K.S. Anilkumar Sreenivas v. Kerala State Co-operative Election Commission

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 29TH DAY OF JUNE 2017/8TH ASHADHA, 1939 WA.No. 1026 of 2017 IN WP(C).17186/2017 -------------------------------------------AGAINST THE ORDER IN WP(C) 17186/2017 DATED 26-05-2017 ..................... APPELLANT/PETITIONER : - ----------------------------- ## K.S.ANILKUMAR SREENIVAS, THEKKADA, VEMBAYAM P.O., THIRUVANANTHAPURAM, MEMBER NO. 10560, NEDUMANGAD CO-OPERATIVE URBAN BANK, NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS/RESPONDENTS : ------------------------------------ 1. KERALA STATE CO-OPERATIVE ELECTION COMMISSION CO-BANK TOWERS, THIRUVANANTHAPURAM - 695 001. 2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) VANCHIYOOR, THIRUVANANTHAPURAM - 695 001. 3. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), NEDUMANGAD, THIRUVANANTHAPURAM - 695 001. 4. THE RETURNING OFFICER, NEDUMANGAD CO-OPERATIVE URBAN BANK LTD.NO. 3193, NEDUMANGAD P.O., THIRUVANANTHAPURAM - 695 541. 5. NEDUMANGAD CO-OPERATIVE URBAN BANK LTD.NO. 3193, NEDUMANGAD P.O., THIRUVANANTHAPURAM - 695 541, REPRESENTED BY ITS SECRETARY. 6. T.R. SURESH KUMAR, MEMBERSHIP NO. 6521, NEDUMANGAD CO-OPERATIVE URBAN BANK LTD.NO. 3193, NEDUMANGAD P.O., THIRUVANANTHAPURAM - 695 541, RESIDING AT KRISHNAVILASAM, VADAKKUMKARA, NEDUMANGAD, THIRUVANANTHAPURAM - 695 541. ## R5 BY ADV. SRI.K.B.ARUNKUMAR, SC, NEDUMANGAD CO.OPERATIVE URBAN BANK LT R2 TO R4 BY ADVOCATE GENERAL, SRI.C.P. SUDHAKARA PRASAD SUPPORTED BY SRI.K.S. MOHAMMED HASHIM, SPL. GP(CO-OP.) R BY SRI.THOMAS ABRAHAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29-06-2017, ALONG WITH WA. 1124/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Navaniti Prasad Singh, C.J. & Raja Vijayaraghavan V., J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. Nos. 1026, 1124 of 2017, W.P.(C) Nos.12827, 15154, 16833 and 17186 of 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of June, 2017 ## **JUDGMENT** ## **Navaniti Prasad Singh, C.J.** In this batch of cases we are primarily concerned with the two writ appeals i.e. W.A. Nos.1026 and 1124 of 2017, which are against the interim order dated 26.05.2017, passed in the two writ petitions being W.P.(C) Nos.17186 and 16833 of 2017. 2. The interim order virtually decided the fate of the cases. In the appeals the correctness of the view of the learned single Judge is challenged. When the matter was taken up, we requested the learned Advocate General to assist the court on behalf of the State. An intervention application was filed in W.A. No.1026 of 2017 being I.A. No.805 of 2017. It is stated by the intervenor that his writ petition is pending and any decision in these appeals may affect him. Considering the aforesaid, we allowed the application and we have heard learned counsel for the intervenor on the question of law. He opposes the writ appeal. WA No.1026 of 2017 and conn. Cases -:2:- 3. With consent of parties, we have heard these cases, primarily the appeals, to dispose of the matters at this stage itself. 4. The issue is with regard to Ordinance No.4 of 2017 issued by the State in exercise of powers under Article 213 of the Constitution, whereby the third proviso to Section 28(1) of the Kerala Co-operative Societies Act, 1969 (for short 'the Act') was deleted. What is the effect of such deletion is the matter in issue. 5. The next question is whether as a consequence of the said deletion, can any elections in any Co-operative Society be held on 'ward' basis or not ? The appellant's stand is that it can be so held, whereas the stand of the State and the Intervenor is that no such Ward based election is now possible. 6. What had happened was in respect of the appellant's Co-operative Society, notification dated 02.02.2017 was issued by the 'State Co-operative Election Commission' (for short 'Election Commission') notifying Ward based election. The Ordinance was then issued on 10.04.2017 deleting the third WA No.1026 of 2017 and conn. Cases -:3:- proviso to Section 28(1) of the Act. On 12.04.2017, a further notification was issued by the Election Commission, in furtherance which, election was to be held on ward basis. This notification was then sought to be cancelled by notification issued by the Election Commission on 18.05.2017. Being aggrieved by this notification of 18.05.2017, the writ petitions were filed. In the writ petition an interim prayer was sought for stay of this impugned notification dated 18.05.2017. By a lengthy order, virtually giving a finding as to the effect of the Ordinance, the interim prayer was rejected. The result was that the ward based election which was to be held, stood cancelled. This virtually decided the writ petition itself. Hence, this intra court appeal. 7. While hearing the appeals we had called for other writ petitions which were pending before the learned single Judge and that is how these batch of cases are before us. We would, however, make it clear that we are only deciding the core issue and all matters would then be remitted to the learned single Judge for disposal in accordance with the views expressed by us and facts found by him. WA No.1026 of 2017 and conn. Cases ## -:4:- 8. The appellant is a member of Nedumangad Urban Cooperative Bank Ltd. it is a matter of record that by virtue of resolution of the General Body of the Society in the year 2012 the bye laws of the Society were amended. The amendments were substantially that the elections to the management of the Society would be on the basis of wards. The bye law being so amended, was submitted before the Registrar of Co-operative Societies for being approved and certified. In the year 2012 itself, the amendments were accordingly approved and certified. Thus, so far as the appellant's Society is concerned, the bye laws authorized elections on the basis of wards. In 2013 i.e. with effect from 14.02.2013 by an amendment being Act No.8 of 2013, the State Registrar introduced the third proviso to Section 28(1) of the Act, which reads as follows : “ **28. Appointment of committee** .- (1) The general body of a society shall constitute a committee, for a period of five years, in accordance with the bye-laws and entrust the management of the affairs of the society to such committee. xxxxxxxxxx WA No.1026 of 2017 and conn. Cases ## -:5:- ## xxxxxxxxxx [Provided also that the case if the following type of co-operative societies election shall be conducted on ward basis in accordance with the by-laws, namely;- (a) Primary Agricultural Credit Societies/Service Co-operative Banks/Farmers Service Co-operative Banks/Rural Banks/Regional Banks; - (b) Urban Co-operative Banks; - (c) Urban Co-operative Societies; - (d) Primary Agricultural and Rural Development Banks; - (e) Primary Housing Co-operative Societies;]” 9. At the risk of repetition we may note that the bye laws of the Co-operative Societies provided for ward based election much prior to this amendment. At this stage itself we may note that neither of the parties including the Advocate General contends that the bye laws, as amended in the year 2012, providing for ward based elections, was bad. It was accepted by the State and conceded that prior to this amendment, by which the third proviso was added, there was no prohibition or restriction to hold elections on ward basis, if the bye laws so provided. 10. The Act having thus been amended when the time came for elections in the appellant's Co-operative Society, on WA No.1026 of 2017 and conn. Cases -:6:- 02.02.2017, the Election Commission issued notification for a ward based election. The Act was then amended by the Ordinance with effect from 10.04.2017 deleting the third proviso to Section 28(1), which was introduced with effect from 14.02.2013. We may note that so far Section 28 is concerned, it is only this third proviso that was deleted as quoted above. Notwithstanding this deletion, on 12.04.2017 the Election Commission issued further notification in respect of the appellant's Co-operative Society for elections on ward basis. Thus, the Election Commission, even after the Ordinance and deletion of third proviso to Section 28(1) of the Act, had issued a notification fixing election on ward basis. After a month, i.e. on 18.05.2017, the Election Commission cancelled the earlier notification to conduct election on ward basis. 11. There is a counter affidavit by the Election Commission. The stand is that by virtue of introduction of third proviso to Section 28(1) of the Act with effect from 14.02.2013, the Act provided for ward based election and that having been deleted by the Ordinance by 10.04.2017, no election could be conducted on WA No.1026 of 2017 and conn. Cases -:7:- ward basis and accordingly it was obliged to recall the earlier notification. The stand was that the notification issued on 12.04.2017 to conduct election was a mistake. The Advocate General supports the stand of the Election Commission and submits that the intention of the Legislature was, by deletion of the third proviso to Section 28(1) to cancel the scheme of ward based elections, and that being so, the Election Commission was right in cancelling the earlier notifications. This view found favour with the learned single Judge. 12. On the other hand, on behalf of the appellant it is submitted that there is nothing in the Co-operative Societies Act which prohibited ward based elections. He referred to substantive part of Sub-section (1) of Section 28 which clearly stipulates that the General Body shall constitute the committee for a period of five years in accordance with the bye laws. It is the General Body that had the right to amend the bye laws. The bye laws were amended in the year 2012 itself to provide for election on ward basis. As noted earlier, neither the intervenor nor the learned Advocate General contends that this amendment WA No.1026 of 2017 and conn. Cases ## -:8:- of bye laws in the year 2012 providing for ward basis election was either _ultra vires_ the Act or had wrongly been allowed. The position, it is submitted, would be that even prior to the amendment of Section 28(1), ward based election was permitted. What was done by the insertion of third proviso to Section 28(1) with effect from 14.02.2013 was that in respect of certain enumerated Co-operative Societies ward wise election was made mandatory. In other words, what was earlier discretionary was made mandatory in respect of certain specified Societies. Thus, by deletion of this proviso with effect from 10.04.2017 by the Ordinance the only thing that was done was restore status quo ante. According to the learned Counsel that was the intention of the Legislature and not as submitted by the learned Advocate General. 13. On facts it was submitted that the Election Commission being aware of the Ordinance rightly took the view that the Ordinance did not prohibit ward based election and therefore the Ordinance having been promulgated on 10.04.2017, on 12.04.2017 they issued a notification in respect of the appellant's WA No.1026 of 2017 and conn. Cases -:9:- Co-operative Society to hold election on ward basis, notwithstanding the Ordinance. It was specifically averred that while the notification of ward based election in so far as the appellant's Co-operative Society is concerned, was rescinded by notification dated 18.05.2017, there were large number of other Co-operative Societies where elections were notified on ward basis subsequent to the Ordinance, and pursuant to the election, results have been declared by the Election Commission. It was thus submitted that merely because the appellant's Co-operative Society was not in political tandem with the existing setup, they were restrained from holding ward based elections whereas others were permitted. Even though this fact was specifically raised, the only thing that is contended in response is that as the elections have already been been held, if the courts so directs, the election results could be cancelled, but the Election Commission would not cancel the election on its own. 14. We found this stand a bit curious. The Election Commission is a statutory body having high responsibility. It cannot have the Jekyll and Hyde attitude. If its actions were _bona_ WA No.1026 of 2017 and conn. Cases -:10:- _fide_ , then consistent with the plea that they have taken before this Court, they ought to have cancelled all other elections which were held on ward basis after the Ordinance and not placed the burden on the Court to do it. We disapprove such an attitude. 15. The learned Advocate General would submit with reference to various authorities that if two options are available and the Government chooses to interpret it in a particular manner, then the Court should not strike down Government action because of availability of other options. The learned Advocate General has placed reliance on various decisions; a Full Bench decision in **Pulomaja Devi v. Gopinathan Nair and others** [1975 KLT 111] and in particular what is stated in paragraph 4 thereof, **Thanga Dorai v. Chancellor, Kerala University** [1995(2) KLT 663] and in particular what is stated in the later part of paragraph 7 thereof, **Ajeet Singh Singhvi v. State of Rajasthan** [1991 Supp(1) SCC 343] and in particular what has observed in paragraph 12 thereof and lastly in the case of **Onkar Lal Bajaj and others v. Union of India and another** [(2003) 2 SCC 673] and in particular paragraph 27 thereof. WA No.1026 of 2017 and conn. Cases -:11:- 16. We have considered the arguments and in our view the learned counsel for the appellant is correct. The reason is plain and simple. As noted earlier, the learned Advocate General and the intervenor do not contest the position that prior to insertion of third proviso to Section 28(1) with effect from 14.02.2013 ward based election was permissible, provided, the Co-operative Society had amended its bye law accordingly. The appellant's Co-operative Society, as noted above, had amended its bye laws as early as in the year 2012 itself to provide for ward based election. The same had been approved and registered by the Registrar of Co-operative Societies without demur. There is no allegation or submission that such a bye law then enacted was in conflict with any provision of the Act or the Rules framed thereunder. That being the position, it has to be held that ward based election in any Co-operative Society was permissible prior to the insertion of the third proviso to Section 28(1). 17. Now, we must see what was added by the amendment on 14.02.2013. If we read the proviso as has been added, it makes imperative/mandatory in respect of the noticed WA No.1026 of 2017 and conn. Cases ## -:12:- Co-operative Societies to hold election on ward basis. In other words, what was discretionary or directory in respect of certain class of Co-operative Societies, was made mandatory. No special right which was not there earlier was created nor any special obligation is created. Those Co-operative Societies could have earlier also decided to have elections on ward basis. They would have been unaffected by this amendment. Thus, when the Ordinance on 10.04.2017 deleted this proviso what could be the intention of the Legislature and what in fact they achieved ? We have no manner of doubt that what they have achieved is what they have intended for. They restored the position prior to the amendment of 14.02.2013. The position is already conceded by the Advocate General that ward based election could be held then. If that position is restored, there is no question of any ambiguity and the result of the Ordinance is only one and singular, i.e. restoring the _status quo ante_ position. That is how the Election Commission understood the matter. The commission had issued notification in respect of the appellant's Co-operative Society on 12.04.2017, after the Ordinance. Ward based election WA No.1026 of 2017 and conn. Cases ## -:13:- in respect of several other Co-operative Societies were held, and notwithstanding the Ordinance, results were declared by the very same Election Commission. But when it came to the appellant's Society, they took a convenient somersault and held that the notification to conduct election on ward basis was in conflict with the Ordinance and therefore issued the impugned order dated 18.05.2017. According to us, the ordinance only deleted the third proviso and restored the position as it earlier stood. There being no ambiguity the judgments as cited by the learned Advocate General need not be recorded. This we say because those judgments refer to the challenge to executive actions under a Statute where two possible views could be taken. Those were cases where notwithstanding the amendment, the Statute by itself was vague or uncertain for it is established rule of interpretation that in case a Statute is vague, ambiguous or uncertain, the first attempt has to be made to interpret it in a manner consistent with the object of the Act and in furtherance thereto. The Court has not to adopt the interpretation as given by the Government merely for the sake of it. The interpretation WA No.1026 of 2017 and conn. Cases -:14:- by the Government does not bind the Court. The principle of discretion is not there when it comes to interpretation of Statutes. The question of discretion arises in administrative actions and it is well settled that in the sphere of administrative law, discretion is conferred on an authority to choose one mode of performance, out of several modes. If the authority picks up one mode, the Court would not substitute the same by its view. Those are principles of administrative law and not rules of interpretation of Statute. However, this discussion is not necessary as we have no manner of doubt in the instant matter. The Ordinance only restored the pre-amendment position and the pre-amendment position, even the learned Advocate General concedes, did permit ward based election. 18. We would note one observation made by the learned single Judge. It was held that consequent to the Ordinance, deleting the third proviso, in view of Section 13A of the Act the bye laws of the Co-operative Society permitting ward based election would become redundant and inconsequential. We are unable to subscribe to that view, for the reason that as we have WA No.1026 of 2017 and conn. Cases -:15:- already held, the effect of amendment by the Ordinance was not to prohibit ward based election at all. It was to restore the position as prevailing before the insertion of the third proviso with effect from 14.02.2013 and once that position was restored, the ward based election as permitted by the appellant's Cooperative Society bye laws would become operative rather than inoperative as held by the learned single Judge. Thus, we set aside the interim order of the learned single Judge allowing the two appeals and remanding all the writ petitions to the learned single Judge to dispose of the same in accordance with the decision of this Court. Sd/- ## **Navaniti Prasad Singh, Chief Justice** Sd/- **Raja Vijayaraghavan V., Judge** ttb/01/07