Jaison K. John v. Veliyannoor Service Co-operative Bank Ltd. and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY,THE 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940** # **WP(C).No. 2154 of 2019** ## **PETITIONER:** **JAISON K.JOHN, AGED 48 YEARS, S/O.JOHN, KULANGARAMATTATHIL HOUSE, VELIYANNOOR P.O., KOTTAYAM DISTRICT- 686634.** **BY ADV. SRI.VIJAI MATHEWS** ## **RESPONDENTS:** **1 VELIYANNOOR SERVICE CO-OPERATIVE BANK LTD.NO.K.282, VELIYANNOOR P.O., KOTTAYAM DISTRICT- 686634 REPRESENTED BY ITS SECRETARY. 2 UNIT INSPECTOR (RETURNING OFFICER TO VELIYANNOOR SERVICE CO-OPERATIVE BANK LTD.NO.K.282), OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, MEENACHIL TALUK, PALA, KOTTAYAM DISTRICT-686575. 3 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), (THE ELECTORAL OFFICER TO VELIYANNOOR SERVICE CO-OPERATIVE BANK LTD.NO.K.282), OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, MEENCAHIL TALUK, PALA, KOTTAYAM DISTRICT- 686575. 4 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), COLLECTORATE P.O., KOTTAYAM- 686002.** **WP(C).No. 2154 of 2019** -2- **5 THE STATE CO-OPERATIVE ELECTION COMMISSION, CO-BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM- 695033.** **R1 BY ADV.SRI.P.N.MOHANAN** **R2-R5 SMT C.S.SHEEJA,SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 2154 of 2019** -3- ## **JUDGMENT** The petitioner, who is a member of the 1[st] respondent Bank, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to permit him and all other members, who are holding share value of Rs.10 to vote for and contest in the ensuing election to the Managing Committee of that Society. The petitioner has also sought for an order directing the respondent to postpone the election to a future date from 03.02.2019 until the name of all members who are included in the voters list; and an order directing the respondents to permit him and other willing members to remit the enhanced share value. The further relief sought for is a declaration that exclusion of members on the premise that they did not remit the enhanced share value is arbitrary and illegal and an order directing the respondents to furnish the details of the **WP(C).No. 2154 of 2019** -4- members who were excluded from the voters list on the ground that they did not remit the enhanced share value. 2. On 24.01.2019, when this writ petition came up for admission, this Court passed the following order; “In **Bharat Singh v. State of Haryana [(1988) 4 SCC 534]** the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter-affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counteraffidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. 2. The basic facts necessary to support the relief **WP(C).No. 2154 of 2019** -5- sought for in this writ petition are not pleaded. The election notification issued by the State Co-operative Election Commission has not been even produced. The date of publication of the preliminary voters list and whether any objections were filed to the preliminary voters list, etc. are also not stated. 3. Learned counsel for the petitioner seeks adjournment so as to enable him to produce necessary materials.” 3. On 28.01.2019, when this writ petition came up for consideration, the petitioner filed I.A.No.1 of 2019, seeking an order to accept Ext.P3 election notification dated 26.12.2018 issued by the 5[th] respondent State Co-operative Election Commission as additional document. The said interlocutory application was allowed as prayed for. Thereafter, this Court issued urgent notice on admission by special messenger to the 1[st] respondent, returnable by 30.01.2019 and the learned Senior Government Pleader took notice on admission for respondents 2 to 5. 4. On 30.01.2019, when this writ petition came up for admission, this Court allowed I.A.No.2 of 2019 filed by **WP(C).No. 2154 of 2019** -6- the petitioner seeking an order to amend the writ petition. The learned counsel for the 1[st] respondent sought time to file counter affidavit and the learned Senior Government Pleader sought time to file statement on behalf of the 3[rd] respondent. Accordingly, the writ petition was ordered to be listed today for further consideration. 5. A counter affidavit has been filed by the 1[st] respondent, opposing the reliefs sought for in this writ petition. The 3[rd] respondent has also filed a statement. 6. Heard the learned counsel for the petitioner, Sri.P.N.Mohanan, the learned counsel for the 1[st] respondent Bank and also the learned Senior Government Pleader appearing for respondents 2 to 5. 7. The pleadings and materials on record would show that election to the Managing Committee of the 1[st] respondent Society is scheduled to be held on 03.02.2019, in terms of Ext.P3 election notification dated 26.12.2018 issued by the 5[th] respondent State Co-operative Election Commission. **WP(C).No. 2154 of 2019** -7- 8. During the course of arguments, on a specific query made by this Court, the learned counsel for the 1[st] respondent Society, after getting instructions from the Secretary of the Society and also the President of the Managing Committee, would submit that Ext.P3 election notification was published in Malayala Manorama Daily and Deepika Daily dated 28.12.2018. The said submission is recorded. 9. As per Ext.P3 election notification, the preliminary voters list was published on 28.12.2018. As per the said notification, objections, if any, to the preliminary voters list has to be submitted from 28.12.2018 at 11.00 am to 03.01.2019 at 5.00 pm. As can be seen from the statement filed by the 3[rd] respondent, none of the members of the 1[st] respondent Society has submitted any objection to the preliminary voters list, within the time limit specified in Ext.P3 election notification. Therefore, the 3[rd] respondent Electoral Officer published the final voters list on 05.01.2019 at 11.00 am. **WP(C).No. 2154 of 2019** -8- 10. In this writ petition, the petitioner is mainly aggrieved by non-inclusion of his name and also the name of those who have not remitted the enhanced share value, in the final voters list published by the Electoral Officer. Admittedly, none of the members including the petitioner have chosen to file objections, if any, to the preliminary voters list, within the time limit specified in Ext.P3 election notification. 11. Having considered the submissions made by the learned counsel on both sides, this Court finds that, if the petitioner is having any dispute in connection with the election to the Managing Committee of the 1[st] respondent Bank, which is scheduled to be held on 03.02.2019 as per Ext.P3 election notification, 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 **WP(C).No. 2154 of 2019** -9- 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 subsection (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. 12. 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 Co-operative 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 **WP(C).No. 2154 of 2019** -10- specified Societies are complete code in itself, providing for the entire 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. 13. 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 **WP(C).No. 2154 of 2019** -11- completion of the election. 14. Part IXB of the Constitution of India, inserted by the Constitution (97th Amendment) Act, 2011 deals with 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 co-operative 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. 15. 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 **WP(C).No. 2154 of 2019** -12- 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 entertained by the Co-operative 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. 16. Having considered the submissions made by the learned counsel on both sides and the pleadings and materials on record, conclusion is irresistible that, if the petitioner is having any dispute in connection with the election to the Managing Committee of the 1[st] respondent **WP(C).No. 2154 of 2019** -13- Society, he has to raise such dispute before the Cooperative Arbitration Court by invoking the statutory remedy available under Section 69 of the Act, within a period of one month from the date of election. In such circumstances, the petitioner cannot approach this Court under Article 226 of the Constitution of India seeking a writ of mandamus commanding the State Co-operative Election Commission to postpone the election to the Managing Committee of the 1[st] respondent Society or for other consequential reliefs. 17. In the result, this writ petition is 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 1st respondent Society, conducted in terms of Ext.P3 election notification issued by the 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 **WP(C).No. 2154 of 2019** -14- 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 Managing Committee of the 1[st] respondent Bank, untrammelled by any such observations. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 2154 of 2019** -15- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MEMBERSHIP ID CARD ISSUED TO THE PETITIONER, DATED 25.01.2001.** **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 14.01.2019. EXHIBIT P3 TRUE COPY OF THE ELECTION NOTIFICATION, DATED 26.12.2018.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(A) A TRUE COPY OF THE NOTICE FOR GENERAL BODY PUBLISHED IN MALAYALA MANORAMA DATED 14.09.2017. EXHIBIT R1(B) A TRUE COPY OF THE NOTICE FOR GENERAL BODY PUBLISHED IN MATHRUBHUMI DATED 14.09.2017. EXHIBIT R1(C) A TRUE COPY OF THE ORDER DATED 17.02.2018 OF THE JOINT REGISTRAR. EXHIBIT R1(D) A TRUE COPY OF THE PAPER NOTIFICATION PUBLISHED IN MALAYALA MANORAMA DAILY DATED 16.05.2018. EXHIBIT R1(E) A TRUE COPY OF THE PAPER NOTIFICATION PUBLISHED IN DEEPIKA DAILY DATED 15.05.2018. EXHIBIT R1(F) A TRUE COPY OF THE NOTIFICATION PUBLISHED IN MALAYALA MANORAMA DAILY DATED 29.08.2018. EXHIBIT R1(G) A TRUE COPY OF THE NOTIFICATION PUBLISHED IN DEEPIKA DAILY DATED 29.08.2018. EXHIBIT R1(H) A TRUE COPY OF THE JUDGMENT DATED 12.10.2018 IN W.P.(C)NO.33063/2018.** **//TRUE COPY// P.A. TO JUDGE**