Sankaranarayanan and others v. State Co-Operative Election Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **MONDAY, THE 4TH DAY OF DECEMBER 2017/13TH AGRAHAYANA, 1939** **WP(C).No. 38799 of 2017 (Y)** **----------------------------** ## **PETITIONERS:** - **------------** **1. SANKARANARAYANAN, THIRUTHAMPADAM HOUSE, POTHUNDI P.O., PALAKKAD DISTRICT-678508.** **2. M.C.KUNJU, MOOZHIKULAM HOUSE, POONGODE, POTHUNDI P.O.,** **PALAKKAD DISTRICT-678508.** **3. SAHADEVAN, SARANYA NIVAS, PUTHENTHOTTAM, CHATHAMANGALAM, NENMARA, PALAKKAD DISTRICT-678508.** **4. LAKSHMANAN, APPANPARA HOUSE, VITHINASSERY, NENMARA, PALAKKAD DISTRICT-678508.** **5. MANIYAN,** - **VADAKKUTTIL HOUSE, THEKKETHARA, VITHINASSERY,NENMARA P.O., PALAKKAD DISTRICT-678508.** **6. KALADHARAN A., PUZHAKKALTHARA HOUSE, AYILOOR P.O., PALAKKAD DISTRICT-678508.** **7. SUDEVAN K.,** - **CHATTIYODE HOUSE, POTHUNDI P.O., PALAKKAD DISTRICT-678508.** **8. BINDU, THIRUTHANPADAM HOUSE, POTHUNDI P.O., PALAKKAD DISTRICT-678508.** **9. LAKSHMI,** - **THIRUTHANPADAM HOUSE, POTHUNDI P.O., PALAKKAD DISTRICT-678508.** **--2--** **--2--** ## **WP(C).No. 38799 of 2017 (Y) ----------------------------** **10. THANKAMANI, THEKKUMPURAM HOUSE, CHATHAMANGALAM, PALAKKAD DISTRICT-678508.** **11. THANKAMMA,** - **MANGAMADA HOUSE, POTHUNDI P.O., PALAKKAD DISTRICT-678508.** **BY ADV. SRI.GEORGE POONTHOTTAM** **RESPONDENTS:** **------------** **1. THE STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033, REPRESENTED BY THE SECRETARY.** **2. THE RETURNING OFFICER, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD.NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **3. THE ELECTORAL OFFICER, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD.NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **4. VITHINASSERY SERVICE CO-OPERATIVE BANK LTD.NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508, REPRESENTED BY THE SECRETARY.** **5. KALADHARAN K.,MEMBER NO.1808, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD. NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **6. JYOTHIKUMAR A.S., MEMBER NO.4777, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD. NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **7. THANKAPPAN R., MEMBER NO.5408, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD. NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **--3--** **--3--** ## **WP(C).No. 38799 of 2017 (Y)** ## **----------------------------** **8. VINESH KUMAR V., MEMBER NO.7956, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD. NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **9. SURENDRAN K.S., MEMBER NO.1714, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD. NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **10. PRAKASHAN P., MEMBER NO.6262, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD. NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **11. NARAYANAN K., MEMBER NO.4486, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD. NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **12. PREETHI RAJENDRAN, MEMBER NO.8640, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD. NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **13. SHYAMALA P., MEMBER NO.5044, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD. NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **14. SATHYABHAMA A., MEMBER NO.13988, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD. NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** **15. RAJAN M., MEMBER NO.12088, VITHINASSERY SERVICE CO-OPERATIVE BANK LTD. NO.282, VITHINASSERY, NENMARA P.O., CHITTUR TALUK, PALAKKAD-678508.** - **R1 TO R3 BY SPECIAL GOVT. PLEADER SRI.K.S.MUHAMMED HASHIM** - **R4 BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 38799 of 2017 (Y) ----------------------------** ## **APPENDIX** |**PETITIONERS' EXHIBITS:**| |---| |**EXHIBIT P1: TRUE COPY OF THE ELECTION NOTIFICATION**| |**NO.E(2)5163/2017/S.C.E.C. DATED 12.10.2017.**| |**EXHIBIT P2: PHOTOGRAPHS SHOWING THE BLOCKADE CAPTURED BY THE**| |**PETITIONERS DATED 22.11.2017.**| |**EXHIBIT P3: TRUE COPY OF THE COMPLAINT PREFERRED BY THE**| |**1ST PETITIONER BEFORE THE SUB INSPECTOR OF**| |**POLICE, NENMARA, PALAKKAD DATED 22.11.2017.**| |**EXHIBIT P4: TRUE COPY OF THE LIST OF ELIGIBLE CANDIDATES**| |**WHOSE NOMINATIONS WERE ACCEPTED.**| |**RESPONDENTS' EXHIBITS**<br>**:**<br>**NIL.**| **//TRUE COPY// P.S. TO JUDGE** **mbr/** **ANIL K. NARENDRAN, J. ----------------------------------------------W.P(C) No.38799 of 2017 -----------------------------------------------** Dated this the 4[th] day of December, 2017 ## **J U D G M E N T** The petitioners, who are stated to be the members of Vithinassery Service Co-operative Bank Ltd. No.282, the 4[th] respondent Society, have approached this Court in this Writ Petition filed under Article 226 of the Constitution of India, seeking an order to set aside Ext.P4 list of candidates as having 'elected unopposed' in the election to the Managing Committee of the said Society conducted as per Ext.P1 election notification dated 12.10.2017. The petitioners have also sought for a declaration that the election process conducted in the 4[th] respondent Society is vitiated by fraud, malafides and is illegal and that, there was no election to the Managing Committee as notified in Ext.P1. 2. Heard the learned counsel for the petitioners, the learned counsel for the 4[th] respondent Society, and also the learned Special Government Pleader appearing for the W.P(C) No.38799 of 2017 :-2-: respondents 1 to 3. 3. According to the petitioners, the 3[rd] respondent Electoral Officer did not publish the draft voters list and final voters list as provided under Ext.P1 election notification. On 22.11.2017, the Secretary of the 4[th] respondent Society refused to give them nomination papers, stating that, the 2[nd] respondent Returning Officer is not in station. At the same time, nomination papers were issued to the members who owe their allegiance to the ruling party. Further, the entry to the Society was blocked by the leaders and workers of the Communist Party of India (Marxist) and the local police chose to remain mute spectators in the presence of the local MLA. In support of the aforesaid contentions, the petitioners would rely on Ext.P2 photographs and Ext.P3 complaint dated 22.11.2017 submitted before the Sub Inspector of Police Nemmara. 4. Any dispute arising in connection with the election of the Managing Committee of the 4[th] respondent Society, can be raised before the Co-operative Arbitration Court constituted under W.P(C) No.38799 of 2017 :-3-: Sec.70A of the Kerala Co-operative Societies Act, 1969 by invoking the statutory remedy available under Section 69 of the said Act, within one month from the date of election. 5. 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, finalisation of electoral rolls, holding of election and declaration of the result of election. If there was a breach of rule or certain mandatory W.P(C) No.38799 of 2017 :-4-: provisions of the rules were not complied with while preparing of the electoral roll, the same could be challenged under Rule 81(d) (iv) of the Rules by means of an election petition. The preparation of electoral roll is part of the election process and if there is any breach of the rules in preparing the electoral roll, the same can be called in question after the declaration of the result of the election by means of an election petition before the tribunal. 6. 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 W.P(C) No.38799 of 2017 :-5-: disputes with regard to election should be dealt with only after completion of the election. 7. In **Thiruvalla East Co-operative Bank Ltd. v. State Co-operative Election Commission (2017 (1) KLT 921)** a Division Bench of this Court held 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. 8. In **Santhosh A.P. v. State Election Commission, Kerala and others (2015 (5) KHC 599)** , in the context of the provisions under the Kerala Panchayat Raj Act, 1994, this Court declined interference under Article 226 of the Constitution of India W.P(C) No.38799 of 2017 :-6-: on the ground that, improper rejection of the nomination papers is a specific ground available under Section 102(1)(c) of the said Act, in addition to other grounds, for declaring the election to be void in an election petition. The judgment in **Santhosh's case** has been affirmed by a Division Bench of this Court in **W.A.No. 339 of 2016** filed by the State Election Commission and another. 9. The learned counsel for the petitioners placed reliance on the decisions of the Division Bench of this Court in **Antnrayose v. Senior Inspector of Co-operative Societies (1992 (2) KLT 489)** and **Pankajaksha Panicker v. Venugopalan Nair (1993 (2) KLT 641)** . 10. In **Antnrayose's case (supra)** the only objection to the nomination paper, that was raised by the Returning Officer, was that in the place where the name of the Society had to be filled up, instead of being filled up by hand, a seal of the Society was put. The seal mentions the name of the Society. In other words, the seal was substituted for what could have been written by hand. The Division Bench held that, there is substantial W.P(C) No.38799 of 2017 :-7-: compliance with the provisions that the name of the Society has to be filled up in that particular column. In fact, the seal was put against the said column, that being the heading of the nomination paper. Therefore, the rejection of the nomination paper is arbitrary and illegal, and the party need not be driven to proceedings under Section 69 of the Kerala Co-operative Societies Act and that, this Court could in such patent cases interfere under Article 226 of the Constitution of India. 11. In **Pankajaksha Panicker's case (supra)** the rejection of the nominations filed by the respondents therein was on the ground that the column relating to date of election was left blank. The Division Bench held that rejection of nominations was wholly unsupportable. The date was known to everybody and was not in dispute and was, in fact, stated in the supporting affidavit, etc. Reiterating the earlier view taken in **Ravi v. Kottayam Cooperative Urban Bank Ltd. (1993 (1) KLT 644)** the Division Bench interfered with the matter, particularly in the light of the patent illegalities in the rejection of nominations which are wholly W.P(C) No.38799 of 2017 :-8-: unsupportable. Further, on the facts of that case, there was no question of adducing any documentary or oral evidence and there is no need to adduce elaborate oral or documentary evidence. 12. Therefore, the law laid down by the Division Bench of this Court in Antnrayose's case and Pankajaksha Panicker's case referred to supra do not support the case of the petitioners in any manner. 13. Any dispute with regard to the election conducted as per Ext.P1 notification has to be raised, after completion of the process of election, by invoking the statutory remedy available under Section 69 of the Kerala Co-operative Societies Act. Therefore, no interference of this Court under Article 226 of the Constitution of India is warranted in this Writ Petition, in the process of election conducted as per Ext.P1 notification. In the result, this writ petition fails and the same is accordingly dismissed, without prejudice to the legal right of the petitioners to invoke the statutory remedy available under Section 69 of the Kerala Co-operative Societies Act, after completion of W.P(C) No.38799 of 2017 :-9-: the process of election. Sd/- **ANIL K. NARENDRAN JUDGE** //True Copy// P.A to Judge ab