O.V. Appachan v. Joint Registrar of Co-operative Societies (General), Kalpetta & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY ,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940** ## **WP(C).No. 1007 of 2019** ## **PETITIONER :** **O.V.APPACHAN,AGED 69 YEARS,S/O.VARKEY, ORAVANAMTHALATHIL HOUSE, PALLIKUNNU P.O., WAYANAD.** **BY ADVS. SRI.P.N.MOHANAN SMT.AMRUTHA SURESH SRI.C.P.SABARI** ## **RESPONDENTS:** - **1 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), KALPETTA, NORTH WAYANAD-673121.** - **2 WAYANAD DISTRICT WHOLESALE CO-OPERATIVE STORE LTD. W 36, REPRESENTED BY MANAGING DIRECTOR, KALPETTA, WAYANAD-673121.** - **3 KERALA STATE CO-OPERATIVE CONSUMERS FEDERATION LTD.,REPRESENTED BY MANAGING DIRECTOR, GANDHI NAGAR, ERNAKULAM-682020.** - **4 GOKUL DAS,KOTTAYIL HOUSE, KALPETTA, WAYANAD-673121.** - **5 RETURNING OFFICER TO CONSUMER FEDERATION, ASSISTANT REGISTRAR, PLANNING, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G), ERNAKULAM682030.** - **6 ELECTORAL OFFICER TO CONSUMER FEDERATION, DEPUTY REGISTRAR, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), ERNAKULAM-682030.** - **BY ADVS. SRI.K.R.SUNIL SRI.M.SASINDRAN, SC, CONSUMERFED SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER;** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 1007 of 2019** **2** ## **JUDGMENT** The petitioner, who is a member in the Managing Committee of the 2[nd] respondent Wayanad District Wholesale Co-operative Store, which is a Society registered under the provisions of the Kerala Cooperative Societies Act, 1969 and the rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1[st] respondent Joint Registrar to consider Ext.P6 representation dated 09.01.2019 and pass appropriate orders within a time frame to be fixed by this Court, after affording an opportunity of hearing to the affected parties. The further reliefs sought for are a writ of certiorari to quash Ext.P4 resolution dated 08.01.2019 of the Managing Committee of the 3[rd] respondent Federation; to set aside the nomination of the 4[th] respondent submitted pursuant to Ext.P3 election notification dated 17.12.2018 issued by the State Cooperative Election Commission, as the 4[th] respondent is **WP(C).No. 1007 of 2019** **3** not included in the final voters list published on 01.01.2019; and a declaration that the 4[th] respondent cannot submit any nomination as he is not included in the final voters list published on 01.01.2019 as per Ext.P3 election schedule. 2. On 14.01.2019, when this writ petition came up for admission, this Court noticed that though one of the reliefs sought for in the writ petition is a writ of certiorari to quash Ext.P4 resolution taken by the Managing Committee of the 2[nd] respondent Society, the said document is incomplete and it was without noticing the said fact that the Registry has numbered the writ petition. Therefore, the Registry was directed to get explanation from the concerned Filing Scrutiny Officer. The learned counsel for the petitioner submitted that a copy of the document marked as Ext.P4 shall be substituted with a proper copy. 3. Thereafter, on 15.01.2019, when this writ petition came up for consideration, the same was adjourned to **WP(C).No. 1007 of 2019** **4** 21.01.2019 as requested by the learned counsel for the petitioner, after recording the submission made by the learned counsel that in addition to Ext.P4, Exts.P5 and P6 documents shall also be substituted by proper copies. 4. On 21.01.2019, when this writ petition came up for further consideration, the learned counsel for the petitioner submitted that the petitioner shall produce the typed copies of Exts.P4 to P6 and accordingly, the matter was adjourned to 23.01.2019. 5. On 23.01.2019, this Court passed the following order; “Along with a memo dated 23.01.2019, the learned counsel for the petitioner has produced typed copies of Exts.P4, P5 and P6. The said memo is recorded. 2. The learned counsel for the petitioner would submit that the petitioner shall take out notice to the respondents by special messenger. 3. The learned Senior Government Pleader takes notice on admission for respondents 1, 5 and 6. The learned Standing Counsel for Consumer Fed takes notice on admission for the 3[rd] respondent. Issue urgent notice on admission by special messenger to respondents 2 and 4, returnable by 25.01.2019. It is made clear that, pendency of this writ petition will **WP(C).No. 1007 of 2019** **5** not stand in the way of any dispute arising out of the election to the Managing Committee of the 3[rd] respondent, which is scheduled to be held on 24.01.2019, in terms of Ext.P3 election notification dated 17.12.2018 issued by the State Co-operative Election Commission being referred to the Co-operative Arbitration Court by invoking the provisions under Section 69 of the Kerala Co-operative Societies Act, within the time limit specified therein.” 6. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1, 5 and 6, the learned counsel appearing for respondents 2 and 4 and also the learned Standing Counsel for the 3[rd] respondent CONSUMERFED. 7. The election to the Board of Directors of the 3[rd] respondent Federation, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the rules made thereunder was scheduled to be held on 24.01.2019, in terms of Ext.P3 notification dated 17.12.2018 issued by the State Co-operative Election Commission. In terms of the said notification, the preliminary voters list was published on 22.12.2018 at **WP(C).No. 1007 of 2019** **6** 11.00 a.m. Objections were called for to the preliminary voters list from 22.12.2018 11.00 a.m to 29.12.2018 5.00 p.m. Objections were considered by the Electoral Officer and the final voters list was published on 01.01.2019 at 11.00 a.m. Thereafter, nominations were submitted on 10.01.2019 from 11.00 a.m. and after the scrutiny of nomination on 11.01.2019 11.00 a.m. onwards, the list of valid nominations was published. According to the petitioner, the nomination of the 4[th] respondent is invalid as his name was not included in the final voters list published on 01.01.2019. It was pointing out the said fact that the petitioner submitted Ext.P6 representation dated 09.01.2019 before the 1[st] respondent Joint Registrar of Co-operative Societies. 8. Per contra, the learned Standing Counsel for the 3[rd] respondent and also the learned counsel for the 4[th] respondent would contend that the nomination of the 4[th] respondent is perfectly valid and legal, which warrants no interference of this Court in exercise of the writ **WP(C).No. 1007 of 2019** **7** jurisdiction under Article 226 of the Constitution of India, especially when the petitioner is having an efficacious remedy by way of approaching the Co-operative Arbitration Court, under Section 69 of the Kerala Cooperative Societies Act. The learned Senior Government Pleader for respondents 2, 5 and 6 would also advanced similar arguments. 9. Having considered the submissions made by the learned counsel on both sides, this Court finds that if there is any illegality or irregularity in the participation of the 4[th] respondent in the process of election to the Managing Committee of the 3[rd] respondent Federation conducted pursuant to Ext.P3 election notification dated 17.12.2018 issued by the State Co-operative Election Commission, such dispute 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. Clause (c) of sub-section (2) of Section **WP(C).No. 1007 of 2019** **8** 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 subsection (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 Co-operative Election Commission. If that be so, any dispute in relation to preparation of final voters list by the Electoral Officer or in the conduct of election by the Returning Officer, etc., in exercise of his powers under 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 **WP(C).No. 1007 of 2019** **9** available under Section 69 of that Act, within one month from the date of election. 10. 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 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. **WP(C).No. 1007 of 2019** **10** 11. 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. 12. 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 **WP(C).No. 1007 of 2019** **11** 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 procedure and guidelines for the conduct of such elections. 13. 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 Co-operative **WP(C).No. 1007 of 2019** **12** 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. 14. Having considered the submissions made by the learned counsel on both sides and the pleadings and materials on record, conclusion is irresistible that if the petitioner is having any dispute in connection with the election to the Board of Directors of the 3[rd] respondent Federation, he has to raise such disputes before the Cooperative Arbitration Court by invoking the statutory remedy available under Section 69 of the Act, within a period of one month from the date of election and as **WP(C).No. 1007 of 2019** **13** such, he cannot approach this Court seeking interference under Article 226 of the Constitution of India. In the result, 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 Board of Directors of the 3[rd] respondent Federation, conducted in terms of Ext.P3 election notification issued by the State Co-operative Election Commission, by invoking the statutory remedy available under Section 69 of the Act, within a period of one month from the date of election. **Sd/-** ## **ANIL K.NARENDRAN,JUDGE** AV/30/1 **WP(C).No. 1007 of 2019** **14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE RESOLUTION DATED 26.6.2014 OF THE MANAGING COMMITTEE OF THE SECOND RESPONDENT.** **EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 25.11.2017 OF THE REGISTRAR OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES.** **EXHIBIT P3 A TRUE COPY OF THE ELECTION NOTIFICATION DATED 17.12.2018 OF THE ENGLISH COMMISSION.** **EXHIBIT P4 A TRUE COPY OF THE RESOLUTION OF THE MANAGING COMMITTEE DATED 08.01.2019.** **EXHIBIT P5 A TRUE COPY OF THE OBJECTION DATED 08.01.2019 OF THE PETITIONER SUBMITTED BEFORE THE SECOND RESPONDENT.** **EXHIBIT P6 A TRUE COPY OF THE PETITION SUBMITTED BEFORE THE 1ST RESPONDENT ON 09.01.2019.**