P. VASU and ANTONY K.J. 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 14TH DAY OF JANUARY 2019 / 24TH POUSHA, 1940** ## **WP(C).No. 393 of 2019** ## **PETITIONERS:** - **1 P. VASU, AGED 68 YEARS, MUKKALLIL HOUSE, P.O. KAYANNA, PERAMBRA, KOZHIKODE.** **2 ANTONY K.J., KOONANTHADATHIL @ BABU KOONANTHADATHIL, KOONANTHADATHIL HOUSE, PERAMBRA, KOZHIKODE.** **BY ADV. SRI.P.P.JACOB** ## **RESPONDENTS:** - **1 THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM, 3RD FLOOR, CO-BANK TOWERS, PALAYAM VIKAS BHAVAN P.O., THIRUVANANTHAURAM-695003, REPRESENTED BY ITS SECRETARY.** - **2 THE ELECTORAL OFFICER, CHAKKITTAPARA SERVICE CO-OPERATIVE BANK LTD. NO.F. 1675, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), QUILANDI, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), QUILANDI, KOZHIKODE-673602.** - **3 THE RETURNING OFFICER, CHAKKITTAPARA SERIVCE CO-OPERATIVE BANK LTD. NO.1675, PERAMBRA UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), QUILANDI, KOZHIKODE-673602.** - **4 THE CHAKKITTAPARA SERVICE CO-OPERATIVE BANK LTD. NO.F 1675, KOZHIKODE-673602, REPRESENTED BY ITS SECRETARY.** **BY ADV. SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER SRI.P.C.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.393 of 2019 2 ## **JUDGMENT** The petitioners, who are members of the 4[th] respondent Society and candidates in the election to its Managing Committee, which was scheduled to be held on 12.01.2019 in terms of Ext.P1 notification dated 30.11.2018 issued by the 1[st] respondent, State Co-operative Election Commission, have moved this writ petition under Article 226 of the Constitution of India seeking a writ of mandamus commanding respondents 3 and 4 to issue identity cards to all eligible members, whose names are included in the final voters list and applied for, till 5.00 p.m. on 10.01.2019, as stipulated in sub-rule (5) of Rule 35A of Kerala Co-operative Societies Rules, 1969. The petitioners have also sought for an order permitting videography on the course of polling, checking the identity of voters with the identity card and Form 6B Register, and to ensure proper conduct of election, which was scheduled on 12.01.2019. 2. On 07.01.2019 when this writ petition came for consideration the learned Senior Government Pleader took notice on admission for respondents 1 to 3, urgent notice on admission by special messenger was ordered to the 4[th] respondent, returnable by WP(C).No.393 of 2019 3 ## 09.01.2019. ## 3. A counter affidavit has been filed by the 4[th] respondent. Paragraph 6 of the said counter affidavit reads as follows: “6. It is submitted that all the members included in the voters list were already issued with identity cards. But certain members made a request to the society for issuance of duplicate identity cards. Such number of application received for issuance of duplicate identity card is 1389. The true copy of the application dated 2/1/2019 received from one of such member for issuance of the duplicate identity card is produced herewith and marked as **Exhibit R4(a)** . It is submitted that such application were received from 1389 members. Since large number of persons made grievances that they had either lost the identity cards or the cards issued has been defaced etc, the society thought it fit to issue a proforma application so as to enable the members to obtain the duplicate identity cards.” 4. On 09.01.2019, when this writ petition came for consideration, the learned counsel for the 4[th] respondent Society submitted that the identity cards will be issued to the respective applicants till 5.00 p.m. on that date. The said submission was recorded. 5. 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. 6. The learned counsel for the 4[th] respondent Society would WP(C).No.393 of 2019 4 submit that identity cards were issued to the respective applicants till 5.00 p.m. on 09.01.2019 and the election was conducted on 12.01.2019 and the new Managing Committee has already taken charge **.** 7. If the petitioners are having any dispute in connection with the election to the Managing Committee of the 4th respondent Society held on 12.01.201 in terms of Ext.P1 election notification, it is for them to raise such dispute 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, 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. ## 8. In **Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha, and another v.** WP(C).No.393 of 2019 5 **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 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. 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 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 WP(C).No.393 of 2019 6 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 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 (97th Amendment) Act, 2011 deals with Co-operative WP(C).No.393 of 2019 7 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 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 Co-operative 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 WP(C).No.393 of 2019 8 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. 13. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that if the petitioners are having any dispute in relation to the the election held on 12.01.2019, in terms of Ext.P1 notification issued by the 1st respondent State Cooperative Election Commission, they will have to raise such dispute before the Co-operative 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 such, they cannot approach this Court seeking interference under Article 226 of the Constitution of India. 14. In such circumstances, this writ petition is dismissed without prejudice to the right of the petitioner to raise disputes, if any, in connection with the election held on 12.01.2019 to the Managing Committee of the 4th respondent Society, before the Co-operative Arbitration Court, by invoking the statutory remedy under Section 69 of the Act, within one month from the date of election. It is made clear that the observations, if any, made in this WP(C).No.393 of 2019 9 judgment, touching the merits of the factual contentions, are made for the limited purpose of disposal of this writ petition and the Cooperative Arbitration Court shall proceed with any dispute raised by the petitioners under Section 69 of the Act, in connection with the election to the Managing Committee of the 4th respondent Society, untrammelled by any such observations. **Sd/-** **ANIL K.NARENDRAN,JUDGE** vv WP(C).No.393 of 2019 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE NOTIFICATION PUBLISHED BY THE FIRST RESPONDENT IN DESABHIMANI DAILY DATED 30.11.2018** **EXHIBIT P2 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS DATED 5.1.2019 BEFORE THE RESPONDENTS** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R4(a) TRUE COPY OF THE APPLICATION SUBMITTED BY ONE AYISHA DATED 02.01.2019 FOR GETTING DUPLICATE COPY OF IDENTITY CARD.** ## **VV** **//TRUE COPY// PA TO JUDGE**