Sanil Kumar M.K. v. State Co-operative Election Commission & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** ## **WP(C).No. 1260 of 2019** ## **PETITIONER:** **SANIL KUMAR.M.K AGED 45 YEARS S/O. KRISHNAN NAIR, 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 - 695003.** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE SRI.ARUN CHANDRAN SRI.J.VISHNU SRI.RIJI RAJENDRAN** ## **RESPONDENTS:** **1 THE STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM-695033, REPRESENTED BY ITS ADDITIONAL REGISTRAR/SECRETARY.** ## **W.P.(C)No.1260 of 2019** ## **:-2-:** - **2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), KAITHAMUKKU, THIRUVANANTHAPURAM - 695024.** - **3 THE THIRUVANANTHAPURAM CITY POLICE CONSUMER CO-OPERATIVE STORE LTD. NO. T-920, NANDAVANAM, THIRUVANANTHAPURAM - 695011, REPRESENTED BY THE SECRETARY,** - **4 THE ADMINISTRATIVE COMMITTEE, THIRUVANANTHAPURAM CITY POLICE CONSUMER STORE LTD. NO. T-920, NANDAVANAM, THIRUVANANTHAPURAM-695011, REPRESENTED BY ITS CONVENOR, SASIKUMAR P.** **BY ADVS. SRI.M.SASINDRAN SRI BIMAL K.NATH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.1260 of 2019** ## **:-3-:** ## **J U D G M E N T** The petitioner, who is the former Secretary and former member of the Board of Directors of the 3rd respondent Thiruvananthapuram City Police Consumer Co-operative Store Ltd.No.T-920, which is a Primary Co-operative Society registered under the Kerala Co-operative Societies Act, 1969, and the rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking an order to call for the records leading to Order No.CS.12602/18 dated 28.12.2018, referred to in Ext.P2 notification dated 9.1.2019 and to set aside the same; a declaration that Order No.CS.12602/18 dated 28.12.2018 of the 2nd respondent Joint Registrar of Co-operative Societies, is an abuse of power performed even after initiation of the election proceedings and therefore the same is bad in law; and issue a writ of mandamus commanding the respondents to permit the members of the 3rd ## **W.P.(C)No.1260 of 2019** **:-4-:** respondent Society to cast their votes in the polling scheduled on 30.1.2019 with the existing identity cards issued by the Society, ignoring the notification issued as per Ext.P2. 2. On 15.1.2019 when this writ petition came up for admission, the learned Senior Government Pleader appearing for respondents 1 and 2 and also Sri.M.Sasindran, the learned counsel appearing for respondents 3 and 4 sought time to get instructions. The learned Senior Government Pleader was directed to place on record a copy of the order dated 28.12.2018 of the 2nd respondent Joint Registrar, referred to in Ext.P2 notification. 3. Along with I.A.No.1/2019, the petitioner has produced a copy of the aforesaid order dated 28.12.2018 of the Joint Registrar, as Ext.P7. The learned Senior Government Pleader has also filed a memo producing a copy of that order. 4. A statement has also been filed by the 2nd ## **W.P.(C)No.1260 of 2019** **:-5-:** respondent Joint Registrar, opposing the reliefs sought for. 5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 and 2 and also the learned counsel for respondents 3 and 4. 6. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P2 notice dated 7.1.2019 issued by the 4th respondent Administrative Committee and also the order dated 28.12.2018 of the 2nd respondent Joint Registrar, referred to in Ext.P2, which is now placed on record as Ext.P7. 7. By Ext.P2 notice dated 7.1.2019, the members of the 3rd respondent Society have been informed that, by Ext.P7 order dated 28.12.2018 of the 2nd respondent Joint Registrar, the Society has been directed to cancel the identity cards and Form ## **W.P.(C)No.1260 of 2019** **:-6-:** 6B register and to issue fresh identity cards in accordance with the provisions under the Kerala Co- operative Societies Rules, from the date of Ext.P7 order till 15.1.2019. Therefore, by Ext.P2 notification, the members of the Society are requested to collect fresh identity cards on or before 5.00 p.m. on 27.1.2019, after surrendering their old identity cards. A reading of Ext.P7 order would show that the 2nd respondent Joint Registrar has issued such a direction after taking into consideration the irregularities pointed out in the report of the Assistant Registrar of Co-operative Societies dated 12.12.2018, in the maintenance of admission register and Form 6B register. 8. In **Harilal R.G. v. Joint Registrar of Co-** **operative Societies (General) and others (2018 (5)** **KHC 902)** , a Division Bench of this Court held that the Joint Registrar was well within his powers under Section 66A of the Kerala Co-operative ## **W.P.(C)No.1260 of 2019** ## **:-7-:** Societies Act to direct the Society to recall the laminated identity cards with bar codes and issue fresh identity cards. The Division Bench ordered that, election would be vulnerable to challenge if laminated identity cards with bar code are used and the interference of the Joint Registrar by issuing the order impugned in the writ petition was timely. 9. Section 83 of the Co-operative Societies Act deals with appeals to other authorities. As per clause (j) of sub-section (1) of Section 83, an appeal shall lie against any order made by any person exercising all or any of the powers of the Registrar. As per sub-section (2) of Section 83, an appeal under sub-section (1) of that Section shall be made within 60 days from the date of order or decision to the Government, if the order or decision was made by the Registrar; and to the Registrar, in other case. As per sub-section (2), the Government or the Registrar, as the case may ## **W.P.(C)No.1260 of 2019** ## **:-8-:** be, shall pass such orders on such appeal as they or he may think fit. 10. In **Commissioner of Income Tax V. Chhabil Das Agarwal [(2014) 1 SCC 603]** the Apex Court reiterated that, non-entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to ## **W.P.(C)No.1260 of 2019** ## **:-9-:** invoke the extraordinary jurisdiction under Article 226. 11. Ext.P7 order dated 28.12.2018 of the 2[nd] respondent Joint Registrar, issued in exercise of the powers of the Registrar, can be challenged before the Government by invoking the statutory remedy under Section 83(1)(j) of the Act. Moreover, if there is any dispute in connection with the election to the Board of Directors of the 3[rd] respondent Society, scheduled to be held on 30.1.2019, such dispute can be raised by invoking the provisions under Section 69 of the Act, by approaching the Co-operative Arbitration Court, within the time limit specified in sub-section (3) of Section 69 of the Act. 12. In such circumstances, no interference is warranted on Ext.P2 notification dated 7.1.2019 issued by the 4[th] respondent Administrative Committee of the 3[rd] respondent Society or Ext.P7 ## **W.P.(C)No.1260 of 2019** ## **:-10-:** order dated 28.12.2018 of the 2[nd] respondent Joint Registrar, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India. In the result, this writ petition fails on the aforesaid ground and the same is accordingly dismissed. All legal and factual contentions raised by the petitioner are left open to be raised before the appropriate authority, at appropriate stage. **==> picture [35 x 11] intentionally omitted <==** **ANIL K.NARENDRAN JUDGE** ami/ ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO.E(1)5801/2018/S.C.E.C DATED 26/12/2018 WITH ELECTION NOTIFICATION. EXHIBIT P2 TRUE COPY OF THE NOTIFICATION PUBLISHED IN DESHABHIMANI DAILY ON 09/01/2019.** ## **W.P.(C)No.1260 of 2019** ## **:-11-:** ## **EXHIBIT P3** **TRUE COPY OF THE REQUEST SUBMITTED BY ONE OF THE MEMBER OF THE 3RD RESPONDENT SOCIETY DATED 12/01/2019.** ## **EXHIBIT P4** **TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER DATED 14/01/2019 TO THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES.** ## **EXHIBIT P5** **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 14/01/2019 BEFORE THE JOINT REGISTRAR.** **EXHIBIT P6** **TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER TO THE STATE CO-OPERATIVE ELECTION COMMISSION ON 14/01/2019.** **EXHIBIT P7** **TRUE COPY OF THE ORDER BEARING NO.CS 12602/18 DATED 28.12.2018 PASSED BY THE JOINT REGISTRAR.** **' - RESPONDENTS EXTS.:** **ANNEXURE R2(a)** **TRUE COPY OF LETTER NO.PPD/4729/18 DATED 22.12.2018**