Manoj and Sachidanandan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **THURSDAY, THE 22ND DAY OF JUNE 2017/1ST ASHADHA, 1939** ## **WP(C).No. 35623 of 2016 (C)** **----------------------------** ## **PETITIONER(S):** - **-------------** **1. MANOJ, AGED 37 YEARS, S/O. BALAN, CHETTIYATHIL HOUSE, TANUR POST, MALAPPURAM DISTRICT.** **2. SACHIDANANDAN AGED 29 YEARS, S/O. CHANDRAN, THAYILAPARAMBIL HOUSE, TANUR POST, MALAPPURAM DISTRICT.** **BY ADVS.SRI.C.M.MOHAMMED IQUABAL SRI.ANILKUMAR V. (VAZHARAMBIL)** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE CO-OPERATIVE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM-695 001.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES TANUR, MALAPPURAM DISTRICT-676 302.** **4. STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM.** **5. TANUR SERVICE CO-PERATIVE BANK LTD.NO.F.1629 POST TANUR, MALAPPURAM DISTRICT-676 302.** **6. THE ELECTORAL OFFICER TANUR SERVICE CO-OPERATIVE BANK LTD.NO.F.1629, POST TANUR, MALAPPURAM DISTRICT-676 302.** **WP(C).No. 35623 of 2016 (C)** ## **----------------------------** ## **7. THE RETURNING OFFICER TANUR SERVICE CO-OPERATIVE BANK LTD.NO.F.1629, POST TANUR, MALAPPURAM DISTRICT-676 302.** **R5 TO R7 BY ADV. SRI.P.J.MATHEW** **R1 TO R4 BY SPL. GOVERNMENT PLEADER SRI.K.S.MOHAMMED** **HASHIM** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-06-2017, ALONG WITH WPC. 36770/2016, WPC. 38344/2016, & WPC NO.20382/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 35623 of 2016 (C)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** - **EXHIBIT P1 COPY OF THE MEMBERSHIP LIST OF THE 5TH RESPONDENT BANK.** - **EXHIBIT P2 COPY OF THE NOTIFICATION ISSUED BY THE 4TH RESPONDENT DATED 27.9.2016.** - **EXHIBIT P3 COPY OF THE NOTICE OF THE PUBLICATION OF THE FINAL ELECTORAL ROLL ISSUED BY THE 6TH RESPONDENT DATED 22.10.2016.** - **EXHIBIT P4 COPY OF THE ACTIVE MEMBERS LIST OF 5TH RESPONDENT BANK.** - **EXHIBIT P5 COPY OF THE GOVERNMENT ORDER NO.GO(P)NO.100/2016/CO-OP. DATED 15.10.2016.** **RESPONDENT(S)' EXHIBITS: NIL** **-----------------------** ## **//TRUE COPY//** **P.A. TO JUDGE** **dlk** ## **SHAJI P. CHALY, J** ## **---------------------------------------** W.P.(C) Nos.35623, 36770 & 38344 of 2016 & 20382 of 2017 **----------------------------------------** Dated this the 22[nd] day of June, 2017 ## **JUDGMENT** These are writ petitions materially connected, challenge in respect to the proposal for conducting election to the 5[th] respondent Co-operative Bank, namely, the Tanur Service Cooperative Bank Ltd. No. F1629, Malappuram District, and certain consequential actions, especially on the basis of directives issued by this Court. Since the matters are materially connected I heard learned counsel and propose to pass a common judgment. So far as W.P.(C)No.35623/2016 is concerned, the said writ petition was filed by the petitioners therein contending that an election was proposed to be conducted with 27 qualified members on the Board, whereas the society is having more than 9461 members on the rolls. When the matter came up for admission, an interim order was passed by this Court staying the election. While so, the outgoing managing committee has filed W.P.(C)No.36770/2016 seeking appointment of an administrative committee, wherein W.P.(C) Nos.35623, 36770 & 38344 of 2016 & 20382 of 2017 2 an interim order was passed by this Court directing to appoint three members from the existing administrative committee as administrators to manage the affairs of the society, till such time a board takes place after the election. Accordingly the appointment was made. 2. W.P.(C)No. 38344/2016 is filed by another member of the society challenging Ext.P6 order and for a direction to reconstitute the administrative committee of the 4[th] respondent Bank constituted as per the interim order passed by this Court. 3. W.P.(C)No.20382/2017 is filed by yet another member of the society challenging the present election notified as per Ext.P5. The predominant contention raised by the petitioner in W.P.(C)No.20382/2017 is that while aforesaid three writ petitions were pending before this Court without securing any permission and overlooking the interim order passed in W.P.(C)No.35623/2016 an election is scheduled on 23.7.2017, which is quite illegal, arbitrary and against the interim order passed by this Court. 4. A counter affidavit is filed by the State W.P.(C) Nos.35623, 36770 & 38344 of 2016 & 20382 of 2017 3 Government/the Registrar of Co-operative Societies refuting the allegation, demands and claims raised by the petitioners in the writ petitions. 5. Having considered the rival submissions made across the Bar and perusing the pleadings and documents on record, I am of the considered opinion that so far as the situation available, when the petitioner filed W.P.(C) No.35623/2016, is presently not available, in view of the election declared, as per Ext.P5 under challenge in W.P.(C) No.20382/2017. As per the election notification, Ext.P5, a draft voters list was published on 19.6.2017 and the members are given opportunity to raise any objection with respect to the draft voters list from 11 a.m to 5 p.m from 19.6.2017 to 26.6.2017, and 27.6.2017 is fixed as the date for considering the objections raised and the final voters list is scheduled to be published on 28.6.2017 at 11 a.m. Which thus means if the petitioner has any grievance with respect to the publication of the draft voters list, as per Ext.P5, petitioners could raise the same before the authority concerned. Which thus also means the process of election has taken place consequent to W.P.(C) Nos.35623, 36770 & 38344 of 2016 & 20382 of 2017 4 publication of the draft voters list, and therefore, it is not appropriate and proper on the part of this Court to interfere with the election and disturb the same in any manner. If the petitioners are really aggrieved with respect to the violation of any provisions or declining voting right to any of the eligible members, alternative remedy of challenging the same is available, after the election, by filing a proper election petition before the statutory authority provided under the Kerala Cooperative Societies Act, 1969. The law with respect to realm of interference of a constitutional court under Article 226 of the Constitution of India, after the declaration of the election, is well settled in the judgment in **Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others** [2001 (8) SCC 509], which was followed by the Apex Court in **Shaji K. Joseph v. V. Viswanath & others** [(2016) 4 SCC 429], whereby it is held that the election process starts when the draft voters list is published and consequential action taken and when there is an alternative remedy of challenging the election, the High Court should not stay he W.P.(C) Nos.35623, 36770 & 38344 of 2016 & 20382 of 2017 5 continuation of the process of the election even if there is any violation of rules or illegality. 6. Therefore, in that view of the matter, I am of the considered opinion that, it is not appropriate and fair on the part of this Court to interfere with the election at this stage of the proceedings. No sufficient grounds are made out in W.P. (C)No.38344/2016 to interfere with the appointment of the administrative committee. 7. However, learned counsel for the petitioners has a contention that since there was stay passed by this Court in W.P.(C)No.35623/2016 against the conduct of the election, the respondents should not have notified the election again. But I am of the considered opinion that, the situation and circumstances prevailing in the said writ petition is entirely different than Ext.P5 notification under challenge in W.P.(C) No.20382/2017, wherein, according to the administrative committee, 4952 members are included in the draft voters list, whereas in W.P.(C)No.35623/2016, there were only 27 members eligible for voting rights. This is also recorded. 8. Therefore, in my considered opinion leaving open W.P.(C) Nos.35623, 36770 & 38344 of 2016 & 20382 of 2017 6 the liberty of the petitioners to challenge the election conducted, if they are advised so, the writ petitions can be disposed of by issuing appropriate directions. 9. Therefore, consequent to issuance of fresh election notification, W.P.(C)No.35623/2016, has become infructuous and therefore dismissed accordingly. As per the interim order passed by this Court on 17.11.2016, an administrative committee is in power. The interim order so passed is made absolute. Consequentially W.P.(C)No.38344/2016 challenging the appointment of the administrative committee has become inconsequential and accordingly it is dismissed. In view of the settled proposition of law laid down by the Apex Court in the judgment referred to above, W.P.(C)No.20382/2017 is dismissed. However, I make it clear that all the questions of fact and law raised in the writ petitions are left open to be agitated at any later point of time. 10. Learned counsel for the petitioners is also apprehending that, there is every likelihood of disrupting the election since the administrative committee members appointed as per the directions of this Court is not having that 7 W.P.(C) Nos.35623, 36770 & 38344 of 2016 & 20382 of 2017 much of reputation. 11. Taking note of the said submission there will be a direction to the Joint Registrar of Co-operative Societies, Malappuram to oversee the entire election proceedings and ensure that a fair and proper election is conducted as per Ext.P5 election schedule. I also point out that as per the directions issued by this Court, the Director General of Police, Kerala State has issued a general circular directing all the District Police Chief to ensure free and fair election. This shall also be taken note of and the Officers of the Co-operative Department shall ensure and follow the directives contained in the circular. Writ petitions are disposed of accordingly. Sd/- ## **SHAJI P. CHALY, JUDGE** dlk/22/6