Remanan M. v. Registrar of Co-operative Societies, Thiruvananthapuram and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 19TH DAY OF SEPTEMBER 2018 / 28TH BHADRA, 1940 WP(C).No. 29818 of 2018** ## **PETITIONER:** **REMANAN M AGED 43 YEARS S/O.MADHAVAN, KANNATTU THODIYIL, COLLEGE NAGAR, 163, VADAKKEVILA VILLAGE, KOLLAM TALUK** **BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENTS:** - **1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM, 695001** - **2 THE ELECTION COMMISSIONER, THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM-695001** - **3 THE ASSISTANT REGISTRAR, (GENERAL)(ELECTORAL OFFICER)CO-OPERATIVE SOCIETIES,OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES,KOLLAM-691013.** - **4 THE RETURNING OFFICER, KOLLAM UNIT INSPECTOR,OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,KOLLAM-691013** - **5 THE SECRETARY KOLLURVILA SERVICE CO-OPERATIVE BANK, NEAR PALLIMUKKU,KOLLAM 691021** **R5 BY SRI.D.SOMASUNDARAM BY ADV.SMT.C.S.SHEEJA, SR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.29818 of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is the Member of the 5[th] respondent Service Co-operative Bank, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P6 communication dated nil issued by the 3[rd] respondent Electoral Officer and seeking a writ of mandamus commanding the respondents to accept his nomination paper and permit him to contest the election to the governing body of the 5[th] respondent Bank, in terms of Ext.P2 election notification issued by the 2[nd] respondent State Cooperative Election Commission. 2. On 11.9.2018 when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 4. Urgent notice on admission by special messenger was ordered to the 5[th] respondent ## **W.P.(C)No.29818 of 2018** ## **:-3-:** returnable by 13.9.2018. Learned Senior Government Pleader was directed to get instructions. 3. On 13.9.2018, when this writ petition came up for further consideration, the 5[th] respondent entered appearance through counsel and sought time. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 4 and also the learned counsel for the 5[th] respondent Bank. 5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P6 communication dated nil issued by the 3[rd] respondent Electoral Officer, whereby the nomination submitted by the petitioner to context in the election to the governing body of the 5[th] respondent Bank, scheduled to be held on 23.9.2018, in terms of Ext.P2 election notification, stands rejected for the ## **W.P.(C)No.29818 of 2018** ## **:-4-:** reason that the petitioner has not produced the certificate issued by the Revenue Official to prove his community status either at the time of filing nomination or at the time of scrutiny. 6. The learned counsel for the petitioner would submit that though the certificate issued by Revenue Officials to prove community status of the petitioner was not produced along with the nomination, the same was made available to the 3[rd] respondent Returning Officer at the time of scrutiny. Per contra, the learned Senior Government Pleader, on instructions, would submit that such certificate was not produced at the time of scrutiny. A reading of Ext.P5 representation submitted by one A.Nazarudeen, another Member of the 5[th] respondent Society, on behalf of the petitioner, would indicate that the petitioner could not produce certificate to prove his ## **W.P.(C)No.29818 of 2018** ## **:-5-:** community status, even at the time of scrutiny of nomination. 7. Having considered the submissions made by the learned counsel on both sides, this Court finds that the issue raised in this writ petition as to the legality or otherwise of Ext.P6 communication issued by the 3[rd] respondent Electoral Officer rejecting the nomination submitted by the petitioner squarely falls within the ambit of clause (c) of sub-section (2) of Section 69 of the Kerala Co-operative Societies Act, 1969. 8. If the petitioner is having any dispute in connection with the election to the governing body of the 5[th] respondent Bank, which is scheduled to be held on 23.9.2018, in terms of Ext.P2 election notification issued by the 2[nd] respondent State Co- operative Election Commission, such dispute can be raised before the Co-operative Arbitration Court ## **W.P.(C)No.29818 of 2018** ## **:-6-:** 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. 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. Rule 35A(6)(e)(ii) deals with ## **W.P.(C)No.29818 of 2018** ## **:-7-:** rejection of nomination paper. If that be so, any dispute in relation to rejection of nomination paper by the Electoral Officer, in exercise of his powers under under sub-rule (6) of Rule 35A of the Rules, is a dispute arising in connection with that election, which can be raised before the Cooperative 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. 9. 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 Cooperative Societies Elections to Committees Rules, 1971, the Apex Court held that, the preparation of provisional list of voters, filing of objection ## **W.P.(C)No.29818 of 2018** ## **:-8-:** 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. 10. 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 ## **W.P.(C)No.29818 of 2018** ## **:-9-:** 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 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. 11. 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 ## **W.P.(C)No.29818 of 2018** ## **:-10-:** 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. 12. Part IXB of the Constitution of India, inserted by the Constitution (97th 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 ## **W.P.(C)No.29818 of 2018** ## **:-11-:** 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 cooperative 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. ## 13. 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 ## **W.P.(C)No.29818 of 2018** ## **:-12-:** 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 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. **==> picture [402 x 13] intentionally omitted <==** referred to supra, conclusion is irresistible that if the petitioner is having any dispute in relation to rejection of his nomination in the election ## **W.P.(C)No.29818 of 2018** ## **:-13-:** scheduled to be held on 23.9.2018 in terms of Ext.P2 notification issued by the 2[nd] respondent State Co-operative Election Commission, he 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 he cannot approach this Court seeking interference under Article 226 of the Constitution of India. In the result, this writ petition is dismissed, without prejudice to the right of the petitioner to raise any dispute arising in connection with the election to the governing body of the 5[th] respondent Bank, conducted in terms of Ext.P2 election notification issued by the 2[nd] respondent State Cooperative Election Commission, by invoking the statutory remedy available under Section 69, within ## **W.P.(C)No.29818 of 2018** ## **:-14-:** a period of one month from the date of election. It is made clear that the observations, if any made in this judgment, touching the merits of the factual contentions, are made for the limited purpose of disposal of this writ petition and the Co-operative Arbitration Court shall proceed with any dispute raised by the petitioner under Section 69 of the Act, in connection with the election to the governing body of the 5[th] respondent Bank, untrammelled by any such observations. Sd/- **ANIL K.NARENDRAN JUDGE** ami/19.9.18 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMMUNITY CERTIFICATE DATED 31.8.2018 ISSUED BY THE TAHSILDAR, KOLLAM.** **EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 23.7.2018 ISSUED BY THE STATE COOPERATIVE ELECTION COMMISSION.** **W.P.(C)No.29818 of 2018** **:-15-:** |**EXHIBIT P3**|**TRUE COPY OF THE ADMISSION REGISTRAR IN**| |---|---| ||**VELAYUDHA VILASOM VOCATIONAL HIGHER**| ||**SECONDARY SCHOOL**| |**EXHIBIT P4**|**TRUE COPY OF THE RECEIPT**| |**EXHIBIT P5**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**31.8.2018**| |**EXHIBIT P6**|**TRUE COPY OF THE REPLY DATED NIL.**| |**EXHIBIT P7**|**TRUE COPY OF THE COMMUNICATION DATED**| ||**31.8.2018**| ||**//TRUE COPY//**| ||**P.A.TO JUDGE**| |**ami/**||