled to get any relief by invoking the **W.P.(C) No.20600 of 2016** 7 discretionary power of this Court under Article 226 of the Constitution of India. Resultantly, writ petition fails and accordingly same is dismissed. Needless to say, if the petitioner is advised to institute any proceedings after the conduct of the election, he is at liberty to do so. Same is left open. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/16.06.2016