Mohananan Pillai S. and others v. Joint Registrar of Co-operative Societies (General), Kollam; Electoral Officer, Kollam District Labour Welfare Co-operative Society Limited No.Q.1541; Returning Officer, Kollam District Labour Welfare Co-operative Society Limited No.Q.1541; Kollam District Labour Welfare Co-Operative Society Limited No.Q.1541; State Co-Operative Election Commission, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ||**THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN**| |---|---| |**WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940**|| ||**WP(C).No. 30043 of 2018**| |**PETITIONERS**<br>**:**|| |**1**|**MOHANAN PILLAI S.,**| ||**AGED 58 YEARS,**| ||**VASATHA VILASOM,**| ||**VENKOLLA POST,KOTTARAKKARA 691541**| |**2**|**AJITHKUMAR,**| ||**A.S. BHAVAN,**| ||**THOOTTIKKAL,**| ||**MATHIRA POST,**| ||**KOTTARAKKARA - 691 536.**| |**3**|**ANILKUMAR.B.,**| ||**SAJANA MANDIRAM,**| ||**MATHIRA POST,**| ||**KOTTARAKKARA - 691 536.**| |**4**|**PRASAD,**| ||**SREE BHAVAN,**| ||**KOCHALUMMOODU,**| ||**CHITHARA POST,**| ||**KOTTARAKKARA - 691 559.**| |**5**|**PRASOBHANAN.K.,**| ||**DIVYALAYAM,**| ||**CHITHARA, AYIRAKKUZHI POST,**| ||**KOTTARAKKARA - 691 559.**| |**6**|**AJITHKUMAR.S.,**| ||**AJITH VILASOM,**| ||**KANJIRATHUMMOOD,**| ||**AYIRAKKUZHI POST,**| ||**KOTTARAKKARA - 691 559.**| |**7**|**ANILKUMAR.K.,**| ||**ANITHAVILASOM,**| ||**KOCHALUMMOODU,**| ||**VALAVUPACHA POST,**| ||**KOTTARAKKARA - 691 559.**| **WP(C).No. 30043 of 2018** -2- **8** **SHIBU.S., VAISHNAVAM, AYIRAKKUZHI POST, KOTTARAKKARA - 691 559.** **BY ADVS.SRI.P.K.VIJAYAMOHANAN SRI.NISHIL.P.S.** ## **RESPONDENTS:** - **1 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, (GENERAL), KOLLAM CIVIL STATION,KOLLAM 691001** - **2 THE ELECTORAL OFFICER, KOLLAM DISTRICT LABOURS WELFARE CO-OPERATIVE SOCIETY LIMITED NO.Q.1541, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTARAKKARA POST, KOLLAM - 691 506.** - **3 THE RETURNING OFFICER, KOLLAM DISTRICT LABOURS WELFARE CO-OPERATIVE SOCIETY LIMITED NO.Q.1541, UNIT INSPECTOR, VETTIKKAVALA UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTARAKKARA POST, KOLLAM - 691 506.** **4 THE KOLLAM DISTRICT LABOURS WELFARE CO-OPERATIVE SOCIETY LIMITED NO.Q.1541, VALAVUPACHA, KOTTARAKKARA, REPRESENTED BY THE PART TIME ADMINISTRATOR/ UNIT INSPECTOR, CHADAYAMANGALAM UNIT, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTARAKKARA POST, KOLLAM - 691 506.** - **5 THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM - 695 033.** ## **OTHER PRESENT:** > **R1-R3&R5 SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 30043 of 2018** -3- ## **JUDGMENT** The 1[st] petitioner, who is stated to be the founder member of the 4[th] respondent Society, along with petitioners 2 to 8, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent Electoral Officer to consider Ext.P11 objection dated nil submitted to the preliminary voters list published in terms of Ext.P10 election notification dated 20.08.2018 issued by the 5[th] respondent State Co-operative Election Commission, for election to the Managing Committee of the 4[th] respondent Society scheduled to be held on 04.10.2018. The petitioners have also sought for other consequential reliefs. 2. On 13.09.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 3 and 5. Urgent notice on admission by special messenger was ordered to the 4[th] respondent, returnable on 18.09.2018. The learned Senior Government Pleader sought time to get instructions. **WP(C).No. 30043 of 2018** -4- Despite service of notice, none appears for the 4[th] respondent Society. 3. Today, when this case is taken up for consideration, the learned Senior Government Pleader seeks further time to file statement. 4. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for respondents 1 to 3 and 5. 5. The pleadings and materials on record would show that, in terms of Ext.P10 notification issued by the 5[th] respondent State Co-operative Election Commission, the 2[nd] respondent Electoral Officer published a preliminary voters list on 30.08.2018. On 05.09.2018, petitioners 2 to 8 and others submitted Ext.P11 objection to the preliminary voters list. 6. The learned Senior Government Pleader would submit that, based on Ext.P11 complaint, the 2[nd] respondent issued notice for personal appearance on 08.09.2018 at 11.00 am. However, none of the persons included in Ext.P11 turned up. After perusing Ext.P11 objection and also the admission register and other relevant documents, the 2[nd] respondent published Ext.P16 final voters list. **WP(C).No. 30043 of 2018** -5- 7. 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 04.10.2018, in terms of Ext.P10 election notification dated 20.08.2018 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-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 **WP(C).No. 30043 of 2018** -6- the State Co-operative Election Commission. Ext.P5 final voters list is one published by the 3rd 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.P16 final voters list published by the 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 invoking the statutory remedy available under Section 69 of that Act, within one month from the date of election. 8. 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 Cooperative 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 **WP(C).No. 30043 of 2018** -7- 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. 9. 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 **WP(C).No. 30043 of 2018** -8- 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. 10. 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 **WP(C).No. 30043 of 2018** -9- 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. 11. 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 **WP(C).No. 30043 of 2018** -10- procedure and guidelines for the conduct of such elections. 12. 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 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. **WP(C).No. 30043 of 2018** -11- 13. 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 Ext.P16 final voters list published by the 2[nd] respondent Electoral Officer, they will have to raise such dispute before the Cooperative 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. In such circumstances, this writ petition is dismissed, however, without prejudice to the right of the 1[st] petitioner to raise any dispute arising in connection with the election conducted pursuant to Ext.P10 notification to the Managing Committee of the **WP(C).No. 30043 of 2018** -12- 4[th] respondent Society 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** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE EXTRACT OF THE 1ST PAGE OF THE BYELAWS OF THE SOCIETY.** **EXHIBIT P2 TRUE EXTRACT OF THE MINUTES DATED 15/04/2012 OF THE PROMOTING COMMITTEE OF THE SOCIETY.** **EXHIBIT P3 TRUE COPY OF THE IDENTITY CARD OF THE 2ND PETITIONER WITH MEMBER NO.314. EXHIBIT P4 TRUE COPY OF THE IDENTITY CARD OF THE 3RD PETITIONER WITH MEMBER NO.315. EXHIBIT P5 TRUE COPY OF THE IDENTITY CARD OF THE 4TH PETITIONER WITH MEMBER NO.306. EXHIBIT P6 TRUE COPY OF THE IDENTITY CARD OF THE 5TH PETITIONER WITH MEMBER NO.303. EXHIBIT P7 TRUE COPY OF THE IDENTITY CARD OF THE 6TH PETITIONER WITH MEMBER NO.309. EXHIBIT P8 TRUE COPY OF THE IDENTITY CARD OF THE 7TH PETITIONER WITH MEMBER NO.295.** **EXHIBIT P9 TRUE COPY OF IDENTITY CARD OF THE 8TH PETITIONER WITH MEMBER NO.310.** **EXHIBIT P10** **TRUE COPY OF THE ELECTION NOTIFICATION NO.E(2)5809/2018/SCEC DATED 20/08/2018 OF THE 5TH RESPONDENT.** **WP(C).No. 30043 of 2018** -13- **EXHIBIT P11 TRUE COPY OF THE OBJECTION BEFORE THE 2ND RESPONDENT IN RESPECT OF EXCLUSION OF 200 MEMBERS FROM THE DRAFT VOTERS LIST DATE NIL. EXHIBIT P12 TRUE COPY OF THE OBJECTION DATED 05/09/2018 OF THE 4TH PETITIONER. EXHIBIT P13 TRUE COPY OF THE OBJECTION DATED 05/09/2018 OF THE 7TH PETITIONER. EXHIBIT P14 TRUE EXTRACT FROM THE MINUTES BOOK PAGES 111, 112 AND 113. EXHIBIT P15 TRUE EXTRACT FROM THE MINUTES BOOK PAGES 81 AND 82. EXHIBIT P16 TRUE EXTRACT OF THE FIRST AND LAST PAGES OF THE FINAL VOTERS LIST. RESPONDENTS' EXHIBITS: NIL** **//TRUE COPY// P.A. TO JUDGE** ## **bpr**