P. Syed v. 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 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940** # **WP(C).No. 29966 of 2018** ## **PETITIONER:** **P. SYED, AGED 59 YEARS S/O VEERAN, PADINJATTEE HOUSE, MANNARKKAD COLLEGE PO, PALAKKAD.** **BY ADVS. B.S. SWATHY KUMAR SMT.ANITHA RAVINDRAN SRI.HARISANKAR N UNNI SMT. ANJU O A SMT.P.S.BHAGYA SURABHI** ## **RESPONDENTS:** - **1 STATE CO-OPERATIVE ELECTION COMMISSION 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN, THIRUVANANTHAPURAM 695 033.** - **2 THE ELECTORAL OFFICER (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(G) MANNARKKAD) ELECTION TO THE MANAGING COMMITTEE OF THE KUMARAMPUTHUR CO-OPERATIVE HOUSING SOCIETY LTD.NO.P 813, KUMARAMPUTHUR, MANNARKKAD COLLEGE P.O., PALAKKAD, PIN-678 583.** - **3 THE RETURNING OFFICER(INSPECTOR/A AND E, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(G), MANNARKKAD), KUMARAMPUTHUR CO-OPERATIVE HOUSING SOCIETY LTD.NO.P 813, KUMARAMPUTHUR, MANNARKKAD COLLEGE P.O., PALAKKAD, PIN-678 583.** - **4 THE KUMARAMPUTHUR CO-OPERATIVE HOUSING SOCIETY LTD.NO.P 813,** - **KUMARAMPUTHUR, MANNARKKAD COLLEGE P.O., PALAKKAD, PIN-678 583, REPRESENTED BY ITS SECRETARY.** **BY ADVS. SMT.APARNA RAJAN SRI.SREEDHAR RAVINDRAN** ## **OTHER PRESENT:** ## **SMT C.S SHEEJA, SENIOR GOVERNMENT PLEADER** WPC 29966/18 2 **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **JUDGMENT** The petitioner, who is a member of the 4[th] respondent Co-operative Housing Society, who was also the elected president of the said Society for several years, has filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that Ext.P2 election notification dated 23.08.2018, issued by the 1[st] respondent State Co-operative Election Commission is illegal and unsustainable, since it is not in conformity with the provisions of the bye-laws of the said Society, which stipulates the constituencies in the general seats. The petitioner has also sought for a writ of certiorari to quash Ext.P2 election notification or in the alternate, to direct the 2[nd] respondent to ensure that all members who come with the photographs should be issued with the WPC 29966/18 3 identity cards and also an order directing the 3[rd] respondent Returning Officer to allow the members who come with identity card issued by the election commission, driving license, pan card, passport or Adhar card to vote in the election. 2. On 12.09.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 3. Urgent notice by special messenger was ordered to the 4[th] respondent, returnable by 18.09.2018. The learned Senior Government Pleader was directed to get instructions. 3. A counter affidavit has been filed on behalf of the 4[th] respondent, opposing the reliefs sought for. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3 and also the learned counsel for the 4[th] respondent Co-operative WPC 29966/18 4 Housing Society. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P2 election notification dated 23.08.2018, issued by the 1[st] respondent State Co-operative Election Commission in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 6. Ext.P2 election notification, which is under challenge in this writ petition, is one issued by the 1[st] respondent State Co-operative Election Commission, whereby the election to the Managing Committee of the 4[th] respondent Society is scheduled to be held on 30.09.2018. Though, Ext.P2 notification is one dated 23.08.2018, the petitioner has chosen to file this writ petition before this Court only on 11.09.2018, when the election is scheduled to be held on 30.09.2018. 7. Placing reliance on Ext.P2 election WPC 29966/18 5 notification, the learned counsel for the petitioner would contend that right from the registration of the 4[th] respondent Society, its bye-laws provides for election to the Managing Committee, by fixing total seats as 11 out of which, 6 general seats are divided on constituency basis. However, while issuing Ext.P2 election notification, the general seats are divided on ward basis, namely, Kumaramputhur Panchayath, Kottampadam Panchayath, Alanalloor Panchayath, Thachanattukara Panchayath, Mannarkkad Panchayath and Thekkara Panchayath. 8. Placing reliance on Clause (ii) of subrule (3) of Rule 35A of the Kerala Co-operative Societies Rules, 1969 the learned counsel for the petitioner would submit that the notification issued by the State Co-operative Election Commission to conduct election to the Managing Committee of a Society shall contain any area of constituency, that is specified in the bye-laws WPC 29966/18 6 from which members are to be elected. Therefore, the learned counsel would contend that Ext.P2 notification issued by the 1[st] respondent State Cooperative Election Commission is not one in conformity with the provisions under sub-rule (3) of Rule 35A of the Rules and as such, the same is liable to be set aside. 9. Per contra, the learned Senior Government Pleader for respondents 1 to 3 and also the learned Senior Counsel for the 4[th] respondent Society would place reliance on the 3[rd] proviso to sub-section(1) of Section 28 of the Kerala Co- operative Societies Act, inserted by the Kerala Co-operative Society (Amendment) Act, 2017, with effect from 10.04.2017, which provides that the election to the Committees of the Society shall not be conducted on ward basis, irrespective of any provision contained in the bye-laws of the Society. 10. If the petitioner is having any dispute WPC 29966/18 7 in connection with the election to the Managing Committee of the 4[th] respondent Society, which is scheduled to be held on 30.09.2018, in terms of Ext.P2 election notification dated 23.08.2018 issued by the 1[st] respondent 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 WPC 29966/18 8 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. 11. 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 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 WPC 29966/18 9 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. 12. 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 WPC 29966/18 10 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. 13. 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 WPC 29966/18 11 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. 14. 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, WPC 29966/18 12 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. 15. 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 subsection (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 WPC 29966/18 13 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. 16. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, if the petitioner is having any dispute in connection with the election to the Managing Committee of the 4[th] respondent Society scheduled to be held on 30.09.2018 in terms of Ext.P2 election notification issued by the 1[st] respondent State Co-operative Election Commission, he has to avail the statutory remedy under Section 69 of the Act, within one month from the date of election and as such he cannot approach this Court in this writ petition, seeking interference under Article 226 of the Constitution of India. In such circumstances, the relief sought for in this writ WPC 29966/18 14 petition challenging Ext.P2 notification issued by the 1[st] respondent State Co-operative Election Commission can only be repelled, without prejudice to the right of the petitioner 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. 17. The alternative relief sought for in this writ petition is a writ of mandamus commanding 2[nd] respondent Electoral Officer to ensure that all members who come with the photographs should be issued with the identity cards and also to direct the 3[rd] respondent Returning Officer to allow the members who come with identity card issued by the Election Commission, driving license, pan card, passport or Adhar card to vote in the election. 18. In **Bharat Singh v. State of Haryana (AIR 1988 SC 2181)** , the Apex Court held that, when a WPC 29966/18 15 point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter-affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. 19. The pleading and materials on record WPC 29966/18 16 would not indicate as to whether the petitioner has already made any such request before the 2[nd] and 3[rd] respondents. In the absence any such materials the petitioner cannot seek the alternative relief sought for in this writ petition. In the result, this writ petition fails and the same is accordingly dismissed; however, without prejudice to the right of the petitioner as stated before herein. Sd/- **ANIL K.NARENDRAN, JUDGE** ## APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO.E(2)1964/2013/SCEC DATED 20.08.2013 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE NOTIFICATION NO.E(2)5932/2018/SCEC DATED 23.08.2018 ISSUED BY THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS: NIL // TRUE COPY // PA TO JUDGE RR