P.K. Ajayan v. M.K. Jayapal and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 1ST DAY OF JUNE 2018 / 11TH JYAISHTA, 1940 **WA.No. 599 of 2018 IN WPC. 24956/2017** (AGAINST THE JUDGMENT IN WP(C) 24956/2017 of HIGH COURT OF KERALA DATED 21.02.2018) **APPELLANT** /ADDL. 8TH RESPONDENT P.K. AJAYAN S/O.KUMARAN, PULIMPARAMBU, PATTANAKKAD P.O., ALAPPUZHA. BY ADVS.SRI.B.PRAMOD SMT.R.REJI (ATTINGAL) RESPONDENTS/PETITIONERS 1 TO 3 & RESPONDENTS 1 TO 7: 1. M.K.JAYAPAL, KESAVEEYAM, PATTANAKKAD P.O., CHERTHALA. 2. R.D.RADHAKRISHNAN,RAMALAYAM, PATTANAKKAD P.O., CHETHALA. 3. P.K.NAZIR,PADINJARE VALIYA VEEDU, PATTANAKKAD P.O., CHERTHALA. 4. THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM. 5. THE CHIEF STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM. 6. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 7. THE ELECTORAL OFFICER, THE PATTANAKKAD SERVICE CO-OPERATIVE BANK, PATTANAKKAD P.O., CHERTHALA. 8. THE RETURNING OFFICER, PATTANAKKAD SERVICE CO-OPERATIVE BANK, PATTANAKKAD P.O., CHERTHALA. 9. PURUSHOTHAMA SHENOY, CONVENOR OF THE ADMINISTRATIVE COMMITTEE, PATTANAKKAD SERVICE CO-OPERATIVE BANK LTD NO. 1144, PATTANAKKAD P.O., CHERTHALA. **WA.No. 599 of 2018** **:: 2 ::** 10. PATTANAKKAD SERVICE CO-OPERATIVE BANK LTD NO. 1144, PATTANAKKAD P.O., REP. BY ITS SECRETARY. ADL.11. KANNAN.T.V., AGED 34 YEARS, S/O.VIJAYAN - THAYYIL PARAMBIL, PATTANAKKAD P.O. CHERTHALA, ALAPPUZHA DISTRICT. (ADDL.R11 IS IMPLEADED VIDE ORDER DATED 1.6.2018 IN I.A.NO.372 OF 2018) R1 TO R3 BY ADV.SRI.D.SOMASUNDARAM R4 TO R8 BY SPL.GOVERNMENT PLEADERR SRI.MOHAMAD HASHIM R9 BY ADV.SRI.N. RAGHURAJ R10BY ADV.SRI.V.G.ARUN ADDL. R11 BY ADV. SRI.T.R.HARIKUMAR ADDL. R11 BY ADV. SRI.PRASAD CHANDRAN P THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01-06-2018, ALONG WITH W.A.NO.801 2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------- W.A.Nos.599 & 801 of 2018 -------------------------------Dated 1[st] June, 2018 ## **JUDGMENT** ## **Ravikumar, J.** These appeals arise from a common judgment dated 21.02.2018 in W.P.(C) Nos.23963, 24336 and 24956 of 2017 and Contempt Case No.1307 of 2017. 2. The appellant in the former writ appeal was the 8[th] respondent and the appellants in the latter appeal were respondents 1 to 5, in W.P.(C)No.24956 of 2017. The writ petition was filed by respondents 1 to 3 in both the appeals. Essentially, it was filed seeking quashment of Ext.P8 order, whereby the State Co-operative Election Commission postponed the election scheduled to be held on 22.07.2017 until further orders. The learned single Judge, after considering the contentions raised in all the aforesaid writ petitions, as also in COC. No.1307 of 2017 filed alleging willful disobedience with the interim order dated 21.07.2017 in W.P.(C) No.24336 of 2017, had rendered the impugned judgment whereby and whereunder W.P.(C) No.24956 of 2017 was allowed. As per the said judgment, W.P.(C) No. 24336 of 2017 was dismissed as infructuous and W.P.(C) No.23963 of 2017 was dismissed. In the contempt petition upon forming primary satisfaction W.A.Nos.599 & 801 of 2018 2 that the respondents had committed contempt of the aforementioned interim order viz., Annexure VII in W.P.(C) No. 24376 of 2017, for dealing with in accordance with the provisions of the Contempt of Courts Act, 1971 and the appended Rules thereunder, it was directed to be placed before a Division Bench to proceed, in accordance with law. It is in the said circumstances that the above mentioned respondents preferred the captioned appeals. 3. We have heard the learned counsel appearing on both sides. For a proper disposal of the appeals, a succinct narration of the facts that led to the impugned judgment is essential. The writ petitioners are members of Pattanakkad Service Co-operative Bank Ltd, Cherthala. Earlier, the Pattanakkad Service Co-operative Bank filed W.P.(C) No.16613 of 2017 before this Court and the said writ petition came to be disposed of as per Ext.P1. It was filed seeking issuance of writ of mandamus commanding the 3[rd] respondent therein viz, the State Co-operative Election Commission, to act upon the resolution dated 05.04.2017 passed by its Managing Committee in Ext.P1, referred to as such therein and the request dated 11.04.2017 along with the proforma (Ext.P2 therein) and to appoint Electoral Officer and Returning Officer for conducting election to the Managing Committee of the Bank and for such other reliefs. As per Ext.P1 judgment, dated 07.06.2017 this Court disposed of the said writ petition with a direction to the Election W.A.Nos.599 & 801 of 2018 3 Commission to act upon Exts.P1 and P2 and to conduct election as early as possible and at any rate, within one month from the date of receipt of a copy of the said judgment. Subsequently, the additional 4[th] respondent in W.P.(C) No. 16693 of 2017 filed Review Petition No.585 of 2017 seeking review of Ext.P1 judgment passed thereon. The same was considered along with W.P.(C) No.19978 and 21600 of 2017. W.P. (C) No.19978 of 2017 was filed by some members of the Society seeking a direction to conduct the election in accordance with the resolution passed by the Bank and also to appoint an administrative committee with any three members of the then Managing Committee, the term of which was then due to expire, on 14.07.2017. W.P.(C) No.21600 of 2017 was filed by another member of the Bank challenging Annexure II Election Notification in that writ petition raising the same grounds raised in the Review Petition. 4. In short, the core contention was that the said notification was issued in violation of the statutory requirement contained in Rule 35 of the Kerala Co-operative Societies Act and Rules, 1969. The said Review Petition and those writ petitions were disposed of as per Ext.P3 order/judgment dated 22.07.2017. Since election was notified by then, this Court held that WP(C) No.19978 of 2017 had become infructuous and consequently, dismissed the same as infructuous. W.A.Nos.599 & 801 of 2018 4 5. W.P.(C)No.21600 of 2017 was disposed of as per Ext.P3 with a direction to appoint any three members of the then existing managing committee as administrators and with a rider that no policy decision should be taken by the said committee during its tenure. Obviously, taking into account the provisions under the Act it was observed that it would only be proper to conduct election as contemplated under Rule 35 of the Kerala Co-operative Societies Rules. But, at the same time, it is to be noted that the review petition in W.P. (C)No.16693 of 2017 was dismissed and W.P.(C)No.19978 of 2017 wad dismissed as infructuous holding that election notification had already been issued. The notification referred therein is produced in W.P. (C)No.21600 of 2017 as Annexure-A2. In such circumstances, it is evident that as per Ext.P3, the managing committee could continue only till election is completed based on Annexure-A2 notification. In short, even after Ext.P3, election was to be conducted as notified under Annexure-A2 election notification, produced as such in W.P. (C)No.21600 of 2017. Later, W.P.(C)Nos.23625 and 23793 of 2017 were filed. W.P.(C)No.23625 of 2017 was filed seeking appropriate direction to ensure a free and fair election by adhering to circular bearing No.28/2013 issued by the State Police Chief. W.P.(C)No.23793 of 2017 was filed seeking appropriate direction that identification of the voters should be made in accordance with the present 6B Register. The W.A.Nos.599 & 801 of 2018 5 said writ petitions were disposed of as per Ext.P4 judgment dated 20.7.2017. The writ petitions were disposed of as hereunder:- “Therefore, there will be a direction to the Returning Officer to ensure that, the voters are identified in accordance with the present 6B Register available in the society and there will be a further direction to the District Police Chief, Alappuzha to ensure that, the election to the society scheduled on 22.7.2017 takes place in a proper, fair and legal manner and sufficient force shall be deployed if necessitated, in order to ensure the directions provided above. If the petitioners in W.P.(C)No.23793/2017 are providing any videographers, in order to videograph the election taking place, sufficient protection shall be provided to the said persons also to ensure that the election to the society is taking place in accordance with law and in a transparent manner.” 6. As a matter of fact, on the same day itself, Ext.P8, the impugned order in the aforementioned writ petition, from which the captioned appeals arose, was issued. As noticed earlier, as per the same, the election which is scheduled to be held on 22.7.2017 was adjourned indefinitely, in other words, until further orders. The learned Single Judge considered W.P.(C)No.24956 of 2017 along with two other writ petitions and a contempt petition filed in W.P. (C)No.24336 of 2017 and disposed of the contempt petition as also the writ petitions in the manner referred hereinbefore. As noticed hereinbefore, as per the impugned judgment dated 21.2.2018, the learned Single Judge allowed W.P.(C)No.24956 of 2017 that carried the challenge against Ext.P8 order postponing the election scheduled to be W.A.Nos.599 & 801 of 2018 6 held on 22.7.2017. Further it was held thus:- “..... Having found that the proceedings for the election was conducted in accordance with the terms of the provisions of the Act and Rules, the election has to take place from where it has stopped, especially since Ext.P8 order postponing the election is found to be illegal. So, the entire process up to the finalization of the voters list is declared legal and the 1[st] respondent is directed to notify the election and finalize the same at the earliest possible time, and at any rate, within a month from the date of receipt of a copy of this judgment, after appointing an administrator to carry on with the day to day affairs of the society...” In short, W.P.(C)No.24956 of 2017 was allowed with such directions. 7. The contention of the learned counsel appearing for the appellant in the former appeal is that the learned Single Judge had failed to take note of the fact that in case election is conducted without curing the defects and deficiencies pointed out by the Election Commission in Ext.P8 order, a fair election would become impossible. It is also the contention of the appellant that a close scrutiny of Ext.P8 order would reveal that there was no laches or dereliction of duty on the part of the Election Commission and in fact, it is nothing but an outcome of a _bona fide_ and earnest desire to conduct election in a fair manner. That apart, it is contended that in terms of the decision of this Court in **Mohanachandran Nair** v. **State Co-operative Election Commission (2013 (3) KLT 506)** the Election Commission is fully empowered to postpone the election if in its opinion a free and fair W.A.Nos.599 & 801 of 2018 7 election would not be possible. It is also the contention of the appellant that the learned Single Judge went wrong in observing that the Election Commission had conducted an inspection in the society on 11.5.2017. According to the appellant, no such inspection was conducted by the Election Commission on that day. That apart, it is the contention of the appellant that the proceedings issued by the Election Commission would reveal that despite specific directions by the authorities the Secretary of the society in question had not taken proper steps to make available relevant records for inspection. In the appeal filed by respondents 1 to 5 in W.P.(C)No.24956 of 2017 viz., the latter appeal, the contention is that in terms of the provisions under Section 28 of the Act the Election Commission is empowered to monitor the election and it is also within its power to postpone the election, taking note of the situation prevalent in the society concerned. It is contended that the society has not been maintaining Form 6B register as contemplated under the Act and the identity details of the members were also not maintained in the society. However, those aspects were not considered by the learned Single Judge while passing the impugned judgment, it is contended. Ground (e) assumes relevance in this context. It reads thus:- “The learned single judge ought to have found that the appellant herein as per letter dated 17.05.2017 instructed the Assistant Registrar to conduct a detailed inspection, and report, whether the machinery is ready for a free and fair election, as evident from Exhibit W.A.Nos.599 & 801 of 2018 8 R1(g). However, the Assistant Registrar without taking note of the instructions of the State Co-operative Election Commission has recommended to conduct the election on 22.07.2017, for the sole reason that there is a direction from this Hon'ble Court in W.P.(C) No.23625/2017 to conduct election to the said society as early as possible.” The contention raised in ground (f) is to the effect that the Election Commission was constrained to notify the election on 22.7.2017 even without taking note of Form 6B register which is the main record of the society. According to the appellants, the finding that Ext.P8 order was passed in violation of the interim order passed by this Court on 21.7.2017 in W.P.(C)No.24336 of 2017 is not correct and in fact, it is evident from Ext.P2 that the postponement of the election was notified in the noticeboard of the society on 21.7.2017 itself. The learned Government Pleader submitted that instead of Ext.P8 in the said ground it is wrongly referred to as Ext.P2. But, we have gone through Ext.P8. There is nothing in Ext.P8 which would indicate that the postponement of the election scheduled to be held on 22.7.2017 had been notified in the noticeboard of the society on 21.7.2017. It is also the contention of the appellants that the voters' list was infected with errors and omissions and that those aspects were not at all taken into consideration by the learned Single Judge. Per contra, the learned counsel appearing for respondents 1 to 3 in the appeal as also the learned counsel appearing for the Co-operative Bank submitted that the W.A.Nos.599 & 801 of 2018 9 appellants had failed to make out a case for any interference with the judgment passed by the learned Single Judge. Their further contentions can be summarised as follows:- The chronology of events which constrained the writ petitioners and also other members of the society and the society itself would reveal that throughout there was a concerted move to postpone the election to the society. Even when a resolution was passed and consequential request for conducting election was made they were not duly forwarded to the Election Commission and in fact, it was the said inaction that constrained the Bank to move W.P.(C)No.16693 of 2017. Even thereafter, at all stages, there was a concerted attempt to stall election and it is in the said circumstances that the aforementioned writ petitions were moved. A perusal of Exts.P1, P3 and P4 judgments would reveal that this Court had issued direction for conducting election to the society in tune with the provisions under the Act and Rules and thereafter, reiterated the same. Seeing that in terms of the provisions of the Act and Rules the Election Commission had notified election to the society on 22.7.2017 this Court issued direction for conducting election on that day itself and evidently, it is in that regard that Exts.P3 and P4 judgments were rendered by this Court. However, no proper steps were taken by the society to conduct election in terms of the provisions under the Act and the Rules and at the same time, no proper W.A.Nos.599 & 801 of 2018 10 steps were taken to get the earlier judgments of this Court mandating to conduct election on 22.7.2017, reviewed. The appellants were not justified in contending that no proper election could have been conducted on 22.7.2017. At any rate, when there is a specific direction of this Court to conduct election and as per Ext.P4 appropriate directions were issued for the smooth conduct of the election on that day by this Court the respondents were bound to conduct election on that day. Making such submissions it is contended that in such circumstances the learned Judge was right in holding that there is a willful disobedience with the direction to conduct election on 22.7.2017 by issuing Ext.P8 and therefore, the impugned judgment calls for no interference. 8. We have given our anxious consideration to the rival contentions. We have also referred to the chronology of events very carefully. It is evident that essentially, there was delay in forwarding the resolution passed by the then Managing Committee of the society for conducting election to the society and also the request made in that behalf. Evidently, that constrained the Pattanakkad Service Cooperative Bank to approach this Court by filing W.P.(C)No.16693 of 2017. Obviously, as per Ext.P1 judgment, this Court issued a positive direction to conduct election within one month from the date of receipt of copy of the judgment. Even thereafter election was not conducted W.A.Nos.599 & 801 of 2018 11 within the time stipulated thereunder and that the subsequent developments had constrained some members of the Bank to approach this Court by filing writ petitions which culminated in Ext.P3 judgment. Taking note of the fact that election was notified in the meanwhile and that the term of the then managing committee was to expire this Court as per Ext.P3 issued a direction for appointment of any three members of the then existing managing committee to manage the day today affairs of the society till the new committee is elected and takes over charge. Since nothing fruitful in that regard had taken place some other members of the Bank were constrained to approach this Court by filing W.P.(C)Nos.23625 & 23793 of 2017. As noticed hereinbefore, the former amongst the said writ petitions was filed with a prayer to ensure a free and fair election by implementing Ext.P6 circular (referred as such in the writ petition) bearing No.28/2013 dated 20.11.2013 issued by the State Police Chief and the latter among the writ petitions was filed seeking identification of voters in accordance with Form 6B register then available, at the time of election. It is pertinent to note that as per Ext.P4 judgment whereby those writ petitions were disposed of, a direction was issued by this Court to the Returning Officer to ensure that the voters are identified in accordance with Form 6B register available in the society and with further direction to the District Police Chief to ensure that election to the society is conducted, as scheduled W.A.Nos.599 & 801 of 2018 12 on 22.7.2017, in a proper, fair and legal manner. Thus, it is obvious that the society and some of its members had earlier approached this Court seeking conduct of election to the managing committee of the society of the Bank in tune with the provisions under the Act as early as possible. It is to be noted that W.P.(C)No.19978 of 2017 moved by some members of the Bank was dismissed as infructuous taking note of the fact that the election notification was by then, issued. That notification was in fact, produced in W.P.(C)No.21600 of 2017 as Annexure-A2. Going by the same, election was to be conducted on 22.7.2017. Ext.P4 judgment would reveal that in order to conduct it smoothly and fairly appropriate directions were issued by this Court. Thus, it is evident that after hearing all sides and after considering the rival contentions raised in the aforesaid writ petitions this Court had taken a decision that election should be conducted to the society as scheduled. Indubitably, it was scheduled to be held on 22.7.2017. The election, scheduled as per Annexure-A2 (referred as such in W.P. (C)No.21600 of 2017) had not taken place as it was postponed under Ext.P8. True that, on behalf of the official respondents including the Election Commission, a contention has been taken up that prior to the passing of Ext.P4 judgment Ext.P8 was issued and in fact, the factum of postponement of election scheduled to be held on 22.7.2017 was notified in the notice board of society on 21.7.2017. Evidently, such W.A.Nos.599 & 801 of 2018 13 contentions were raised in the appeal filed by the official respondents including the Election Commission to canvass the position that those respondents had not committed any willful disobedience with the directions of this Court in Ext.P4 judgment. We do not think that it is necessary to probe into that aspect any further based on the submissions made across the Bar. It is submitted by the learned counsel on all sides that the subsequently instituted contempt court proceedings were dropped virtually, taking note of the fact that election was subsequently notified and it was also conducted. It is also an admitted position that pursuant to the election thus conducted the newly elected committee had assumed charge. In such circumstances, we are not pleased with the action on the part of the Election Commission who is a party to certain proceedings before this Court (as can be seen from Exts.P4 and P5) in issuing an order which in effect nullify the impact and effect of the judgment of this Court mandating to conduct election on 22.7.2017. It is also to be noted that even at the first instance when W.P.(C)No.16693 of 2017 was moved, this Court passed an order to conduct election within one month from the date of receipt of a copy of Ext.P1 judgment. Later, taking into account the subsequent developments and also taking note of the fact that election was then scheduled to be conducted on 22.7.2017 appropriate directions were issued for smooth and fair conduct of the election on W.A.Nos.599 & 801 of 2018 14 that day. In such circumstances, in our view, being a party to the proceedings before this Court, the Election Commission ought not have postponed the election as per Ext.P8 that too, indefinitely. According to the Election Commission, irregularities or illegalities in the matter of maintenance of records would make a fair election impossible. If the Election Commission was entertaining such a view it could have brought it to the notice of this Court at the appropriate time and sought for review of the order regarding conduct of election. In that context, it is to be noted that going by the materials on record, the Election Commission had conducted an inspection in the society as far back on 11.5.2017. That apart, it is evident that Ext.R1(g) communication is dated 17.5.2017. If, according to the Election Commission, such irregularities were there and they were noticed on 17.5.2017 and taking into account the fact that the election was scheduled to be conducted on 22.7.2017, it cannot be said that there was no ample time for the official respondents to move this Court appropriately. Having failed to do so, the respondents cannot be heard to contend that due to certain circumstances election could not have been conducted on 22.7.2017 and it is taking into account such circumstances that, despite the orders of this Court to conduct election on 22.7.2017, an order was passed to postpone the same indefinitely. We cannot view such an action nothing but a strike at the rule of law. But, at the same time, even after W.A.Nos.599 & 801 of 2018 15 initiating contempt of court proceedings taking into account the fact that election notification was issued subsequently and election was also conducted in tune with such notification, this court dropped further proceedings in the contempt case. As noticed hereinbefore, election was conducted, as notified and the newly elected committee had also assumed charge. In that context, it is relevant to refer to certain decisions of the Hon'ble Apex Court in **Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha, And Another** v. **State of Maharashtra and Others (AIR 2001 SC 3982)** which was followed in **Shaji K. Joseph** v. **Viswanath and others (2016 (2) KHC 33 (SC))** which were referred to in Ext.P3 judgment to hold that once election proceedings are initiated, under normal circumstances, no interference would be possible. In such circumstances, if any of the members of the society concerned got any grievance with respect to the conduct of the election, on permissible grounds the election is to be challenged in an appropriately instituted election petition as contemplated under the KCS Act, 1969. Despite the persuasive arguments of the learned counsel appearing for the appellant in W.A.No.599 of 2018 raising contentions to challenge the impugned judgment passed by the learned Single Judge based on the actions and proceedings taken by the Election Commission, we are of the view that such contentions cannot be upheld especially because, we W.A.Nos.599 & 801 of 2018 16 found no merit in such contentions raised by those respondents in W.A.No.801 of 2018. In the said circumstances, these appeals must fail, in view of the circumstances and reasons mentioned hereinbefore. But, at the same time, we may hasten to add that dismissal of these appeals will not stand in the way of any of the members of the society to file Election Petition, in accordance with law, in case he/she is desirous to file an Election Petition. Subject to the said observation, the captioned appeals are dismissed. **Sd/C.T.RAVIKUMAR Judge Sd/MARY JOSEPH Judge** TKS // true copy // Sd/P.S. To Judge