Prasad Varghese and others v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941** ## **WP(C).No.20447 of 2019** ## **PETITIONERS:** - **1 PRASAD VARGHESE, S/O. VARGHESE, (MEMBERSHIP NO.1643 OF VALAKAM SERVICE CO-OPERATIVE BANK), MANAYAKUDIYIL HOUSE, KUNNAKKAL KARAYIL, VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** - **2 SARDARJI K.K. (MEMBERSHIP NO.1643 OF VALAKAM SERVICE CO-OPERATIVE BANK),(MEMBERSHIP NO.3975 OF VALAKAM SERVICE CO-OPERATIVE BANK), KAINATTIL HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** - **3 SHEELA MATHAI, (MEMBERSHIP NO.3321 OF VALAKAM SERVICE CO-OPERATIVE BANK), PUTHUMANAKUNNEL HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE,, MOOVATTUPUZHA TALUK, ERNAKUILAM DISTRICT.** - **4 V.K.RAMAKRISHNAN, (MEMBERSHIP NO.915 OF VALAKAM SERVICE CO-OPERATIVE BANK), PANACHICKAL HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT.** **BY ADVS.SRI.T.P.PRADEEP SMT.MINIKUMARY M.V. SMT.NITHYA VIJAYAN SRI.P.K.SATHEES KUMAR SRI.S.SREEDEV** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO DEPARTMENT OF CO-OPERATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.** - **2 THE REGISTRAR OF CO-OPERATIVE SOCIETY, OFFICE OF THE REGISTRAR, THIRUVANANTHAPURAM-695 001.** WPC 20447/19 2 - **3 JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETY ERNAKULAM, ERNAKULAM DISTRICT-682 030.** - **4 ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, MOOVATTUPUZHA, ERNAKULAM DISTRICT-686 661.** - **5 THE ELECTORAL OFFICER, VALAKAM SERVICE CO-OPERATIVE BANK LIMITED NO.E-108, VALAKAM P.O., ERNAKULAM DISTRICT, PIN-682 316.** - **6 VALAKAM SERVICE CO-OPERATIVE BANK LIMITED NO.E-108 REP. BY ITS SECRETARY, VALAKAM P.O., ERNAKULAM DISTRICT, PIN-682 316.** - **7 THE MANAGING COMMITTEE REPRESENTED BY ITS PRESIDENT, VALAKAM SERVICE CO-OPERATIVE BANK LIMITED NO.E-108, VALAKAM P.O., ERNAKULAM DISTRICT, PIN-682316.** - **8 KERALA STATE COOPERATIVE ELECTION COMMISSION REPRESENTED BY THE ELECTION COMMISSIONER, CO BANK TOWER, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 022.** - **9 DR.P.P. THOMAS, PALANNATTIL HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT-682 316.** - **10 JIJO P.P., PAPPALIL HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT-682 316.** - **11 JINU C.K., CHELAMOOTTIL HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT-682 316.** - **12 JOY C.A., THENGANAKUDIYIL HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT-682 316.** - **13 GEORGE E.A., EDAPATT HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT-682 316.** WPC 20447/19 3 - **14 RAVEENDRAN M.K., MATAKKOTT HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT-682 316.** - **15 N.I.ABRAHAM, NIRAVATH HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT-682 316.** - **16 BIJI MATHEW, KAVIKUNNEL HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT-682 316.** - **17 MINI PAULOSE, POTTACKAL HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT-682 316.** - **18 LEELA RAJAN, PANTHANAL HOUSE, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT-682 316.** - **19 PAUL C., VELLAPPILLY PARAYIL, KUNNACKAL P.O., VALAKAM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT-682 316.** - **BY SMT.C.S.SHEEJA, SR.GP BY SRI.T.R.HARIKUMAR BY SRI.R.LAKSHMI NARAYAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 20447/19 4 ## **JUDGMENT** The petitioners have filed this writ petition with the following prayers: “1. issue a writ of certiorari or other appropriate writ, direction or order calling for records relating to Ext.P1 and quash the same. 2. issue a writ of mandamus or other appropriate writ, order or direction commanding 8[th] respondent to conduct the election to the Managing Committee of the 6[th] respondent Bank after giving opportunity to 3[rd] petitioner and other members to remit the due for share qualification. 3. issue a writ of mandamus or other appropriate writ, order or direction commanding 8[th] respondent to conduct the election to the Managing Committee of the 6[th] respondent Bank after removing the ineligible members from the voters list. 4. issue a writ of mandamus or other appropriate writ, order or direction commanding 8[th] respondent to appoint new Electoral Officer to conduct the election to the Managing Committee of the 6[th] respondent Bank. 5. issue a writ of mandamus or other appropriate writ, order or direction commanding 8[th] respondent to dispose of Ext.P8 complaint forthwith. 6. issue a writ of mandamus or other appropriate writ, order or direction commanding 5[th] respondent to accept the nomination of the 1[st] petitioner and allow him to contest in the upcoming Election. 7. issue a writ of mandamus or other appropriate writ, order or direction commanding 5[th] respondent to reject the nomination of the 19[th] respondent. and 8. issue such other appropriate writ, order or direction as this Hon'ble Court deems fit and proper in the circumstances of the case.” WPC 20447/19 5 2. As is obvious from the above, this writ petition is vitiated by the vice of multifariousness, since several reliefs have been rolled into one writ petition. 3. When I brought this to the notice of the learned counsel for the petitioners, he submitted that he will give up all the reliefs except prayer No.6 and that the nomination of the first petitioner be directed to be accepted by the fifth respondent. 4. I see from the pleadings on record that the nomination of the first petitioner has been rejected through Exhibit P6 proceedings, wherein it is clearly stated that he is indebted to the sixth respondent to an amount of Rs.30,770/- and therefore, is disqualified from contesting the election under Rule 44(1)(c) of the Kerala Co-operative Societies Rules. The learned counsel for the petitioners submits that this finding in Exhibit P6 is contrary to facts and that in any event, the first petitioner was not given any notice of debt before doing so, particularly because be is only a surety and not a borrower and therefore, going by the judgment of this court in **Abdul Rasheed v. State of Kerala** (1988 (1) KLT 190), he cannot be found disqualified without any such notice having been issued. WPC 20447/19 6 5. In response, the learned Standing Counsel for the Election Commission submits that the ratio in **Abdul Rasheed** (supra) would not apply to this case because the first petitioner is a defendant in an Arbitration Case filed by the Bank and therefore, fully cognizant of the proceedings against him and also of the default. He says that in normal circumstances, a surety is given the benefit of doubt because he may not be aware that a principal borrower has committed default, but that in the instant one, this is not the case because he is a defendant in an ARC. 6. On hearing the learned Standing counsel as afore, the learned counsel for the petitioners submitted that the first petitioner has not received any notice in the Arbitration Case and therefore, the conclusions in Exhibit P6 do not apply. 7. From the afore submissions, it is ineluctable that there are severe factual disputes as to whether an ARC has been pending against the first petitioner and that he has been issued notice by the competent Arbitrator. 8. Needless to say, this Court, while acting under Article 226 of the Constitution of India, will not be in a position to adjudicate all these matters and resultantly, it will be up to the first petitioner to WPC 20447/19 7 invoke his alternative remedies once the elections are over. This is more so because, I am bound by the judgment of the Hon'ble Supreme Court in **Shri.Sant Sadguru v. State of Maharashtra and Others** (AIR 2001 SC 3982), whereby this court is inhibited from issuing any orders once the election processes are set in motion under law. In the afore circumstances, I dismiss this writ petition without issuing any orders, however, leaving liberty to the petitioners to invoke all other alternative statutory remedies available in law and for this purpose, I leave all their contentions open without concluding upon the same. Sd/Devan Ramachandran, Judge tkv WPC 20447/19 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ELECTION NOTIFICATION DATED 3.6.2018 ISSUED BY THE 8TH RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE MASS COMPLAINT DATED NIL TO THE STATE CO-OPERATIVE ELECTION COMMISSION.** **EXHIBIT P3 TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE STATE CO-OPERATIVE ELECTION COMMISSION. EXHIBIT P4 TRUE COPY OF THE LIST OF MEMBERS HAVING DUAL MEMBERSHIP.** **EXHIBIT P5 TRUE COPY OF THE COMPLAINT PREFERRED TO JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES DATED 9.7.2019. EXHIBIT P6 TRUE COPY OF THE COMMUNICATION ISSUED BY THE ELECTORAL OFFICER. EXHIBIT P7 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER. EXHIBIT P8 TRUE COPY OF THE COMPLAINT DATED 19.7.2019 SUBMITTED BEFORE THE STATE CO-OPERATIVE ELECTION COMMISSION.** /true copy/ P.S. TO JUDGE