Kunhikannan and others v. Returning Officer, Chengala Service Co-operative Bank Ltd No. S.66; Electoral Officer; State Co-operative Election Commission; Chengala Service Co-operative Bank Ltd No. S.66

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 16TH DAY OF AUGUST 2018 / 25TH SRAVANA, 1940** **WP(C).No. 26895 of 2018** **PETITIONERS:** **1 KUNHIKANNAN, AGED 57 YEARS, S/O.KELU, STEFI NILAYAM, K.K.PURAM, CHERKALA, KASARAGOD DISTRICT.** - **2 B.MOHAMMED, STAR WATCH WORKS, CHERKALA, CHENGALA P.O., KASARAGOD DISTRICT.** - **3 M.PADMAVATHI, W/O.RAMAKRISHNAN, SUBBYAMOOLA HOUSE, STEFI NILAYAM, CHENGALA P.O., KASARAGOD DISTRICT.** **BY ADVS.SRI. M. SASINDRAN SRI. V. VENUGOPAL** ## **RESPONDENTS:** **1 THE RETURNING OFFICER, CHENGALA SERVICE CO-OPERATIVE BANK LTD.NO.S.66, [INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIEITES (GENERAL) KASARAGOD], CHENGALA, KASARAGOD DISTRICT.** :-2-: W.P.(C) No.26895 of 2018 **2 THE ELECTORAL OFFICER, CHENGALA SERVICE CO-OPERATIVE BANK LTD.NO.S.66, [THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIEITES (GENERAL) KASARAGOD], CHENGALA, KASARAGOD DISTRICT.** - **3 THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM-695 001 REPRESENTED BY ITS SECRETARY.** - **4 THE CHENGALA SERVICE CO-OPERATIVE BANK LTD.NO.S 66 P.O. CHENGALA-671 541, KASARAGOD DISTRICT REPRESENTED BY ITS SECRETARY.** **R1-R3 BY SENIOR GOVERNMENT PLEADER:SMT.C.S.SHEEJA R4 BY ADV.JAWAHAR JOSE,SC,THE CHENGALA SERVICE CO-OPERATIVE BANK LTD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.08.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :-3-: W.P.(C) No.26895 of 2018 **ANIL K. NARENDRAN, J. --------------------------------------------W.P.(C) No.26895 of 2018 --------------------------------------------Dated this the 16[th ] day of August, 2018** ## **JUDGMENT** The petitioners, who are members of the 4[th] respondent Co-operative Bank, which is a Society registered under the Kerala Co-operative Societies Act, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 list of candidates published by the 1[st] respondent Returning Officer dated 03.08.2018 to the extent it does not include the name of the petitioners. The further reliefs sought for in this writ petition are a writ of certiorari to quash Exts.P4, P5 and P6 communications dated 03.08.2018 issued by the 1[st] respondent Returning Officer to petitioners 1 to 3; an order directing the 1[st] respondent to include the name of the petitioners in the list of candidates for election to the Managing Committee of the 4[th] respondent Society W.P.(C) No.26895 of 2018 :-4-: scheduled to be held on 18.08.2018, in terms of Ext.P1 notification dated 22.06.2018 issued by the 3[rd] respondent State Co-operative Election Commission; and an order commanding respondents 1 and 2 not to publish the result of the election on the date scheduled for election in Ext.P1 notification, without conducting election including the name of the petitioners also as candidates. 2. On 08.08.2018, when this writ petition came up for admission, the learned Senior Government Pleader and also the learned counsel for the 4[th] respondent Bank sought time to file counter affidavit. 3. A counter affidavit has been filed by the 4[th] respondent Society opposing the reliefs sought for in this writ petition. 4. Heard the learned counsel for the petitioners, the learned Senior Government Pleader appearing for respondents 1 to 3 and also the learned counsel for the 4[th] respondent Co-operative Society. W.P.(C) No.26895 of 2018 :-5-: 5. According to the petitioners, the 1[st] respondent Returning Officer rejected their nominations by Exts.P4 to P6 communications on absolutely untenable and flimsy reasons. The illegal action on the part of the 1[st] respondent is liable to be interfered with by this Court, in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India, and they may be permitted to participate in the process of election, by treating their nominations valid. 6. A reading of Exts.P4, P5 and P6 communications issued by the 1[st] respondent Returning Officer would show that the nominations submitted by the 1[st] petitioner is rejected on the ground that it is not one submitted in the nomination form supplied by the Returning Officer. Clause (a) of sub-rule (6) of Rule 35A of the Kerala Co-operative Societies Rules (for brevity 'the Rules') provides that, nomination of the candidates for election shall be made in Form No.36, which shall be supplied by the Returning W.P.(C) No.26895 of 2018 :-6-: Officer to any member free of cost on application. Similarly, the nomination of the 2[nd] petitioner was rejected on the ground that he is a defaulter in respect of the loan availed from the 4[th] respondent Society and as such, disqualified in terms of sub-clause (i) of clause (3) of sub-rule (1) of Rule 34 of the Rules. In the case of the 3[rd] petitioner, her nomination is rejected on the ground that she is a member in the Managing Committee of Chengala Agricultural Welfare Co-operative Society and also Karasagod Dinesh Beedi Cooperative Society and as such, disqualified as per clause (b) of sub-section (2) of Section 28 of the Act. 7. In **Antnrayose v. Senior Inspector of Cooperative Societies (1992 (2) KLT 489)** a Division Bench of this Court held that, when the rejection of the nomination paper is patently illegal, the party need not be driven to proceedings under Section 69 of the Co-operative Societies Act and this Court could in such patent cases interfere under Article 226 of the Constitution of India. The :-7-: W.P.(C) No.26895 of 2018 said view has been reiterated in **Pankajaksha Panicker v. Venugopalan Nair (1993 (2) KLT 641)** . 8. In **Antnrayose's case (supra)** the only objection to the nomination paper, that was raised by the Returning Officer, was that in the place where the name of the society had to be filled up, instead of being filled up by hand, a seal of the society was put. The seal mentions the name of the society. In other words, the seal was substituted for what could have been written by hand. The Division Bench held that, there is substantial compliance with the provisions that the name of the society has to be filled up in that particular column. In fact, the seal was put against the said column, that being the heading of the nomination paper. Therefore, this Court held that the rejection of nomination paper is arbitrary and illegal, and the party need not be driven to proceedings under Section 69 of the Kerala Co-operative Societies Act and that, this Court could in such patent cases interfere under Article 226 :-8-: W.P.(C) No.26895 of 2018 of the Constitution of India. 9. In **Pankajaksha Panicker's case (supra)** the rejection of the nominations filed by the respondents therein was on the ground that the column relating to date of election was left blank. The Division Bench held that rejection of nominations was wholly unsupportable. The date was known to everybody and was not in dispute and was, in fact, stated in the supporting affidavit, etc. Reiterating the earlier view taken in **Ravi v. Kottayam Cooperative Urban Bank Ltd. (1993 (1) KLT 644)** the Division Bench interfered with the matter, particularly in the light of the patent illegalities in the rejection of nominations which are wholly unsupportable. Further, on the facts of that case, there was no question of adducing any documentary or oral evidence and there is no need to adduce elaborate oral or documentary evidence. The law laid down in **Antnrayose's case (supra)** has been followed in **Abraham v. Returning Officer (1993 (1) KLT** :-9-: W.P.(C) No.26895 of 2018 **548)** and **Nalinam T. and others v. Joint Registrar of Co-operative Societies, Kottayam and others (2011** **(2) KLT 991)** , two decisions relied on by the learned counsel for the petitioners. Viewed in the light of the law laid down in the decisions referred to supra, it cannot be said that Exts.P4 to P6 orders of the 1st respondent Returning Officer, whereby the nominations submitted by the petitioner stand rejected, warrant interference under Article 226 of the Constitution of India. It cannot also be said that Exts.P4 and P6 orders of the 1st respondent Returning Officer are patently illegal or on totally untenable grounds and there is no need to adduce elaborate oral or documentary evidence to substantiate the said contention. 10. If the petitioners are having any dispute in connection with the election to the Managing Committee of the 4[th] respondent Society, which is scheduled to be held on 18.08.2018, in terms of Ext.P1 notification dated 22.06.2018 issued by the State Co-operative Election W.P.(C) No.26895 of 2018 :-10-: Commission, 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 connection with the election to 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 sub-section (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. Rule 35A of the Rules deals with the procedure regarding conduct of election to the committee of Societies by the State Co-operative Election Commission. Any dispute in relation to rejection of nomination by the 1[st] respondent Returning Officer, by W.P.(C) No.26895 of 2018 :-11-: Exts.P4 to P6 orders, in exercise of his powers under Rule 35A of the Rules, is a dispute arising in connection with that election, which 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. 11. 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 specified Societies are complete code in itself, providing for :-12-: W.P.(C) No.26895 of 2018 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. 12. 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 completion W.P.(C) No.26895 of 2018 :-13-: of the election. 13. In **Jayavarma K. v. State Co-operative Election Commission and others [2017 (2) KHC 190]** a Division Bench of this Court held that, a writ petition can be entertained on well settled parameters in order to correct or smoothen the progress of the election. The instance of rejection of the nomination on totally untenable grounds is an example which could be rectified without upsetting the election calendar. The Division Bench held further that, a writ court should act with circumspection as the inevitable consequence of not holding an election in time is the advent of an Administrator. The appointment of an Administrator, in lieu of an elected Managing Committee, should be the last resort in a democratic process. The salutary principles laid down by the Apex Court in **Election Commission of India v. Ashok Kumar [(2000) 8 SCC 216]** should apply fortiori when an alternate remedy well exists under the Kerala Co-operative Societies Act, 1969 to question the :-14-: W.P.(C) No.26895 of 2018 process of election to a Society registered. 14. Part IXB of the Constitution of India, inserted by the Constitution (97[th] 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 W.P.(C) No.26895 of 2018 :-15-: contemplated under clause (2) of Article 243ZK of the 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 Cooperative 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. Viewed in the light of the law laid down in the decisions referred to _supra_ , conclusion is irresistible that, if the petitioners have any dispute in relation to rejection of W.P.(C) No.26895 of 2018 :-16-: their nomination by Exts.P4 to P6 orders of the 1[st] respondent Returning Officer, they will have to raise such dispute before the Co-operative Arbitration Court, by invoking the statutory remedy available under Section 69 of the Act, within one month from the date of election, and as such, they cannot approach this Court seeking interference under Article 226 of the Constitution of India. Therefore, this writ petition is liable to be dismissed, without prejudice to the right of the petitioners to raise any dispute arising in connection with the election before the Co-operative Arbitration Court, by invoking the statutory remedy available under Section 69 of the Act, within one month from the date of election. Sd/- **ANIL K. NARENDRAN JUDGE** bpr W.P.(C) No.26895 of 2018 :-17-: ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE NOTIFICIATION DATED 22.06.2018 ISSUED BY THE 3RD RESPONDENT ELECTION COMMISSION.** - **EXHIBIT P2 TRUE COPY OF THE ACKNOWLEDGEMENT DATED 01.08.2018 ISSUED ON SUBMISSION OF NOMINATION PAPER BY THE 1ST PETITIONER.** - **EXHIBIT P2(A) TRUE COPY OF THE ACKNOWLEDGEMENT DATED 01.08.2018 ISSUED ON SUBMISSION OF NOMINATION PAPER BY THE 2ND PETITIONER.** - **EXHIBIT P2(B) TRUE COPY OF THE ACKNOWLEDGEMENT DATED 01.08.2018 ON SUBMISSION OF NOMINATION PAPER OF THE 3RD PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE LIST OF CANDIDATES PUBLISHED BY THE RETURNING OFFICER DATED 03.08.2018.** - **EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 03.08.2018 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 03.08.2018 ISSUED BY THE 1ST RESPONDENT RETURNING OFFICER TO THE 2ND PETITIONER.** **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 03.08.2018 ISSUED BY THE 1ST RESPONDENT TO THE 3RD PETITIONER.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R4(A) TRUE COPY OF THE APPLICATIONS SUBMITTED BY THE CANDIDATES BEFORE THE RETURNING OFFICER FOR THE ISSUANCE OF NOMINATION** W.P.(C) No.26895 of 2018 :-18-: ## **PAPERS.** **EXHIBIT R4(B) TRUE COPY OF THE LETTER DATED 02.08.2018 ISSUED BY THE SECRETARY OF THE CHENGALA SERVICE CO-OPERATIVE BANK TO THE 1ST RESPONDENT.** **//TRUE COPY//** **P.A. TO JUDGE** **bpr**