Sanil Kumar M.K. and Harilal R.G. v. State Co-operative Election Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940** ## **WP(C).No. 1050 of 2019** ## **PETITIONERS:** |**1**|**SANIL KUMAR.M.K.,**| |---|---| ||**MEMBER NO.3024, THIRUVANANTHAPURAM CITY POLICE**| ||**CONSUMER CO-OPERATIVE STORE LTD. NO.T-920,**| ||**NANDAVANAM, THIRUVANANTHAPURAM, RESIDING AT**| ||**AVITTAM, TC 5/2106, VGRA 13, KOKKOD, KOWDIAR,**| ||**THIRUVANANTHAPURAM-695 003.**| |**2**|**HARILAL R.G.,**| ||**MEMBER NO.1919, THIRUVANANTHAPURAM CITY POLICE**| ||**CONSUMER CO-OPERATIVE STORE LTD. NO.T-920,**| ||**NANDAVANAM, THIRUVANANTHAPURAM, RESIDING AT**| ||**SHOBHA NIVAS, CHEMMANNURVILA, PUNNAMOOD,**| ||**PALLICKAL P.O., THIRUVANANTHAPURAM- 695 013.**| **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE SRI.ARUN CHANDRAN SRI.J.VISHNU SRI.RIJI RAJENDRAN SRI.VISHNU B.KURUP** ## **RESPONDENTS:** - **1 THE STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS ADDITIONAL REGISTRAR/SECRETARY.** - **2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KAITHAMUKKU, THIRUVANANTHAPURAM-695 024.** 2 WPC 1050 OF 2019 - **3 THE ELECTORAL OFFICER, (ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM), THE THIRUVANANTHAPURAM CITY POLICE CONSUMER CO-OPERATIVE STORE LTD. NO.T-920, NANDAVANAM, THIRUVANANTHAPURAM-695011.** - **4 THE RETURNING OFFICER, (UNIT INSPECTOR, FORT UNIT), OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KAITHAMUKKU, THIRUVANANTHAPURAM-695 024.** - **5 ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KAITHAMUKKU, THIRUVANANTHAPURAM-695 024.** - **6 THE THIRUVANANTHAPURAM CITY POLICE CONSUMER, CO-OPERATIVE STORE LTD. NO. T-920, NANDAVANAM, THIRUVANANTHAPURAM-695 011, REPRESENTED BY THE SECRETARY.** - **7 THE ADMINISTRATIVE COMMITTEE, THIRUVANANTHAPURAM CITY POLICE CONSUMER STORE LTD.NO.T-920, NANDAVANAM, THIRUVANANTHAPURAM-695 011, REPRESENTED BY ITS CONVENOR, SASIKUMAR P.** **BY ADV. SRI.M.SASINDRAN ADV.C.S.SHEEJA, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 WPC 1050 OF 2019 ## **JUDGMENT** The petitioners, who are the former Secretary and former member of the Board of Directors of the 6[th] respondent Thiruvananthapuram City Police Consumer Co-operative Store Ltd, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 draft voters list and Ext.P9 final voters' list; a writ of mandamus commanding the 3[rd] respondent to include the eligible 637 members, whose names are deleted from the draft voters list as well as final voters list and permit them to exercise their franchise in the election notified as per Ext.P3; a writ of mandamus commanding the 3[rd] respondent to remove the names of ineligible persons, whose names were pointed out vide Ext.P7 objection as they are ineligible to be included as members of the Society as per the byelaws; and to declare that the procedure adopted by the 3[rd] respondent in publication of Ext.P4 draft voters list as well as Ext.P9 final voters list and all further proceedings are vitiated by 4 WPC 1050 OF 2019 fraud and procedural irregularity. 2. On 14.01.2019, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 5. Respondents 6 and 7 entered appearance through counsel. Respondents were directed to file counter affidavit. 3. Heard the learned Senior Counsel for the petitioners, the learned Senior Government Pleader appearing for respondents 1 to 5 and also the learned counsel for respondents 6 and 7. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on the process of election pursuant to Ext.P4 draft voters list and Ext.P9 final voters list published by the 3[rd] respondent Electoral Officer in the election to the Managing Committee of the 6[th] respondent Society, which is scheduled to be held on 30.01.2019, in terms of Ext.P3 election notification dated 26.12.2018 issued by the State Co-operative Election Commission. 5. In the writ petition, the grievance of the petitioners is that some eligible members numbering 637 are not included in WPC 1050 OF 2019 5 Ext.P4 draft voters list, followed by Ext.P9 final voters list. In addition to this, the name of ineligible persons pointed out in Ext.P7 objections are included in Ext.P9 final voters list. 6. As per Ext.P3 election notification, the preliminary voters list was published on 29.12.2018 at 11.00 am. The time limit prescribed for submission of objections, if any, to the preliminary voters list was from 29.12.2018 at 11.00 am to 05.01.2019 at 5.00 pm. Thereafter, the objections were considered on 07.01.2019 from 9.00 am to 1.00 pm and the final voters list was published on 07.01.2019 at 4.00 pm, by the Electoral Officer. The 1[st] petitioner submitted Ext.P5 objection before the Electoral Officer on 05.01.2019 to Ext.P4 preliminary voters list, against exclusion of 612 members while preparing the preliminary voters list. The 2[nd] petitioner submitted Ext.P7 objection dated 05.01.2019 to Ext.P4 preliminary voters list, for removing 230 persons, who are ineligible for inclusion in the voters list. The said objections were followed by Ext.P8 objection before the State Co-operative Election Commission. After the submission of Exts.P5 and P7 objections, the 3[rd] respondent Electoral Officer published the final voters list, which is placed on 6 WPC 1050 OF 2019 record as Ext.P9, which consists of 613 members, as against 661 members in Ext.P4 preliminary voters list. 7. If the petitioners are having any objections as to the preparation of voters list in the election to the Managing Committee of the 6[th] respondent Society, scheduled to be held on 31.01.2019, it is for them to raise such dispute 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. 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. If that be so, any WPC 1050 OF 2019 7 dispute in relation to preparation of final voters list 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 Co-operative 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. 8. 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 Co-operative Societies Elections to Committees Rules, 1971, the Apex Court held that, the preparation of provisional list of voters, filing of objection 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, 8 WPC 1050 OF 2019 finalisation of electoral rolls, holding of election and declaration of the result of election. ## 9. 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 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. 10. 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 WPC 1050 OF 2019 9 nomination on totally untenable grounds is an example which could be rectified without 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. 11. Part IXB of the Constitution of India, inserted by the Constitution (97th Amendment) Act, 2011 deals with Cooperative Societies. Article 243ZK inserted by the said Amendment Act deals with election of members of board of Cooperative 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 WPC 1050 OF 2019 10 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. 12. 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 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 Co-operative 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 WPC 1050 OF 2019 11 of the Constitution can extend the period in election matters. 13. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that if the petitioners are having any dispute in relation to the preparation of final voters list for the election scheduled to be held on 31.01.2019 in terms of Ext.P3 notification issued by the 1st respondent State Co-operative Election Commission, they 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, they cannot approach this Court seeking interference under Article 226 of the Constitution of India. 14. In such circumstances, this writ petition is dismissed without prejudice to the right of the petitioners to raise dispute, if any, in connection with the election scheduled on 30.01.2019 to the Managing Committee of the 6th respondent Society before the Co-operative Arbitration Court, by invoking the statutory remedy under Section 69 of the Act, within one month from the date of election. It is made clear that the observations, if any, made in this WPC 1050 OF 2019 12 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 petitioners under Section 69 of the Act, in connection with the election to the Managing Committee of the 6th respondent Society, untrammelled by any such observations. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 13 WPC 1050 OF 2019 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ELECTION NOTIFICATION PUBLISHED IN KERALA KAUMUDI DAILY ON 25.8.2018.** **EXHIBIT P2 TRUE COPY OF THE NOTIFICTION NO.E(1)5801/2018/S.C.E.C DATED 29.9.2018.** - **EXHIBIT P3 TRUE COPY OF THE ORDER NO.E(1) 5801/2018/S.C.E.C DATED 26.12.2018 WITH ELECTION NOTIFICATION.** - **EXHIBIT P4 TRUE COPY OF THE PRELIMINARY VOTERS LIST DATED 29.12.2018.** - **EXHIBIT P5 TRUE COPY OF THE OBJECTION SUBMITTED BY THE IST PETITIONER TO THE ELECTORAL OFFICER DATED 5.1.2019.** - **EXHIBIT P6 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE IST PETITIONER TO THE ELECTION COMMISSION DATED 5.1.2019.** - **EXHIBIT P7 TRUE COPY OF THE OBJECTION SUBMITTED BY THE 2ND PETITIONER TO THE ELECTORAL OFFICER DATED 5.1.2019.** - **EXHIBIT P8 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 2ND PETITIONER TO THE ELECTION COMMISSION DATED 5.1.2019.** - **EXHIBIT P9 TRUE COPY OF THE FINAL VOTERS LIST DATED 7.1.2019.** - **EXHIBIT P10 TRUE COPY OF THE LIST OF INELIGIBLE CANDIDATES WHOSE NAMES WERE FOUND A PLACE IN THE FINAL VOTERS LIST.** **EXHIBIT P11 TRUE COPY OF THE COMMUNICATION DATED 14.9.2018 ISSUED BY THE ASSISTANT REGISTRAR.** 14 WPC 1050 OF 2019 **EXHIBIT P12 TRUE COPY OF THE FINAL VOTERS LIST PREPARED BY THE ELECTORAL OFFICER.** ## **RESPONDENTS' EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**