M. Salim v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 05TH DAY OF SEPTEMBER 2018 / 14TH BHADRA, 1940 WP(C).No. 28434 of 2018** ## **PETITIONER:** **M.SALIM AGED 53 YEARS S/O M.M.RASHEED,** **ANDOORKONATH VEEDU, ANDOORKONAM P O, THIRUVANANTHAPURAM-695 584.** **BY ADV. SANTHOSH KUMAR.K.C** ## **RESPONDENTS:** - **1 STATE OF KERALA REP BY THE SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001** - **2 THE KERALA CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM - 695 001.** - **3 THE ELECTORAL OFFICER ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM - 695 001.** - **4 THE RETURNING OFFICER (UNIT INSPECTOR), (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THIRUVANANTHAPURAM - 695 001.** - **5 THE KERALA STATE POLICE CID STAFF CO-OPERATIVE SOCIETIES LTD.NO.322 THIRUVANANTHAPURAM - 695 001, REPRESENTED BY ITS SECRETARY.** ## **BY ADV. SMT.C.S.SHEEJA, SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## W.P.(C)No.28434 of 2018 :-2-: ## **J U D G M E N T** The petitioner, who is the Member of the 5[th] respondent Co-operative Society, has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that Ext.P5 final voters list cannot be made use in the election to be held on 8.9.2018 to the Managing Committee of the said Society, as it is an invalid document. The further relief sought for in this writ petition is a writ of mandamus commanding the 3[rd] respondent Electoral Officer to take up, consider and pass orders afresh, on Ext.P4 representation dated 16.8.2018, as provided under Rule 35A of the Kerala Co-operative Societies Rules; and a writ of mandamus commanding the 2[nd] respondent State Cooperative Election Commission to keep all further proceedings pursuant to Ext.P2 Election W.P.(C)No.28434 of 2018 :-3-: Notification dated 4.8.2018, in abeyance till fresh orders are passed on Ext.P4. 2. On 21.8.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 4. Urgent notice on admission by special messenger was ordered to 5[th] respondent returnable by 29.8.2018. 3. A counter affidavit has been filed by the 5[th] respondent Society opposing the reliefs sought for in this writ petition. **==> picture [402 x 10] intentionally omitted <==** petitioner, the learned Senior Government Pleader appearing for respondents 1 to 4 and also the learned counsel for the 5[th] respondent Society. 5. The pleadings and materials on record would show that the 2[nd] respondent State Co-operative Election Commission has issued Ext.P2 election notification dated 4.8.2018 to conduct election to ## W.P.(C)No.28434 of 2018 :-4-: the Managing Committee of the 5[th] respondent Society, in terms of Ext.P2 notification, and the 3[rd] respondent Electoral Officer published Ext.P3 preliminary voters list consisting of 440 members. As per Ext.P2 notification, objections, if any, to the preliminary voters list have to be submitted before the 3[rd] respondent from 11.00 a.m. on 10.8.2018 till 5.00 p.m. on 17.8.2018. 6. According to the petitioner, he submitted Ext.P4 objection before the 3[rd] respondent Electoral Officer against Ext.P3 preliminary voters list. In Ext.P4 objection, the petitioner has pointed out that certain ineligible persons are included in Ext.P3 preliminary voters list. After considering the objections raised by the petitioner and others, the 3[rd] respondent Electoral Officer published Ext.P5 final voters list on 18.8.2018, consisting of 410 members of the 5[th] respondent Society. 7. Now, the grievance of the petitioner is ## W.P.(C)No.28434 of 2018 :-5-: that some ineligible persons are included in Ext.P5 final voters list and as such, the process of election pursuant to Ext.P2 election notification cannot be permitted to be continued on the basis of Ext.P5 final voters list. It is in such circumstances that the petitioner is before this Court in this writ petition seeking appropriate reliefs. 8. In the counter affidavit filed by the 5[th] respondent, it is contended that if the petitioner is having any dispute whatsoever in connection with the election scheduled to be held on 8.9.2018 in terms of Ext.P2 election notification, he has to invoke the statutory remedy provided under Section 69 of the Kerala Co-operative Societies Act, within the time limit stipulated therein, i.e., within one month from the date of declaration of election. The 5[th] respondent has also raised a contention that Ext.P4 objection made by the petitioner to Ext.P3 ## W.P.(C)No.28434 of 2018 :-6-: preliminary voters list was not supported by any materials to substantiate his objections. 9. If the petitioner is having any dispute in connection with the election to the Managing Committee of the 5[th] respondent Society, which is scheduled to be held on 8.9.2018,in terms of Ext.P2 election notification dated 4.8.2018 issued by the State Co-operative Election 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- ## W.P.(C)No.28434 of 2018 :-7-: 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. 10. 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. Ext.P5 final voters list is one published by the 3[rd] respondent Electoral Officer in exercise of his powers under sub-rule (4) of Rule 35A of the Rules. If that be so, any dispute in relation to Ext.P5 final voters list published by the 3[rd] respondent Electoral Officer, in exercise of his powers under under sub-rule (4) of 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 ## W.P.(C)No.28434 of 2018 :-8-: 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 the entire process of election beginning from the stage of preparation of the provisional voters' ## W.P.(C)No.28434 of 2018 :-9-: list, decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of the result of election. If there was a breach of rule or certain mandatory provisions of the rules were not complied with while preparing of the electoral roll, the same could be challenged under Rule 81(d)(iv) of the Rules by means of an election petition. The preparation of electoral roll is part of the election process and if there is any breach of the rules in preparing the electoral roll, the same can be called in question after the declaration of the result of the election by means of an election petition before the tribunal. 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 ## W.P.(C)No.28434 of 2018 :-10-: 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 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 ## W.P.(C)No.28434 of 2018 :-11-: 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 process of election to a Society registered. 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 ## W.P.(C)No.28434 of 2018 :-12-: 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 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 ## W.P.(C)No.28434 of 2018 :-13-: 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. **==> picture [402 x 13] intentionally omitted <==** consideration, the petitioner has filed I.A.No.2 of 2018, seeking an order to direct the 4[th] respondent Returning Officer to keep the votes if polled by the 29 persons named in Ext.P6 intimation dated 3.9.2018 issued by the State Public Information ## W.P.(C)No.28434 of 2018 :-14-: Officer, Special Branch CID Head Quarters, Pattom, separately and reserve the same during the pendency of the above writ petition. None of the Members whose name figures in Ext.P6 are made parties to this writ petition. In the result, for the reasons stated herein above, 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 5[th] respondent Society pursuant to Ext.P2 election notification dated 4.8.2018 issued by the 2[nd] respondent State Co-operative Election Commission 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 that election. **==> picture [402 x 12] intentionally omitted <==** any, made in this judgment touching the merits of ## W.P.(C)No.28434 of 2018 :-15-: the factual contentions raised by both sides are made for the purpose of disposal of this writ petition, and the Co-operative Arbitration Court shall proceed with any dispute raised by the petitioners, under Section 69 of the Act, in connection with the election to the Managing Committee of the 5[th] respondent Society, untrammelled by any such observations. No order as to costs. Sd/- **ANIL K.NARENDRAN JUDGE** ami/5.9.18 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE BYE-LAW OF THE 5TH RESPONDENT SOCIETY. EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 04/08/2018 ALONG WITH THE SCHEDULE OF ELECTION.** ## W.P.(C)No.28434 of 2018 :-16-: |**EXHIBIT P3**|**TRUE COPY OF THE PRELIMINARY VOTERS LIST**| |---|---| ||**DATED 10/08/2018 ISSUED BY THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P4**|**TRUE COPY OF THE OBJECTION DATED**| ||**16/08/2018 PREFERRED BY THE PETITIONER**| ||**BEFORE THE 3RD RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF THE FINAL VOTERS LIST**| ||**PUBLISHED BY THE 3RD RESPONDENT.**| |**EXHIBIT P6**|**TRUE COPY OF THE INTIMATION DATED**| ||**3.9.2018 ISSUED BY THE STATE PUBLIC**| ||**INFORMATION OFFICER, SPECIAL BRANCH CID**| ||**HEAD QUARTERS, PATTOM,**| ||**THIRUVANANTHAPURAM.**| ||**//TRUE COPY//**| ||**P.A.TO JUDGE**| **ami/**