High Court of KeralaSingle JudgeWrit petition dismissed; liberty to challenge p...

Sadanandan K v Mukkom Ksheerolpadaka Sahakarana Sangham Ltd. & Others (W.P.(C).No. 35583 of 2017)

Case / Petition Number:W.P.(C) No. 35583 of 2017

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Shaji P. Chaly
Judgment Date
2017-11-15
Court Decision / Holding
The writ petition is dismissed. However, liberty is reserved to challenge the election after its completion, and in accordance with law. All questions of fact and law are left open, and law and order shall be maintained if there is any apprehension.
Final Disposition
Writ petition dismissed; liberty to challenge post-election; law and order to be maintained if needed.

Parties to the Case

Appellants / Petitioners

  • Sadanandan K

Respondents

  • Mukkom Ksheerolpadaka Sahakarana Sangham Ltd. No.F.1814, (D) APCOS, Mukkom P.O., Kozhikode, PIN-673602
  • State Co-operative Election Commission, 3rd Floor, Co-Bank Towers, Palayam, Vikas Bhavan P.O., Thiruvananthapuram, PIN-695033
  • The Electoral Officer, Mukkom Ksheerolpadaka Sahakarana Sangham Ltd.No.F.1814 (D) APCOS, KSHEERA VIKASANA OFFICE, CIVIL STATION, KOZHIKODE, PIN-673020
  • The Returning Officer, Mukkom Ksheerolpadaka Sahakarana Sangham Ltd.No.F.1814 (D) APCOS, KSHEERA VIKASANA OFFICER, KUNNAMANGALAM KSHEERA VIKASANA OFFICE, KUNNAMANGALAM, KOZHIKODE, PIN-673020

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. P. P. Jacob

Counsels for Respondents

  • • Sri K. P. Harish (Senior Government Pleader)

Case Synopsis & Summary

Petitioner Sadanandan K approached this Court under Article 226 challenging Ext.P2, the election notification issued by the Mukkom Ksheerolpadaka Sahakarana Sangham Ltd., with the election scheduled for 25 November 2017. The petitioner also sought to have Ext.P8 and Ext.P10 representations considered by the second respondent and to direct the respondents to ensure a free and fair election with a valid voters list, in line with Rule 26 and Rule 35A(4) of the Kerala Co-operative Societies Rules. He pressed for the removal of ineligible persons from the voters list and sought quashing of the election process on grounds of byelaw compliance. The Court examined the issue of whether any interference under Article 226 was permissible after notification. It relied on the Supreme Court’s decisions in Shri Sant Sadguru Janardan Swami v. State of Maharashtra and in Shaji K. Joseph v. V. Viswanath, and noted that post-notification interference is not ordinarily warranted. A Division Bench of this Court in Tiruvalla East Co-operative Bank Ltd. v. State Co-operative Election Commission was cited for the same principle. The Court also referred to the Explanation to Section 69(2)(c) of the Kerala Co-operative Societies Act, 1969, noting that the dispute begins when a general body is constituted to draw up the resolution for conduction of elections. Consequently, the petition was dismissed, but liberty was reserved to challenge the election after its completion, and with the directive that law and order be maintained if needed.

Provisions of Law Cited

Article 226 of the Constitution of IndiaKerala Co-operative Societies Act, 1969 - Section 69(2)(c) (Explanation thereto)Kerala Co-operative Societies Rules 26Kerala Co-operative Societies Rules 35A(3)(a)Kerala Co-operative Societies Rules 35A(4)

Legal Doctrines & Maxims

  • No interference under Article 226 with election after notification (as repeatedly upheld by the Apex Court and this Court)
  • Dispute begins when a general body is constituted to draw up a resolution for conducting the election (Explanation to Sec. 69(2)(c))

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner challenged Ext.P2, an election notification dated 13.10.2017, scheduling the election for 25.11.2017, and sought to quash the notification. He urged that Ext.P8 and Ext.P10 representations be considered by the second respondent and that a free and fair election with a valid voters list be ensured under Rule 26 and Rule 35A(4). He prayed for removal of ineligible voters from the list and for adherence to byelaws and election rules. The relief sought was quashing of the process on grounds of illegality and failure to follow due process.

Contentions of Respondents

The respondents contended that after notification, interference under Article 226 is ordinarily not permissible and the election should proceed. They relied on Supreme Court authorities (Shri Sant Sadguru Janardan Swami; Shaji K. Joseph) and the Division Bench’s view in Tiruvalla East Co-operative Bank case to justify non-interference post-notification. They argued the cure lies in post-election remedies, if any, rather than pre-election judicial intervention.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and othersAIR 2001 SC 3982PositiveApex Court principle that interference under Article 226 is not ordinarily available after election notification; relied upon by the High Court.
Shaji K. Joseph v. V. Viswanath and others2016 (2) KHC 33 (SC)PositiveFollowed as supportive authority for the no-interference stance after notification.
Tiruvalla East Co-operative Bank Ltd. v. State Co-operative Election Commission2017 (1) KLT 921PositiveDivision Bench held that after notification, no interference under Article 226; cited as authority.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 15TH DAY OF NOVEMBER 2017/24TH KARTHIKA, 1939** ## **W.P(C).No. 35583 of 2017 (W) ----------------------------** **PETITIONER : -----------SADANANDAN K** ., **MEMBER NUMBER 2282, KUMMALLY HOUSE, MANASSERY P.O., MUKKOM, KOZHIKODE PIN-673602. BY ADV. SRI.P.P.JACOB** **RESPONDENTS : ------------1. THE MUKKOM KSHEEROLPADAKA SAHAKARANA SANGHAM LTD.NO.F.1814, (D) APCOS, MUKKOM P.O., KOZHIKODE, PIN-673602, REPRESENTED BY ITS SECRETARY. 2. THE STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, CO-BANK TOWERS, PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695033, REPRESENTED BY THE SECRETARY. 3. THE ELECTORAL OFFICER, MUKKOM KSHEEROLPADAKA SAHAKARANA SANGHAM LTD.NO.F.1814 (D) APCOS, ASSISTANT DIRECTOR/ TECHNICAL ASSISTANT, KSHEERA VIKASANA OFFICE CIVIL STATION, KOZHIKODE, PIN-673020.** **-2-** ## **W.P(C).No. 35583 of 2017 (W)** ## **----------------------------** **4. THE RETURNING OFFICER,** **MUKKOM KSHEEROLPADAKA SAHAKARANA SANGHAM LTD.NO.F.1814 (D) APCOS, KSHEERA VIKASANA OFFICER, KUNNAMANGALAM KSHEERA VIKASANA OFFICE, KUNNAMANGALAM, KOZHIKODE, PIN-673020.** **BY SENIOR GOVERNMENT PLEADER : SRI.K.P.HARISH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P(C).No. 35583 of 2017 (W)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **---------------------** **EXHIBIT P1 TRUE PHOTOCOPY OF THE ORDER VIDE NO.E(2)/ 5250/2017/SCEC DATED 13.10.2017.** **EXHIBIT P2 TRUE PHOTOCOPY OF THE ELECTION NOTIFICATION VIDE NO. E(2)/5250/2017/SCEC DATED 13.10.2017.** **EXHIBIT P3 TRUE PHOTOCOPY OF THE VOTERS LIST PUBLISHED CONTAINING 182 MEMBERS.** **EXHIBIT P4 TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE BYELAWS OF FIRST RESPONDENT.** **EXHIBIT P5 TRUE PHOTOCOPY OF THE RELEVANT PAGE OF BYELAWS SHOWING CLAUSE 3 OF BYELAWS. EXHIBIT P6 TRUE PHOTOCOPY OF THE LIST OF ACTIVE MEMBERS AS ON 31.3.2017 PUBLISHED BY THE FIRST RESPONDENT. EXHIBIT P7 TRUE PHOTOCOPY OF THE LIST OF ACTIVE MEMBERS PUBLISHED FOR THE PURPOSE OF ELECTION AS ON 24.9.2017. EXHIBIT P8 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BEFORE THE SECOND RESPONDENT DATED 28.10.2017.** **EXHIBIT P9 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BEFORE THE THIRD RESPONDENT DATED 28.10.2017.** **-2-** ## **W.P(C).No. 35583 of 2017 (W)** ## **----------------------------** **EXHIBIT P10 TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BEFORE THE SECOND RESPONDENT COPY TO THIRD RESPONDENT DATED 3.10.2017.** ## **RESPONDENTS' EXHIBITS :** **---------------------** **EXHIBIT R3(a) TRUE COPY OF THE RELEVANT PAGES OF KERALA CO-OPERATIVE SOCIETIES RULE 35(A).** - **EXHIBIT R3(b) TRUE COPY OF THE CLARIFICATION OF THE BYELAW CLAUSE 3.3(b)(iii) BY THE 3RD RESPONDENT.** **EXHIBIT R3(c) TRUE COPY OF THE RULE FOR ISSUE OF ELECTION NOTIFICATION TO THE MEMBERS MENTIONED IN THE KERALA CO-OPERATIVE SOCIETIES RULE 35A(3)(a).** - **EXHIBIT R3(d) TRUE COPY OF THE CERTIFICATE OF THE 1ST RESPONDENT REGARDING THE PUBLISHING OF ELECTION NOTIFICATION AND PRELIMINARY VOTERS LIST IN THE NOTICE BOARD OF THE SOCIETY DATED 08.11.2017.** - **EXHIBIT R3(e) TRUE COPY OF THE CERTIFICATE ISSUED BY THE 1ST RESPONDENT REGARDING THE ISSUING OF ELECTION NOTIFICATION TO ALL MEMBERS IN THE FINAL VOTERS LIST DATED 01.11.2017.** - **EXHIBIT R3(f) TRUE COPY OF THE RULES TO BE FOLLOWED BEFORE REMOVING A MEMBER FROM MEMBERSHIP.** - **EXHIBIT R3(g) TRUE COPY OF THE CERTIFICATE OF THE 1ST RESPONDENT REGARDING THE REMOVAL OF MEMBERS FROM MEMBERSHIP OF THE SOCIETY DATED 08.11.2017.** **-3-** ## **W.P(C).No. 35583 of 2017 (W)** **----------------------------** **EXHIBIT R3(h) TRUE COPY OF THE COMPLAINT RECEIVED REGARDING EXCLUSION OF ELIGIBLE MEMBERS DATED 18.09.2017.** **EXHIBIT R3(i) TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT DATED 06.10.2017.** - **EXHIBIT R3(j) TRUE COPY OF THE COMPLAINT BY THE PETITIONER TO THE 3RD RESPONDENT DATED 28.10.2017.** - **EXHIBIT R3(k) TRUE COPY OF THE REPLY GIVEN BY THE 3RD RESPONDENT TOWARDS THE COMPLAINT TO THE PETITIONER DATED 06.11.2017.** **//TRUE COPY//** **P.A. TO JUDGE** **bpr** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.35583 of 2017** ## **----------------------------------------------Dated this the 15[th] day of November, 2017** ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following reliefs: _“(i) To issue a writ of certiorari or any other writ, order or direction calling for the records leading to the issue of Ext.P2 and quash the same;_ _(ii) To direct the 2[nd] respondent to consider Ext.P8 and P10 representation with notice to the petitioner and pass orders on the same ensuring a free and fair election with a valid voters list as prescribed by Rule 26 and Rule 35A(4) of the Kerala Co-operative Societies Rules;_ _(iii) To direct the respondents 1 to 3 to remove all ineligible persons from the list of voters being prepared and to be used in the election as prescribed by Rule 35A(4) of the Kerala Co-operative Societies Rules immediately; and_ _(iv) To issue such other reliefs which may be deem fit and proper in the facts and circumstances of the above writ petition.”_ 2. I have heard learned counsel for the petitioner and the learned Senior Government Pleader. Perused the pleadings and the documents on record. 3. It is evident from Ext.P2 that election is notified as per notification dated 13.10.2017, scheduling to conduct on 25.11.2017. The primary question to be considered is, **W.P.(C) No.35583 of 2017** 2 whether any manner of interference is possible under Article 226 of the Constitution of India, in view of the notification issued for conduct of the election. The issue was considered by the 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. V. Viswanath and others'**_ [2016 (2) KHC 33 (SC)]. 4. A Division Bench of this Court in _**'Tiruvalla East Co-operative Bank Ltd. v. State Co-operative Election Commission'**_ [2017 (1) KLT 921] also had occasion to consider the very same issue, and held that, under normal and ordinary circumstances, after notification of the election, no interference is possible under Article 226 of the Constitution of India. 5. That apart, as per the Explanation to Sec.69(2)(c) of the Kerala Co-operative Societies Act, 1969, the dispute starts when a general body is constituted for the purpose of drawing up a resolution for conducting the election. In that view of the matter, I do not think that the reliefs sought for by the petitioner can be granted in this writ petition. 3 ## **W.P.(C) No.35583 of 2017** The writ petition fails, accordingly, it is dismissed, however, leaving open the liberty to challenge the election if advised so, after the election is over, and in accordance with law. All questions of fact and law raised in this writ petition are left open. However, it is made clear that, law and order shall be maintained, if there is apprehension with respect to the same. Sd/- **SHAJI P. CHALY JUDGE** St/15.11.2017