M.V.KUNJUKUNJU and others v. Registrar of Co-operative Societies, State Co-operative Election Commission, Assistant Registrar (General) of Co-operative Societies, Chalakudy, Chalakudy Urban Co-operative Bank Ltd and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** ## **WP(C).No. 4078 of 2019** ## **PETITIONERS:** - **1 M.V.KUNJUKUNJU, AGED 75 YEARS, S/O.VAARU, MANGADAN VEEDU, CHANDANAKUNNE, CHATTIKULAM P.O., THRISSUR DISTRICT.** - **2 SKARIAH PAUL, MANJOORAN VEEDU, CHALAKKUDI P.O., THRISSUR DISTRICT.** - **3 JOHNSON.C.D., CHERAPPANATH HOUSE, NORTH CHALAKUDI, CHALAKUDI P.O., THRISSUR DISTRICT.** **BY ADVS.SRI.T.A.UNNIKRISHNAN SRI.K.K.AKHIL** ## **RESPONDENTS:** - **1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM, PIN-695 001.** - **2 THE STATE CO-OPERATIVE ELECTION COMMISSION, IIIRD FLOOR, CO-BANK TOWER, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM REPRESENTED BY ADDITIONAL REGISTRAR/SECRETARY, PIN-695 033.** - **3 THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, CHALAKUDY, THRISSUR-680 307.** **WP(C).No. 4078 of 2019** -2- **4 UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL)CHALAKUDY, THRISSUR-680 307. 5 THE CHALAKUDY URBAN CO-OPERATIVE BANK LTD NO.R.1087, REPRESENTED BY ITS SECRETARY, CHALAKUDY, THRISSUR - 680 307. BY ADVS. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.K.R.MONISHA SMT.V.T.LITHA SRI.THOMAS T.VARGHESE** ## **SMT C.S.SHEEJA,SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 4078 of 2019** -3- ## **JUDGMENT** The petitioners, who are members of the 5[th] respondent Bank, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 3 and 4 to accept the nominations made by the petitioners, pursuant to Ext.P1 election notification dated 14.01.2019 issued by the 2[nd] respondent State Co-operative Election Commission as valid and continue with the process of election. As per Ext.P1 notification, election to the Managing Committee of the 5[th] respondent Society is scheduled to be held on 21.02.2019. 2. On 12.02.2019, when this writ petition came up for admission, the learned Senior Government took notice on admission for respondents 1 to 4. Urgent notice on admission by special messenger was ordered to the 5[th] respondent, returnable by 15.02.2019. The learned Senior **WP(C).No. 4078 of 2019** -4- Government Pleader was directed to get instructions. 3. On 15.02.2019, when this writ petition came up for consideration, the learned counsel for the petitioners sought adjournment and accordingly, the matter was listed to 18.02.2019 for further consideration. 4. On 18.02.2019, the learned Senior Government Pleader, on instructions, submitted that the 4[th] respondent Returning Officer has already issued an order, rejecting the nominations of the petitioners and a copy of the same shall be made available for the perusal of this Court. Accordingly, the matter was ordered to be listed today for further consideration. 5. A counter affidavit has been filed by the 5[th] respondent Society, opposing the reliefs sought for in this writ petition. In the counter affidavit, it is contended that the rejection of nominations made by the petitioners can be challenged by invoking the statutory remedy under Section 69 of the Kerala Co-operative Societies Act and as such, the present writ petition is not maintainable. The 5[th] **WP(C).No. 4078 of 2019** -5- respondent would also point out that the scrutiny of nominations, in terms of Ext.P1 election notification, was held on 06.02.2019 at 11.00 am. Petitioners 1 and 2 were not present at the time of scrutiny. The 3[rd] petitioner, who was present at the time of scrutiny, has also not raised any objection against the rejection of his nomination. Relying on the document marked as Ext.R5, the learned counsel for the 5[th] respondent would point out that the payment as per Exts.P3 and P4 was made after 1.00 pm on 05.02.2019 and the payment as per Ext.P5 was made on 06.02.2019. 6. Heard the learned counsel for the petitioners, the learned Senior Government Pleader appearing for respondents 1 to 4 and also the learned counsel for the 5[th] respondent Bank. 7. The grievance of the petitioners is against rejection of their nominations submitted pursuant to Ext.P1 election notification dated 14.01.2019 issued by the 2[nd] respondent State Co-operative Election **WP(C).No. 4078 of 2019** -6- Commission. During the course of arguments, the learned Senior Government Pleader has made available for the perusal of this Court a copy of the proceedings dated 06.02.2019 of the 4[th] respondent, who is the Returning Officer, whereby the nominations made by the petitioners stand rejected. 8. The date of submission of nomination as per Ext.P1 election notification was 05.02.2019. As per the documents marked as Exts.P3 and P4, petitioners 1 and 2 have cleared the arrears on 05.02.2019 and as per Ext.P5, the 3[rd] petitioner has cleared the arrears on 06.02.2019. Relying on Exts.P3 to P5, the petitioners would contend that the rejection of their nominations by the 4[th] respondent Returning Officer is illegal, which requires interference of this Court under Article 226 of the Constitution of India. 9. Per contra, the learned counsel for the 5[th] respondent would point out that the remittance made by petitioners 1 and 2, vide Exts.P3 and P4, was after **WP(C).No. 4078 of 2019** -7- submission of nomination and that the remittance made by the 3[rd] petitioner vide Ext.P5 was on 06.02.2019. 10. The question as to whether the rejection of the nominations made by the petitioners are irregular or not is a dispute, which can be raised before the Co-operative Arbitration Court, by invoking the statutory remedy under Section 69 of the Kerala Co-operative Societies Act. In this writ petition, the petitioners have not challenged the rejection of their nominations, by seeking appropriate relief against the order dated 06.02.2019 of the 4[th] respondent Returning Officer. In the absence of any such relief, a writ of mandamus cannot be issued to respondents 3 and 4 to accept the nominations made by the petitioners pursuant to Ext.P1 election notification. 11. If the petitioners are having any dispute in connection with the rejection of their nominations submitted pursuant to Ext.P1 election notification dated 14.01.2019 issued by the 2[nd] respondent State Co-operative Election Commission, such dispute can be raised before the **WP(C).No. 4078 of 2019** -8- 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, 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 Cooperative Election Commission. Rule 35A(6)(e)(ii) deals with rejection of nomination paper. If that be so, any dispute in relation to rejection of nomination paper by the Electoral Officer, in exercise of his powers under under sub- **WP(C).No. 4078 of 2019** -9- rule (6) of Rule 35A of the Rules, is a dispute arising in connection with that election, which can be raised before the Cooperative 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. 12. 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 Cooperative 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 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 **WP(C).No. 4078 of 2019** -10- 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. 13. 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 of the election. **WP(C).No. 4078 of 2019** -11- 14. 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 process of election to a Society registered. **WP(C).No. 4078 of 2019** -12- 15. 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 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 cooperative 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. 16. 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 **WP(C).No. 4078 of 2019** -13- 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. 17. In the result, this writ petition is dismissed, without prejudice to the right of the petitioners to raise any dispute arising in connection with the rejection of their nominations pursuant to Ext.P1 election notification issued by the 2[nd] respondent State Co-operative Election Commission, by invoking the statutory remedy available **WP(C).No. 4078 of 2019** -14- under Section 69 of the Act, within a period of one month from the date of election. It is made clear that the observations, if any, made in this judgment, touching the merits of the factual contentions, are made for the limited 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 rejection of their nominations pursuant to Ext.P1 election notification, untrammelled by any such observations. Sd/- **ANIL K. NARENDRAN JUDGE** bpr **WP(C).No. 4078 of 2019** -15- ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE NOTIFICATION DATED 14/1/2019 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE NOTICE OF GENERAL BODY MEETING DATED 12/1/19 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE CHALAN DATED 5/2/19 ISSUED BY THE BANK TO THE 1ST PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE CHALAN DATED 5/2/19 ISSUED BY THE BANK TO THE 2ND PETITIONER.** **EXHIBIT P5 TRUE COPY OF THE CHALAN DATED 5/2/19 ISSUED BY THE BANK TO THE 3RD PETITIONER.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R5 TRUE COPY OF THE REPORT SUBMITTED BY THE 5TH RESPONDENT TO THE RETURNING OFFICER DATED 06.02.2019.** **//TRUE COPY//** **P.A. TO JUDGE**