Pindimana Service Co-operative Bank Ltd v. P.V. Rajan & Others (WA 2374 of 2017 in WPC 31112/2017)

**'CR'** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 12TH DAY OF MARCH 2018 / 21ST PHALGUNA, 1939** **WA.No. 2374 of 2017 IN WPC. 31112/2017** **AGAINST THE ORDER/JUDGMENT IN WP(C) 31112/2017 of HIGH COURT OF KERALA** **APPELLANT(S)/5TH RESPONDENT** **PINDIMANA SERVICE CO-OPERATIVE BANK LTD NO.E 25, PINDIMANA, KOTHAMANGALAM, PIN - 686 681, REPRESENTED BY ITS SECRETARY, ERNAKULAM DISTRICT.** **BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINI SANKAR SMT.ASHA BABU** ## **RESPONDENT(S)/PETITIONERS & RESPONDENTS 1 TO 4, 6 & 7:** **1. P.V.RAJAN** **SON OF P.R VASU, VICE PRESIDENT, PINDIMANA SERVICE CO-OPERATIVE BANK LIMITED NO.E 25, RESIDING AT PULPRAKUDIYIL HOUSE, PINDIMANA P.O, KOTHAMANGALAM, PIN - 686 681.** **2. JAMES PAUL,** **SON OF P.K PAULOSE, BOARAD MEMBER, PINDIMANA SERVICE CO-OPERATIVE BANK LIMITED NO.E 25, RESIDING AT PUTHAYATHU HOUSE, PINDIMANA P.O, KOTHAMANGALAM, PIN - 686 681.** **3. THE KERALA STATE ELECTION COMMISSIONER, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THYCAUD P.O, THIRUVANANTHAPURAM - 695 014.** **4. THE RETURNING OFFICER,** - **KOTTAPADY UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(G), KOTHAMANGALAM, PIN - 686 691, ERNAKULAM DISTRICT.** **5. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOTHAMANGALAM (GENERAL), ELECTORAL OFFICER, PINDIMANA SERVICE CO-OPERATIVE BANK LIMITED, ERNAKULAM - 686 681.** **-2-** ## **W.A.2374/2017** **6. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), JOINT REGISTRAR'S OFFICE, KAKKANADU CIVL STATION, ERNAKULAM - 682 030.** **7. ARUN V KUNNATH,** - **S/O,. VARGHESE K.M, AGED 41 YEARS, KUNNATH HOUSE, CHELAD P.O,** **KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686 681.** ## **8. BENNY VARGHESE,** **SON OF VARGHESE, KODUMALIL, PINDIMANA, ERNAKULAM DISTRICT PIN - 686 681.** **R1,R2 BY ADV. SRI.THAMPAN THOMAS** **R3 TO R6 BY SPL. GOVERNMENT PLEADER SRI.MOHAMED HASHIM. R7 & R8 BY SRI.M.SASINDRAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AL/-** **'CR'** # **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** **-----------------------------------------W.A.No.2374 of 2017 ------------------------------------------Dated this the 12[th ] day of March, 2018** ## **JUDGMENT** ## **C.T.Ravikumar, J.** This appeal is directed against the judgment dated 19.10.2017 passed by a learned Single Judge in W.P.(C) No. 31112 of 2017. It was filed in connection with the disrupted election to the Pindimana Service Co-operative Bank Ltd., No.E-25 on 24.9.2017. The election to its Managing committee was scheduled to be conducted on 24.9.2017 as per Ext.P1. As scheduled under Ext.P1 the polling had started at 10.30 a.m on W.A. No.2374/2017 - : 2 :- that day, but during its course, due to some untoward incidents the election got disrupted. Consequentially, the Returning Officer appointed to conduct the election published a notice under Rule 35 A (6) (n) (x) of the Kerala Co-operative Societies Rules 1969 (for short 'the Rules') postponing the election and the said fact was duly notified to the Kerala State Co-operative Election Commission,(for short 'Election Commission') the first respondent herein. 2. The writ petition from which this appeal arises was filed seeking issuance of writ of mandamus commanding respondents 1, 2 and 3 to carry on the postponed polling, on 8.10.2017 as requested in Ext.P5 or any other date to be fixed by this Court or to direct to count the votes already polled and declare the results. The further prayer therein is to restrain the 4[th] respondent from passing any order appointing an W.A. No.2374/2017 - : 3 :- Administrative Committee till the elections are held and results are declared and the new Board is given charge by the present Board of Directors. 3. After considering the rival contentions and the relevant provisions, the learned Single Judge thought it fit to issue direction to finalise the election proceedings within a time frame and held that election has to be held afresh only from that stage where it was stopped. Based on such conclusion, consequential directions were also issued. The first respondent, State Co-operative Election Commission was directed to complete the election process within one month from the date of receipt of a copy of the judgment making it absolutely clear that the election should be conducted from the stage where it was stopped. ## Further, it was held thus:- - _“ It is not in dispute that, substantial number of members of the Society have casted their votes. Therefore, rest of the members shall be permitted_ W.A. No.2374/2017 **==> picture [41 x 9] intentionally omitted <==** _to cast their votes in the date notified. Since the election was disrupted once, I am of the considered view that there shall be sufficient direction to the Returning Officer to ensure that, free and fair poll takes place by on the date notified by the State Co-operative Election Commission_ .” 4. It is feeling aggrieved by such directions contained in the aforesaid judgment, that the captioned writ appeal has been preferred. 5. We have heard the learned Senior Counsel appearing for the appellant, the learned Special Government Pleader appearing for Respondents 3 to 6 and the learned counsel appearing for respondents 1,2, 7 &8. 6. In the memorandum of appeal, the appellant took up a contention founded on a Division Bench decision of this Court in _**George Kuruvilla v. Kerala State Co-operative Election Commission [(2010 (1) KLT 967].**_ It is relied on to canvass the position that once the Election Commission notifies postponement of W.A. No.2374/2017 - : 5 :- the date of polling, the Election Commission could not be directed to hold an election to the Co-operative Society or Bank concerned without a second notification by it, regarding the date of election. Further, it is contended that to enable the Election Commission to issue such a notification the Committee in office or those who represent it have to pass a resolution for the conduct of election. According to the learned Senior Counsel, appearing for the appellant such procedures are to be done in tune with the statutory mandate contained in Rule 35 A of the Rules. It is submitted that the Co-operative Societies Act does not contemplate an election without convening a general body meeting for the purpose of fixing a date for conducting the election. It is submitted that the learned Single Judge had failed to take into account any of the aforesaid aspects, and disposed of the writ W.A. No.2374/2017 - : 6 :- petition with direction to the first respondentElection Commission to complete the election process against the scheme of the Act and the Rules. The further contention is that in the case on hand, election could not be conducted from the stage where it was stopped and in fact, a fresh resolution is to be passed by the Committee or those who represent it and only thereafter, an election could be conducted, in accordance with law. To buttress his contention, the learned Senior Counsel has relied on a decision of this Court in **Pradeep v. Kerala State Election Commission [(2015)1 KLT 911]** . The learned counsel has also placed reliance on the decision of this Court in **Umeshan v. Ezhupunna South** . **Co-operative Bank (2009 (2) 843]** 7. Per contra, learned counsel appearing for the respondents 1 and 2 submitted that in view of the settled position that when an election W.A. No.2374/2017 - : 7 :- to a Co-operative Society or Co-operative Bank is disrupted on the date of polling, the election could be conducted rather, the process of election could be continued and completed by issuing a notification regarding the date of polling and it is absolutely unnecessary to repeat the entire process of election. 8. The learned Special Government Pleader endorsed the contentions of respondents 1 and 2 and submitted that once the election was disrupted on the date of polling what is required to be done is only publication of the date of polling by the Election Commission and to conduct of election based on the voters list already published. In the light of the rival submissions, the question to be considered whether the course of action directed to be adopted by the learned single judge could be sustained and if not, what should be the W.A. No.2374/2017 - : 8 :- procedure to be followed to continue and complete the election to the Bank which was disrupted earlier and postponed in the midst of polling ? 9. As noticed herein-before, relying on the decision in **Pradeep's** case (supra) the learned senior counsel contended that an election resolution by the Managing Committee, followed by a second notification by the Election Commission, is required to complete the election process in the circumstances. In other words, a fresh notification of election has to be published first to complete the election process. 10. In **Pradeep's** case, election was postponed due to non-availability of vital records. In paragraph 4 of **Pradeep's** case it was observed thus:- ' _'This is not a case of stoppage of election by the Returning Officer due to interruption but a conscious postponement by the Commission due to non-availability_ W.A. No.2374/2017 - : 9 :- _of vital records. I am not therefore, dissuaded from directing the Commission to issue a notification afresh and commence the process for conducting the election to the Managing Committee of the Bank.''_ (Emphasis added) 11. Thus, a perusal of the decision in **Pradeep's** case (supra) itself would reveal that in the facts and circumstances of the case on hand, the said decision is inapplicable as it is not a case where election was postponed due to the non-availability of records. 12. The question to be considered in this case is when once resolution for election was passed by a Committee of the Co-operative Society or Co-operative Bank, concerned and after following the mandatory procedures date of polling was fixed by the Election Commission, but polling was interrupted and consequently it was postponed whether the entire process of election should be repeated or the election could be continued and completed from the stage where it W.A. No.2374/2017 - : 10 :- was stopped due to disruption ? A further question also crops up for consideration if election is to be continued from the stage where it was stopped after publishing the next date of polling in accordance with law as to whether those persons who are already included in the final voters list based on which election was in progress and to caste their votes should be permitted to cast their votes again ? 13. The question when election was disrupted, while the polling was in progress and in consequence thereof the poll was postponed whether it is obligatory to pursue the entire process of election all over again with a fresh resolution under Rule 35 (1) of the Rules, was considered by this Court in _**Valsaraj vs. Joint Registrar (1984 KLT 628**_ ). After an in-depth consideration of various aspects and the provisions, the learned Single Judge held therein W.A. No.2374/2017 - : 11 :- that election process once interrupted has to be continued from the stage at which it was left off and that alone would be an effective disincentive to manipulation of the electoral process. If it were otherwise, any manipulation by extraneous agencies can effectively subvert the internal democracy of co-operative institutions by interference in the due course of election of those institutions of utmost importance in our constitutional system, it was further held. We are in full agreement with the decision in **Valsaraj's** case regarding the course to be adopted for completing the process of election in such an eventuality. True that, in **Paradeep's** case (supra) a learned Single Judge had ordered for election after issuance of a fresh notification, following an earlier Division Bench decision of this Court in _**Rajendran v. State Co-operative Election Commission (2004 (1) KLT 1026**_ ). W.A. No.2374/2017 - : 12 :- In **Rajendran's** case (supra), election proceedings were stopped after publication of the preliminary voters list and before the publication of the final voters list due to amendment of Section 20 of the Co-operative Societies Act giving voting rights to all members and not active members. Thus, it is obvious that electorate was not finally, constituted in accordance with law. Taking into account such circumstances it was held therein that election could not be conducted from the stage where it was stopped. We have no hesitation to hold that the situation obtained in the instant case is totally different and therefore, the decision in **Rajendran's** case is not applicable to the facts obtained in this case on hand. 14. The procedure to be followed immediately when election is disrupted on the polling date, is specifically contemplated under W.A. No.2374/2017 - : 13 :- ## Rule 35 (A) (6)(n) (x). The said provision reads ## thus:- _“If at any stage of polling, the proceedings are interrupted or obstructed by any riot or affray, or if at such election, it is not possible to take the poll for any sufficient cause, the Returning Officer shall have power to stop the polling, recording his reasons for such an action in the minutes book of the society and the fact may be reported to the Electoral Officer._ _Provided that where the Returning Officer is not able to record the reasons in the minutes book, he shall report the fact together with reasons thereto, to the Electoral Officer concerned and Co-operative Election Commission forthwith.”_ 15. In this case, the undisputed and indisputable fact is that election was disrupted by a mob of about 450 persons, on 24.9.2017 while the polling was in progress. Due to such interruption it could not be completed. The said matter was duly taken note of by the Returning Officer and he postponed the election and reported the said fact to the Electoral Officer who in turn intimated that fact to the Cooperative Election Commission, the first W.A. No.2374/2017 - : 14 :- respondent. It was taking into account all such circumstances that the learned Single Judge directed that election should be continued and completed only from the stage where it was stopped. It is thus evident that in the case on hand after constitution of the electorate polling was in progress as scheduled when it was interrupted. If, in such circumstances, the entire process of election is compelled to be repeated all over again it would tantamount to granting of incentive to manipulation of the electoral process designed purposefully. Hence, in such circumstances, when at the stage of polling the election proceedings are interrupted or obstructed by any riot or affray it had to be continued from the stage of polling as it was stopped at that stage. We are of the view that though at the time of disruption, polling was in progress as regards an election the word 'stage' W.A. No.2374/2017 - : 15 :- should be understood as stage of polling and not as any particular phase of polling even if by that time some of the voters had cast their votes. True that the process of election is separated into different parts or divided into different phases. In this context, the meaning of the word 'stage' when pertains to a process given in Oxford New Advanced Learner's Dictionary assumes relevance. It means a separate part that a process is divided into. 16. Then the next question is, even when election is to be held in such eventualities, and it is only to be continued and completed from the stage where it was stopped, in this case from the stage of polling, whether 'right to caste vote' in the next declared date of polling should be or confined to those voters who constituted the electorate as regards that election, but could not cast their votes on that day owing to such W.A. No.2374/2017 - : 16 :- disruption ? In other words, the question is whether all the members who constitute the electorate going by the said final voters' list based on which election was being held, could be permitted to cast their votes and results is to be declared based on such polling. Evidently, the learned Single Judge restricted the zone by directing that the rest of the voters who could not cast their votes on 24.9.2017 alone shall be permitted to cast their votes in the next notified date of election. We are afraid, in the absence of concrete evidence regarding the manner in which the votes cast on the disrupted date of polling, were kept adopting such a course is not feasible and therefore, permissible. When no material is available suggesting that such votes were kept intact without even a remote chance for manipulation, it would be unsafe to restrict the right to franchise in such manner. We may W.A. No.2374/2017 - : 17 :- hasten to add, if in a given case polling was being conducted in different booths and it was disrupted only in a particular booth and as regards the other booths, the votes cast were safely kept and in that regard there is clear evidence then it is unnecessary to conduct polling in all the booths. That is certainly, not the case here. At any rate, there is no such case for any of the parties. It is to be noted that there is nothing in the counter affidavit filed by the third respondent indicating that such votes alrleady cast prior to the disruption, were kept safe and intact. In such circumstances, we vacate the said direction and direct that on the next notified date of election, all the voters included in the final voters' list based on which polling was in progress on 24.9.2017, shall be permitted to cast their votes. 17. We are of the considered view except W.A. No.2374/2017 - : 18 :- on the aforesaid aspect the conclusions, the consequential findings and directions issued by the learned Single Judge are consistent with the settled position of law. 18. The next question to be considered is whether in such circumstances, this Court should fix the date for conducting the election, rather the date of polling is it be left to the Cooperative Election Commission to fix a date. The said question is no longer _res integra_ in view of the Division Bench decision in **George Kuruvila's** case (supra). In the said decision, it was held by a Division Bench that once the Election Commission notified postponement of date of poll, then without publishing the next date of poll, court cannot direct holding of elections on next day without ensuring that date of poll is published in advance. It is further held that in such circumstances, the court shall not W.A. No.2374/2017 - : 19 :- direct holding of election on the next day, as if such a direction is issued, it would not ensure a fair and proper election. Persons who are already included in the final voters list should be let known regarding the next date of polling and it should be done by the authority competent to issue such a notification. It was held therein that such authority as regards election to Cooperative Societies /Co-operative Banks is none other than the Co-operative Election commission and therefore it should be left to be done by that authority. Shortly stated, going by the decision it should be left to the Election Commission to decide the date of next polling and it should be published in accordance with law and well in advance to let known to all persons who are having a right to cast their vote in the election. Virtually, in the case on hand the learned Single Judge had not directed for conducting election on W.A. No.2374/2017 - : 20 :- any particular date. The direction to the Election Commission is only to complete the election process within one month from the date of receipt of a copy of the judgment. It cannot be taken as a direction in conflict with the decision in **George Kuruvilla's** case (supra). The next date of polling shall be decided and published in accordance with law, by the first respondent and thereafter election shall be completed from the stage of polling, as directed herein-before. The entire process in that regard including polling shall be completed within a period of one month from the date of receipt of a copy of this judgment. In that regard, it will be advisable for the Co-operative Election Commission to fix and notify the date of election, in accordance with law, within ten days from the date of receipt of a copy of this judgment so that polling and declaration of election could be over within the W.A. No.2374/2017 - : 21 :- above mentioned period of one month. Subject to the above, the writ appeal is disposed of. Sd/- **C.T.RAVIKUMAR,** **JUDGE** Sd/- **MARY JOSEPH, JUDGE** al/- True copy P.S to Judge ++ W.A. No.2374/2017 - : 22 :-