Jacob Mathew Karimkuttiyil v. Angadi Service Co-Operative Bank Ltd. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938 WA.No. 792 of 2016 () IN WP(C).2036/2016 ------------------------------------------ AGAINST THE ORDER/JUDGMENT IN WP(C) 2036/2016 of HIGH COURT OF KERALA DATED 01-03-2016 APPELLANT(S)/5TH RESPONDENT: --------------------------JACOB MATHEW KARIMKUTTIYIL, MEMBER, DIRECTOR BOARD, ANGADI SERVICE CO-OPERATIVE BANK LTD.NO.2770, ANGADI.P.O, RANNI, PATHANAMTHITTA-689674. BY ADVS.SRI.N.MANOJ KUMAR SMT.JAYASREE MANOJ RESPONDENT(S)/WRIT PETITIONER & RESPONDENTS 1 TO 4 & 6 TO 16: ------------------------------------------------------------- 1. THE ANGADI SERVICE CO-OPERATIVE BANK LTD. NO.2770 REPRESENTED BY ITS SECRETARY, ANGADI P.O, RANNI, PATHANAMTHITTA DISTRICT. 2. NISSAMU KUTTY, CHANTHAYIL CHERUVILA VEEDU, ANGADI P.O, RANNI, PATHANAMTHITTA-689 674. 3. JOJI MAHTEW, PUTHEN VELIL HOUSE, ETTICHUVADU.P.O, PATHANAMTHITTA-689 674. 4. P. KUTTAPPAN, ELECTORAL OFFICER/DEPUTY REGISTRAR(GENERAL), OFFICE OF THE JOINT REGISTRAR, PATHANAMTHITTA-689 001 5. M.K. PRAKASH, RETURNING OFFICER/UNIT INSPECTOR, ANGADI, OFFICE OF THE ASSISTANT REGISTRAR, ANGADI.P.O, PATHANAMTHITTA-689 674. 6. DR. GEORGE THOMAS, MEMBER, DIRECTOR BOARD, ANGADI SERVICE CO-OPERATIVE BANK LTD. NO. 2770, ANGADI P.O, RANNI, PATHANAMTHITTA-689 674. 7. B.SURESH, MEMBER, DIRECTOR BOARD, ANGADI SERVICE CO-OPERATIVE BANK LTD. NO. 2770, ANGADI P.O, RANNI, PATHANAMTHITTA-689 674. WA.No. 792 of 2016 -2- 8. V.A. ABRAHAM, MEMBER, DIRECTOR BOARD, ANGADI SERVICE CO-OPERATIVE BANK LTD. NO. 2770, ANGADI P.O, RANNI, PATHANAMTHITTA-689 674. 9. V.T. ALEXANDER, MEMBER, DIRECTOR BOARD, ANGADI SERVICE CO-OPERATIVE BANK LTD. NO. 2770, ANGADI P.O, RANNI, PATHANAMTHITTA-689 674. 10. VIVIN MATHEW, MEMBER, DIRECTOR BOARD, ANGADI SERVICE CO-OPERATIVE BANK LTD. NO. 2770, ANGADI P.O, RANNI, PATHANAMTHITTA-689 674. 11. M.K. THANKAPPAN MEMBER, DIRECTOR BOARD, ANGADI SERVICE CO-OPERATIVE BANK LTD. NO. 2770, ANGADI P.O, RANNI, PATHANAMTHITTA-689 674. 12. ELENIAMMA SHAJI MEMBER, DIRECTOR BOARD, ANGADI SERVICE CO-OPERATIVE BANK LTD. NO. 2770, ANGADI P.O, RANNI, PATHANAMTHITTA-689 674. 13. JESSY ALEX MEMBER, DIRECTOR BOARD, ANGADI SERVICE CO-OPERATIVE BANK LTD. NO. 2770, ANGADI P.O, RANNI, PATHANAMTHITTA-689 674. 14. MARIAMMA THOMAS MEMBER, DIRECTOR BOARD, ANGADI SERVICE CO-OPERATIVE BANK LTD. NO. 2770, ANGADI P.O, RANNI, PATHANAMTHITTA-689 674. 15. KERALA STATE CO-OPERATIVE ELECTION COMMISSION, CO-BANK TOWER, THIRUVANANTHAPURAM-695001. 16. THE CO-OPERATIVE ARBITRATION COURT, THIRUVANANTHAPURAM-695 001. 17. GEORGE VARGHESE, MEMBER, DIRECTOR BOARD, ANGADI SERVICE CO-OPERATIVE BANK LTD. NO. 2770, ANGADI P.O, RANNI, PATHANAMTHITTA-689 674. R1 BY ADV. SRI.V.G.ARUN R1 BY ADV. SRI.T.R.HARIKUMAR R7,R 8,R 11 -R 14 BY ADV. SRI.ARJUN RAGHAVAN R7,R 8,R 11 -R 14 BY ADV. SRI.ADITHYA RAJEEV R2,R3,R6,R9,R10 BY ADV. SRI.V.SETHUNATH R15 BY SR.GOVERNMENT PLEADER SRI.MUHAMMED HASHIM. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K.ABDUL RAHIM & ANU SIVARAMAN, JJ.** ## **----------------------------------------------W.A.No. 792 of 2016 ----------------------------------------------Dated this the 20[th] March, 2017** ## **JUDGMENT** ## **Anu Sivaraman, J.** This writ appeal is preferred by the 5[th] respondent in the writ petition being aggrieved by the judgment of the learned single Judge disposing of the writ petition preferred by the Society challenging an interlocutory order issued in an election dispute. The learned single Judge upheld the order but clarified that the records submitted by the Society are to be verified by an expert appointed by the Arbitrator and that the method and scope of inspection of the material by the expert is to be regulated by the orders passed on necessary applications before the Arbitrator. The matter in issue is the conduct of elections to the Managing Committee of a Co-operative Society. 2. Heard learned counsel for the appellant, learned counsel for the party respondents and the learned Special Government Pleader. 3. It is submitted that an election was conducted to the committee of the Society on 7.11.2012. The appellant herein is one of the returned candidates. An election petition was filed 2 _**WA.792/16**_ before the Co-operative Arbitration Court by respondents 2 and 3 in the writ appeal. Exhibit P2 in the writ petition is the election petition. The contention raised was to the effect that the appellant and other returned candidates were ineligible to contest the election going by the bye-laws of the Society, since they were contesting the election for the third consecutive term. It was the further contention in Exhibit P2 that the results of the election were manipulated and that two strangers, who had no connection with the affairs of the Society, had been present at the time of the counting of votes. It was their contention that this had vitiated the results of the election. It was also contended that several mistakes were committed by the counting personnel, especially with respect to acceptance of invalid votes. On these contentions, respondents 2 and 3 in this appeal, sought for a declaration that defendants 4 to 14 in the election petition are not eligible to continue as Directors of the Society. 4. The Society as well as the returned candidates had filed written statements before the Co-operative Arbitration Court. They contended that, the election petition filed without impleading the contesting candidates was not maintainable. It was also contended that the bye-laws of the Society had been 3 _**WA.792/16**_ amended and such amendments had been registered by the Joint Registrar, pursuant to which the limitation regarding contesting elections for three consecutive terms had been done away with, much prior to the declaration of the elections. It appears that an interlocutory application was filed in the election petition seeking production of the records pertaining to the election. That interlocutory application was allowed. Later, I.A.No.36 of 2015 was preferred in the A.R.C seeking summoning of the Secretary of the Society to prove contents of the election records and for scrutiny of the records in the presence of the concerned officer appointed by the Court and in the presence of the respective Counsel appearing on either side. This I.A was opposed by the Society as well as some of the returned candidates, including the appellant. Exhibit P7 order was passed on 8.10.2015, allowing the application partly. The plaintiffs were directed to take steps to examine the election records produced by the counter petitioner/Society through an expert commission. The prayer to summon the Secretary of the Society to give evidence with regard to contents of the election records was declined. 5. This order was challenged by the Society on the ground that the Co-operative Arbitration Court constituted under 4 _**WA.792/16**_ Section 70A of the Kerala Co-operative Societies Act, 1969 (for short, 'the Act') did not have the power or jurisdiction to issue commissions for conduct of recounting or for examination of the materials relating to the election. In view of the provision contained in Rule 67 of the Kerala Co-operative Societies Rules, 1969 (for short, 'the Rules'), it was contended that, the Arbitration Court could issue commissions only for examination of the witnesses and the direction to appoint an expert commission, that too at the instance of the plaintiff in the election petition for examining the election records, is without authority and hence invalid. The Society had relied on a decision of the Apex Court in _**A.Neelalohithadasan Nadar v. George Mascrene and others**_ [1994 Supp (2) SCC 619] in support of the contention that the secrecy of ballot could not be violated except in exceptional circumstances. 6. After considering the contentions raised on behalf of the petitioner Society as well as the 1[st] and 2[nd] respondents in the writ petition, who are the 2[nd] and 3[rd] respondents herein, the petitioners/plaintiffs before the Election Commission, the learned single Judge held that the Arbitration Court in Exhibit P7 had intended to appoint an independent expert at the instance of the Court to examine the records and to submit a 5 _**WA.792/16**_ report for its benefit. It was held that Section 70 empowers the Arbitration Court to adjudicate the disputes between the parties and the said Court is intended to substitute a civil court concerning the election disputes. It was therefore held that, the said Court has all the trappings and powers of a civil court and any restrictive interpretation of the provisions would render the Arbitration Court an inferior Tribunal than a civil court vested with co-equal powers. It was therefore held that since what was intended was only an examination of the election records by an independent expert appointed by the Court, there was no illegality in Exhibit P7 order. In the above view of the matter, the learned single Judge permitted the examination of records by an expert commission to be appointed by the Court, pursuant to filing of necessary applications before the court by the parties to the dispute. 7. The 5[th] respondent in the writ petition, who was one of the returned candidates, has filed this writ appeal. The contention raised in the appeal is to the effect that the Arbitration Court, which is a creature of statute, is bound by provisions of the Rules made for its functioning in terms of Section 70A of the Act. 8 _._ It is contended by learned counsel for the appellant that it is clear from a reading of the above provisions of law 6 _**WA.792/16**_ that the Arbitration Court is vested with the powers of a Civil Court under the Code of Civil Procedure, only in the matters enumerated under Section 70(3) of the Act and is not clothed with all the powers of the Civil Court as provided in the Code of Civil Procedure. It is therefore contended that, the appointment of an expert commission, either at the instance of the plaintiffs in the election petition or at the instance of the Arbitration Court itself, is not called for. Even in cases of disputes arising as to the counting of votes, without violating the secrecy of the ballot, it is contended that, the Arbitration Court itself would have to see that the process of verification is carried out in the presence of the officers involved as well as the counsel. The examination of the materials placed on record in respect of the election by the appointment of an expert commission would be in excess of the powers of the Arbitration Act, it is submitted. The learned counsel would also place reliance on the decision of the Apex Court in _**A.Neelalohithadasan Nadar's case**_ _**(supra)**_ to contend that it is only in exceptional circumstances where the purity of the election is called in question that the sanctity of the secrecy ballot can be infringed upon. The learned counsel appearing for the Society would support the contention urged by learned counsel for the appellant. The 7 _**WA.792/16**_ learned Special Government Pleader also submitted that since the materials relating to the election are before the Arbitration Court, it is open to that Court, on the finding that it is necessary to do so, to cause a recounting or retabulation of the votes cast, as may be necessary, in the presence of the concerned parties or their counsel. It is further contended that an order in the nature of Exhibit P7 should not have been issued without first deciding the question of maintainability raised before the Arbitration Court. 9. The learned counsel appearing for the 2[nd] respondent would, on the other hand, contend that the prayer raised in I.A.No.36 of 2015 for examination of the Secretary to prove the contents relating to the election conducted was rightly declined by the Arbitration Court. The Arbitration Court, according to him, only intended a verification of the number of votes cast as would be discernible from the voters' list maintained at the time of the election, as also recounting and tabulation. It is contended that there was no intention to have the material verified by an expert commission appointed at the instance of the plaintiffs in the election petition. It is further contended that the writ appeal preferred by a party who had not even raised pleadings in the writ petition would not be maintainable. 8 _**WA.792/16**_ 10. We have considered the contentions advanced on both sides at considerable length. It is the specific contention of the appellant that he being a returned candidate in the election, on being served notice to the election petition, had preferred a detailed counter affidavit and raised questions as to the maintainability of the election petition without all the contesting candidates on the party array. Further, it is contended that, the findings contained in the judgment of the learned single Judge to the extent of permitting examination of the documents regarding the election by an expert commission, was not warranted in view of the specific provisions contained in Sections 70 and 70A of the Act as well as Rule 67(6) of the Rules. It is further contended that the appellant being a returned candidate and having vested interest in the outcome of the writ petition is indeed a party aggrieved by the judgment of the learned single Judge and therefore have a locus standi to maintain a writ appeal against the said judgment. 11. Section 69 of the Act provides for redressal of election disputes by recourse to approach the Arbitration Court. Section 70A provides that Government shall constitute such number of Co-operative Arbitration Courts, as are necessary to exercise 9 _**WA.792/16**_ the powers and discharge the functions conferred on it under the Act. Section 70A(3) provides that the Government shall make Rules for regulating the procedure and disposal of business of the Co-operative Arbitration Court, while Section 70 (2) of the Act empowers the Court to make interlocutory orders in disputes referred to it, in the interest of justice. Sub-Section (3) of Section 70 of the Act reads as under: ## “ _70._ _**Award on disputes:**_ _xx xx_ _(3) The Co-operative Arbitration Court shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (Central Act 5 of 1908), while trying a suit in respect of the following matters, namely:-_ - _(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;_ - _(ii) the discovery and production of any document or other material object producible as evidence;_ - _(iii) the reception of evidence on affidavits;_ - _(iv) issuing of any commission for the examination of any witness; and_ - _(v) any other matter which may be prescribed.”_ Sub Rules (5) and (6) of Rule 67 of the Rules read as follows: ## _“_ _**67. Reference of disputes, payment of expenses and decisions on disputes.-**_ _xx xx_ 10 _**WA.792/16**_ _(5) The Co-operative Arbitration Court or the Registrar or the person deciding the disputes or the Arbitrator shall have power to administer oaths, to require the attendance of all parties concerned and of witnesses and to require the production of all books and documents relating to the matter of the dispute._ _(6) The Co-operative Arbitration Court, the Registrar or the person deciding the dispute or the arbitrator may of his own motion or on the application of any party to the dispute, inspect any property which is the subject matter of the dispute on giving notice to both the parties to the dispute or summon and examine any person as a witness or issue commissions for examination of witness whose evidence the cooperative Arbitration Court or Registrar or the person deciding the dispute or the Arbitrator, as the case may be, feels necessary for disposing of the dispute.”_ 12. On a consideration of the legal provisions applicable, we are of the opinion that the issue of maintainability, which has been specifically raised by the writ appellant ought to have been considered by the Arbitration Court before an order was issued in I.A.No.36 of 2015 as sought for by the 2[nd] respondent. Only in case the election petition is found to be maintainable, could the issuance of an order for the conduct of recounting, retabulation etc. be issued. The necessity of such a procedure and the nature of the relief to be granted also ought to have 11 _**WA.792/16**_ been specifically considered by the Arbitration Court, since an order of recounting is not one to be routinely granted and the necessity of such an order has to be decided in the facts and circumstances of each case. The finding of the court as to the necessity of such a course of action is a condition which needs to be satisfied before the issuance of an order of this nature. From a reading of the provisions of law, we are of the opinion that though the Co-operative Arbitration Court has the power to issue interlocutory orders, its powers are clearly limited by the provisions of the Act and the Rules. Since the Arbitration Court is not a civil court, the provisions of the Code of Civil Procedure would be applicable only as far as has been made applicable by the Act and the Rules. Moreover, the necessity of an inspection of the election records and the exact nature of the inspection required are also matters which should be specifically considered by the Arbitrator while passing an order during the pendency of an arbitration case relating to an election. 13. In the above view of the matter, the above writ appeal is allowed to the extent of modifying the judgment impugned to the following effect; The issue of maintainability of the election petition shall be considered by the Arbitration Court as a preliminary issue 12 _**WA.792/16**_ and orders passed thereon. In case the election petition is found to be maintainable, I.A.No.36 of 2015 shall be taken up and appropriate orders shall be passed by the Arbitration Court in accordance with law as provided in the Act and the Rules made thereunder. Appropriate orders as mentioned above shall be issued by the Arbitration Court within four months from the date of receipt of a copy of this judgment. ## **C.K.ABDUL RAHIM JUDGE** **ANU SIVARAMAN** **JUDGE** _vgs23/3_