Mercy George v. Kerala State Co-operative Election Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 11TH DAY OF DECEMBER 2017/20TH AGRAHAYANA, 1939** ## **WP(C).No. 39027 of 2017 (C)** **----------------------------** **PETITIONER(S): -----------------------** **SMT.MERCY GEORGE, PUTHENPURACKAL HOUSE, KALLOORKKAD P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661.** **BY ADV. SRI.GEORGE POONTHOTTAM.** **RESPONDENT(S): ---------------------------** **1. THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM-695 001, REPRESENTED BY THE SECRETARY.** **2. THE ELECTORAL OFFICER, (ASSISTANT REGISTRAR GENERAL), MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661.** **3. THE RETURNING OFFICER (PAMPAKKUDA UNIT INSPECTOR), OFFICE OF THE ASSISTANT REGISTRAR, MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661.** **4. KALLOORKKAD FARMER'S CO-OPERATIVE BANK LTD NO.2605, REPRESENTED BY THE MANAGING DIRECTOR, MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661.** **5. OMANA MOHANDAS, MEMBER NO.8061, KALLOORKKAD FARMERS' CO-OPERATIVE BANK LTD NO.2605, MUVATTUPUZHA, ERNAKULAM DISTRICT, RESIDING AT MANALIL, KALLOORKKAD, MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661.** **WP(C).No. 39027 of 2017 (C)** **6. SHANTI JOY, MEMBER NO.5631, KALLOORKKAD FARMERS' CO-OPERATIVE BANK LTD NO.2605, MUVATTUPUZHA, ERNAKULAM DISTRICT, RESIDING AT PERUMBIPLLI KUNNU HOUSE, MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661.** **7. SHYNI SUNNY, MEMBER NO.10373, KALLOORKKAD FARMERS' CO-OPERATIVE BANK LTD NO.2605, MUVATTUPUZHA, ERNAKULAM DISTRICT, RESIDING AT KAIPATHADATHIL HOUSE, KALLOORKADU, MUVATTUPUZHA, ERNAKULAM DISTRICT-686 661.** **8. SUDHARMA SOMAN, MEMBER NO.11417, KALLOORKKAD FARMERS' CO-OPERATIVE BANK LTD NO.2605, MUVATTUPUZHA, ERNAKULAM DISTRICT, RESIDING AT CHERADIYIL HOUSE, NAGAPPUZHA, ERNAKULAM DISTRICT-686 668.** **9. REJI VINCENT, MEMBER NO.11259, KALLOORKKAD FARMERS' CO-OPERATIVE BANK LTD NO.2605, MUVATTUPUZHA, ERNAKULAM DISTRICT, RESIDING AT NEDUMKALLEL HOUSE, NAGAPPUZHA, ERNAKULAM DISTRICT-686 668.** **R1 TO R3 BY SPL. GOVT. PLEADER SRI.K.S. MOHAMMED HASHIM. R4 BY ADV. SRI.P.V.BABY. R5, R7 & R9 BY ADVS. SRI.T.P.PRADEEP, SRI.S.SREEDEV, SRI.M.B.SANDEEP. R6 & R8 BY ADV. SRI.A.N.SANTHOSH.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. **WP(C).No. 39027 of 2017 (C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1 TRUE COPY OF THE ELECTION NOTIFICATION /ORDER NO.E(1)5538/2017/SCEC DATED 09.11.2017.** **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 30.11.2017 ISSUED BY THE RETURNING OFFICER REJECTING THE NOMINATION PAPER SUBMITTED BY THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE FINAL LIST OF CANDIDATES PUBLISHED BY THE RETURNING OFFICER, DATED 01.12.2017.** **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. **“CR” ANIL K. NARENDRAN, J. --------------------------------------W.P.(C).No.39027 of 2017 ---------------------------------------Dated this the 11th day of December, 2017** ## **J U D G M E N T** The petitioner, who is a member of Kalloorkkad Farmer's Co-operative Bank Ltd. No.2605, the 4[th] respondent Society, has submitted nomination paper pursuant to Ext.P1 Election Notification dated 09.11.2017 issued by the Kerala State Cooperative Election Commission, the 1[st] respondent Election Commission, to contest in the election to the Managing Committee of the 4[th] respondent Society, from the constituency reserved for women members in terms of Section 28A of the Kerala Co-operative Societies Act, 1969. The petitioner is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 order dated 30.11.2017 of the 3[rd] respondent Returning Officer, whereby her nomination paper stands rejected on the ground that she is also a member of Kumaramangalam Service Co-operative Bank Ltd. No.4122 and as such, disqualified to contest in the election to the Board of Directors of the 4[th] respondent Society. W.P.(C).No.39027 of 2017 2 2. After Ext.P2, the 3[rd] respondent Returning Officer published the list of candidates who have submitted valid nomination papers, which was published on 30.11.2017 itself. After withdrawal of nomination by certain candidates, the 3[rd] respondent published Ext.P3 final list of candidates, who are contesting in the election scheduled to be held on 16.12.2017, and the said list was published on 01.12.2017. The reliefs sought for in this writ petition read thus; “(i) issue a writ of certiorari calling for the records leading to Ext.P2 and quash the same; (ii) issue a writ declaring that the rejection of nomination paper submitted by the petitioner for the reason stated in Ext.P2 is illegal on the face of it and therefore the said decision be set aside being bad in law; (iii) issue a writ in the nature of mandamus directing the Returning Officer to include the name of the petitioner among the list of candidates for the election notified to be held as per Ext.P1.” 3. On 06.12.2017, when this writ petition came up for admission, this Court issued notice on admission by special messenger to respondents 4 to 9 and the learned Special Government Pleader took notice for respondents 1 to 3. 4. Heard the learned counsel for the petitioner, the learned Special Government Pleader appearing for respondents W.P.(C).No.39027 of 2017 3 1 to 3, the learned counsel appearing for respondents 4, 8 and 9 and also the learned counsel for respondents 5, 6 and 7. 5. The sole issue that arises for consideration in this writ petition is as to the legality or otherwise of Ext.P2 order passed by the 3[rd] respondent Returning Officer, whereby the nomination paper submitted by the petitioner to contest in the election to the Managing Committee of the 4[th] respondent Society scheduled to be held on 16.12.2017 stands rejected. 6. By Ext.P2 order passed by the 3[rd] respondent Returning Officer the nomination paper submitted by the petitioner to contest in the election to the Managing Committee of Kalloorkkad Farmer's Co-operative Bank Ltd. No.2605, the 4[th] respondent Society, stands rejected on the ground that she is also a member of Kumaramangalam Service Co-operative Bank Ltd. No.4122 and as such, disqualified to contest in the election to the Board of Directors of the 4[th] respondent Society. During the course of arguments, on a specific query made by this Court, the learned counsel for the petitioner submitted that, the petitioner became a member of Kumaramangalam Service Co-operative Bank Ltd. No.4122 prior to her enrolment as a member of Kalloorkkad Farmer's W.P.(C).No.39027 of 2017 4 Co-operative Bank Ltd. No.2605. 7. Clause (oaa) of Section 2 of the Kerala Co-operative Societies Act, 1969 (for brevity 'the Act') defines the term 'Primary Agricultural Credit Society' to mean a Service Cooperative Society, a Service Co-operative Bank, a Farmers Service Co-operative Bank and a Rural Bank, the principal object of which is to undertake agricultural credit activities and to provide loans and advances for agricultural purposes, the rate of interest on such loans and advances shall be the rate fixed by the Registrar and having its area of operation confined to a Village, Panchayath or a Municipality. Therefore, going by clause (oaa) of Section 2 of the Act, both the Societies in which the petitioner is a member, i.e., Kumaramangalam Service Co-operative Bank Ltd. and Kalloorkkad Farmer's Cooperative Bank Ltd. are Primary Agricultural Credit Societies. 8. The contention raised by the learned counsel for the petitioner is that, having membership in two societies of the same type is not a disqualification in terms of Section 28 of the Act, read with Rule 44 of the Kerala Co-operative Societies Rules, 1969 (for brevity 'the Rules'). When the Returning Officer has no authority to reject a nomination paper, except W.P.(C).No.39027 of 2017 5 on account of any disqualification under Section 28 of the Act and Rule 44 of the Rules, the rejection of nomination paper by Ext.P2 order is patently illegal and without authority, warranting interference by this Court, invoking the discretionary jurisdiction under Article 226 of the Constitution of India. 9. Sub-section (2) of Section 28 of the Act provides that, notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for appointment as, or for being, a member of a committee if he is a member of the committee of more than one society of the same type; or if he is a member of the committee of more than two societies of different types. Going by the proviso to sub-section (2), nothing contained in that sub-section shall be deemed to disqualify a person for election as, or for being, a delegate of a society. 10. Rule 27 of the Co-operative Societies Rules deals with the prohibition of membership in two credit societies. As per sub-rule (1) of Rule 27, a person applying for admission as a member of any credit society (not being Financing Bank) shall be admitted as such member only with the previous W.P.(C).No.39027 of 2017 6 sanction in writing of the Registrar, if on the date of such application such person is a member of any other credit society. Such sanction may be accorded by the Registrar either in relation to any individual credit society or in relation to class of credit societies. Sub-rule (2) of Rule 27 provides that, where a person has become a member of any society referred to in sub-rule (1) in contravention of the provisions of that sub rule, such society shall remove him from membership upon a written requisition from the Registrar. 11. Rule 44 of the Co-operative Societies Rules deals with disqualification of membership. Sub-rule (1) of Rule 44 enumerates the disqualifications, based on which a member of the society shall be ineligible for being elected or appointed as a member of the committee of the society under Section 28 of the Act. As per clauses (a) and (j) sub-rule (1) of Rule 44, no member of a society shall be eligible for being elected or appointed as a member of the committee of the society under Section 28 if he is disqualified under Section 28; or if he is disqualified under any other provisions in the bye-laws of the society. 12. During the course of arguments, the learned W.P.(C).No.39027 of 2017 7 counsel for respondents 5, 6 and 7 made available for the perusal of this Court a copy of the bye-laws of Kalloorkkad Farmer's Co-operative Bank Ltd. No.2605, the 4[th] respondent Society. Clause 7 of the bye-laws, which deals with membership, reads thus; **“7.** ¥¢·Äb¢ 1. çµÞYd¿Þµí¿í æºÏîÞX fÎÄÏáUÕÈᢠØÙµøà آ¸¢ ¦µí¿í 16(1) (a) ÕµáMßW ÉùÏáK çÏÞ·cÄÏáUÕÈᢠ¦Ï ¯æÄÞøÞ{ᢠ²øá Õcµñß ¥¢·ÎÞÏßÏáU dÉçÕÖÈJßÈá ¥VÙÈÞÏßøßAáKÄÞണ�. ®KÞW ¨ èÌÜÞØí ªV¼í¼ßÄJßW ÕøáçOÞZ ÈßÜÕßÜáU æÎOVNÞVAí æÎOVNÞøÞÏß Äá¿øÞÕáKÄÞണ�. 2.å Øíçxxí ·ÕæpaᢠÇÈØÙÞÏÌÞCᢠùÌîV çÌÞVÁᢠ¥¢·Bള�ÏßdÉçÕÖÈJßÈá ¥VÙøÞÏßøßAáKÄÞണ�. 3. ØÙµøà آ¸¢ ø¼ßØíd¿Þùáæ¿ ØÞÎÞÈcçÎÞ, dÉçÄcµçÎÞ ¦Ï ¥ÈáÕÞÆ¢ µâ¿ÞæÄ ÏÞæÄÞøá ÕcíµñßÏᢠÎæxÞøá èdÉÎùß ædµÁßxí ØÙµøÃØ¢¸JßW ¥¢·ÎÞÏßøßæA ÌÞCßæÜ ²ø¢ ·ÎÞÏßøßAÞçÈÞ, ²ø¢·ÎÞÏß dÉçÕÖßAæM¿ÞçÈÞ ÉÞ¿áUÄÜï. 4. ÏÞæÄÞøÞ{ᢠ¥ÏÞZ ²øá ÈßViÈÈÞÏß dɶcÞÉßAæM¿ÞX ¥çÉfßAáµçÏÞ, ¥æÜïCßW ¥ÏÞZ ²øá ÉÞMøÞÏßøßAáµçÏÞ ¥æÜïCßW øÞ×íd¿àÏ ØbÍÞÕçJÞ¿áµâ¿ßÏ ²øá µáxçÎÞ, ØÆÞºÞøÆâ×c¢ ©ZæM¿ÞJ ²øá µáxçÎÞ ¥ÜïÞJ ¯æÄCßÜᢠµáxJßÈá ¥ÏÞZAí ÖßfÞÕßÇß ÈWµæM¿áµÏᢠÖßfÞÕßÇßÏáæ¿ ¥ÕØÞÈ ÄàÏÄß ÎáÄW 5 ÕV×AÞÜ¢ µÝßÏÞÄßøßAáµÏᢠæºÏñßøßAáµçÏÞ æºÏîáK Éf¢ ÌÞCßæÜ ²ø¢·ÎÞÏß dÉçÕÖÈJßÈVÙÎÞÏßøßAáKÄÜï. 5. ÌÞCßæÜ ¯æÄCßÜᢠ¥¢·¢ ¥ÏÞZAí ÎâKÞ¢ ¶mßµÏßÜᢠÈÞÜÞ¢ ¶mßµÏßÜᢠÉùEßGáU ¥çÏÞ·cĵZ çÈøß¿áµçÏÞ, ¥æÜïCßW ¥ÏÞZAí ¦µí¿ßÜᢠùâZØßÜᢠÉùÏáK ¥çÏÞ·cĵZ Ø¢ÍÕßAáµçÏÞ æºÏîáKÉf¢ ¥ÏÞZ ÌÞCßæÜ ²ø¢ ·ÎÜïÞÄÞÏßJàøáKÄÞണ�.” 13. Sub-clause (3) of Clause 7 of the bye-laws provides that, no person, who is a member of any other Primary Credit Co-operative Society, shall be admitted or continue as a member of the 4[th] respondent Society without the permission W.P.(C).No.39027 of 2017 8 of the Registrar by general or special order. Sub-clause (5) of Clause 7 provides further that, any member incurring disqualification as contemplated under sub-clause (3) or subclause (4) of Clause 7 or that under the Co-operative Societies Act or the Rules shall cease to be a member of the 4[th] respondent Society. 14. In the instant case, as on the date on which the petitioner was admitted as a member of Kalloorkkad Farmer's Co-operative Bank Ltd., the 4[th] respondent Society, she was a member of Kumaramangalam Service Co-operative Bank Ltd., which is another primary Credit Co-operative Society. As such, the disqualification under sub-clause (3) read with sub-clause (5) of Clause 7 of the bye-laws of the 4[th] respondent Society is attracted in the case of the petitioner. If that be so, the petitioner has incurred the disqualification under Rule 44(1)(j) of the Rules, which would disentitle her from being elected to the Managing Committee of the 4[th] respondent Society. 15. The learned counsel for the petitioner, relying on the decisions of this Court in **Natarajan v. Returning Officer (1997 (2) KLT 253)** and **Ambatt Asokan v. Oachira Service Co-operative Bank Ltd. and another (2008 (3)** W.P.(C).No.39027 of 2017 9 **KHC 563)** would contend that dual membership is not a ground for disqualification from contesting in the election or to become a member of the Managing Committee of a Cooperative Society. 16. In **Natarajan's case (supra)** the nominations submitted by the petitioners therein were rejected on the ground of dual membership. The petitioners contended that there is no provision in the bye-laws of the Society, namely, Pattanakkad Service Co-operative Bank Ltd. prohibiting dual membership. In the statement filed by the Returning Officer, it was contended that under Rule 27 of the Kerala Co-operative Societies Rules there is prohibition of membership in two credit housing societies. This Court noticed that, Rule 27(2) provides for ouster from the membership of the second society upon a written requisition from the Registrar. But, in the case of the petitioners, they became members of Pattanakkad Service Cooperative Bank Ltd. earlier and their alleged membership in Cherthala Taluk Advocates Co-operative Society Ltd. were subsequently taken. A reading of paragraph 2 of the decision would show that, the provisions under Rule 44(1)(j) of the Cooperative Societies Rules, which provides that, if a person is W.P.(C).No.39027 of 2017 10 disqualified under any other provisions in the bye-laws of the society, such person shall be ineligible for being elected or being appointed as a member of the committee of the society, was brought to the notice of this Court by the learned Government Pleader. Then this Court observed that, since there is no such provision in the bye-laws of Pattanakkad Service Co-operative Bank Ltd., the disqualification under Rule 44(1)(j) is not applicable. Paragraph 2 of the decision reads thus; “2. Disqualification of membership of committee is mentioned in Rule 44(1) which gives specific instances where persons can be disqualified from contesting the election to the society. Dual membership is not a ground for expelling from contesting in the election or becoming a member of the committee. Learned Government Pleader pointed out that Rule 44(1)(j) provides that if a person is disqualified under any other provisions, such person can be disqualified for becoming a member of the Committee. But there is no such provision in the bye laws also. Therefore, disqualification under Rule 44(1)(j) is also not applicable. Petitioners' names were mentioned in the draft voters list. Petitioners' nominations were rejected because of the alleged dual membership on the allegation that they joined subsequently in some other society. It will not make them disqualified on contesting the election under Rule 44. Therefore, action of the 1[st] W.P.(C).No.39027 of 2017 11 respondent in rejecting their nominations is illegal and I direct the 1[st] respondent to accept the nomination of the petitioners and allow the petitioner to contest the elections. The Original Petitions are allowed.” (underline supplied) 17. In **Ambatt Asokan's case (supra)** the petitioner therein challenged rejection of his nomination as a candidate for the election to the committee of Oachira Service Cooperative Bank Ltd. He became a member of that Bank on 18.8.1979. The rejection of nomination for the election was on the ground that the petitioner holds dual membership, inasmuch as, from 12.12.1997 he holds the membership of another Society of the same type, namely, Klappana Service Cooperative Bank Ltd. By applying the ratio in Natarajan's case (supra), this Court held that Rule 44(1) of the Co-operative Service Rules does not provide dual membership as a ground for disqualification of membership of the committee. This Court held further that, so long as there is no provision in the byelaws prohibiting dual membership, there is no infraction of the bye-laws as regards the matter of granting membership. As it was in **Natarajan's case** , in **Ambatt Asokan's case** also, no provision of the bye-laws of the co-operative society concerned W.P.(C).No.39027 of 2017 12 prohibiting dual membership could be pointed out. Paragraphs 4 and 5 of the said decision read thus; “4. The learned counsel appearing for the first respondent, which is now under an administrative committee, argued that, even applying the ratio of the decision in **Natarajan v. Returning Officer (1997 (2) KLT 253)** on facts, the liability is for removal from the rolls of the first respondent society since that was the society, of which the petitioner became a member, without the previous sanction of the Registrar in terms of Rule 27(1) of the Rules. 5. Going by Section 16 of the Act, the membership of a person to a society depends upon the decision of the committee of the society and the right to vote in terms of Section 20 can be exercised only after he has made such payments to the society, in respect of membership, or has acquired such interest in the society, as may be prescribed by the rules or the bye laws, going by Section 19 of the Act. Rule 35A(6)(d) referred to by the learned Senior Government Pleader provides that no member shall be nominated as a candidate for election, if he is ineligible to vote in the election. The eligibility to vote in the election could be considered by the returning officer by applying the ratio in Vijayakumar's case (1996 (1) KLT 285). Rule 44(1) does not provide dual membership as a ground for disqualification of membership of the committee. It was therefore that, it was held, in Natarajan's case (supra), among other things, that dual membership is not a ground of disqualification from W.P.(C).No.39027 of 2017 13 contesting in the election or to become a member of the committee, to which proposition, I am in complete agreement. Not only that, so long as there is no - provision in the bye laws prohibiting dual membership, - there is no infraction of the bye laws as regards the matter of granting membership. This is what has been stated in the opening paragraph in Natarajan's case, before the learned Judge proceeded to quote Rule 27(2) of the Rules in that judgment. No provision of the bye laws of the first respondent Society prohibiting dual membership is pointed out. As it was in Natarajan's case, in the case in hand also, the petitioner's name was included in the draft voters' list; it was not objected to by anybody and the final voters' list was published, on the strength of which the nomination has been made.” (underline supplied) 18. In **Ambatt Asokan's case (supra)** this Court held that, the provision in Rule 27(2) of the Co-operative Societies Rules obliging a society to act on a written requisition from the Registrar and to remove the person with dual membership, proceeds on the legislative intendment that he continues as a member till such removal. This means that his membership would continue to be otherwise valid and the removal can be triggered by the Registrar directing the Society to remove such a person from membership. 19. In **Subash K.S. v. Joint Registrar of Co-** W.P.(C).No.39027 of 2017 14 ## **operative Societies, Kottayam and others (2010 (1) KHC** **291)** this Court held that, the penalty for violation of Rule 27 (1) of the Co-operative Societies Rules having been prescribed in Rule 27(2), no other penalty can be conceived and enforced. The violation of Rule 27(1) can only lead to the result provided by Rule 27(2). Therefore, until the Registrar issues a written requisition in terms of Rule 27(2), the member admitted in violation of Rule 27(1) will continue as a member. 20. Relying on the decisions in **Ambatt Asokan's case** **(supra)** and **Subash's case (supra)** the learned counsel for the petitioner would contend that, until the Registrar issues a written requisition in terms of Rule 27(2) of the Co-operative Societies Rules, the petitioner who is admitted as a member of the 4[th] respondent Society, in violation of Rule 27(1), will continue as a member and as such, his membership in the other society is not a ground for disqualification from contesting in the election or to become a member of the Managing Committee of the 4[th] respondent Society. 21. As per Rule 44(1)(j) of the Co-operative Societies Rules, no member of a society shall be eligible for being elected or appointed as a member of the committee of the W.P.(C).No.39027 of 2017 15 society under Section 28 if he is disqualified under any other provisions in the bye-laws of the society. As already noticed, in **Natarajan's case** as well as in **Ambatt Asokan's case** there was no provision in the bye-laws of the respective Cooperative Societies prohibiting such dual membership. Therefore, this Court held that, so long as there is no provision in the bye-laws prohibiting dual membership, there is no infraction of the bye-laws as regards the matter of granting membership. In that context, after referring to the provisions under Rule 27(2) it was held that, the membership of such member will continue to be otherwise valid and the removal can be triggered by the Registrar directing the Society to remove such a person from membership. The said principle was reiterated in **Subash's case** . 22. In the instant case, sub-clause (3) of Clause 7 of the bye-laws of the 4[th] respondent Society provides that, no person, who is a member of any other Primary Credit Cooperative Society, shall be admitted or continue as a member of the 4[th] respondent Society without the permission of the Registrar by general or special order. Further, as per subclause (5) of Clause 7, any member incurring such W.P.(C).No.39027 of 2017 16 disqualification under sub-clause (3) of Clause 7 shall cease to be a member of the 4[th] respondent Society. Therefore, the petitioner who acquired membership in the 4[th] respondent Society, while continuing as a member of Kumaramangalam Service Co-operative Bank Ltd., has incurred disqualification under Rule 44(1)(j) of the Rules, which would disentitle her from being elected to the Managing Committee of the 4[th] respondent Society. In that view of the matter, the rejection of her nomination by Ext.P2 order is perfectly legal and proper, which warrants no interference, invoking the discretionary jurisdiction under Article 226 of the Constitution of India. 23. It is pertinent to note that, the petitioner can raise any dispute arising in connection with the election conducted to the Managing Committee of the 4[th] respondent Society, before the Co-operative Arbitration Court constituted under Section 70A of the Co-operative Societies Act, 1969, by invoking the statutory remedy available under Section 69 of the said Act, within one month from the date of election. 24. 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 W.P.(C).No.39027 of 2017 17 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 said view has been reiterated in **Pankajaksha Panicker v. Venugopalan Nair (1993 (2) KLT 641)** . 25. 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 W.P.(C).No.39027 of 2017 18 Article 226 of the Constitution of India. 26. 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 Co-operative 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. 27. 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 W.P.(C).No.39027 of 2017 19 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' 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. 28. 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 W.P.(C).No.39027 of 2017 20 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 of the election. 29. 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 calender. 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 W.P.(C).No.39027 of 2017 21 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. 30. In **Santhosh A.P. v. State Election Commission, Kerala and others (2015 (5) KHC 599)** , in the context of the provisions under the Kerala Panchayat Raj Act, 1994, this Court declined interference under Article 226 of the Constitution of India on the ground that, improper rejection of the nomination papers is a specific ground available under Section 102(1)(c) of the said Act, in addition to other grounds, for declaring the election to be void in an election petition. The judgment in **Santhosh's case** has been affirmed by a Division Bench of this Court in **W.A.No. 339 of 2016** filed by the State Election Commission and another. 31. In view of the law laid down in the decisions referred to supra, if rejection of nomination paper is patently illegal or on totally untenable grounds and there is no need to W.P.(C).No.39027 of 2017 22 adduce elaborate oral or documentary evidence in order to substantiate the said contention, then this Court can interfere with the rejection of nomination paper, invoking writ jurisdiction under Article 226 of the Constitution of India, without upsetting the election calender. In all other cases, the person aggrieved has to avail the statutory remedy available under Section 69 of the Co-operative Societies Act, before the Co-operative Arbitration Court constituted under Section 70A of the said Act, by raising dispute, within one month from the date of election. 32. In such circumstances, no interference is warranted on Ext.P2 order, whereby the nomination paper submitted by the petitioner stands rejected on the ground that she is also a member of Kumaramangalam Service Co-operative Bank Ltd. and as such, disqualified to contest in the election to the Board of Directors of the 4[th] respondent Society. In the result, this writ petition fails and the same is, accordingly, dismissed. Sd/- ## **ANIL K. NARENDRAN** **JUDGE** AV // True copy P.A. To Judge//