Shankarankutty K., Ahammedkutty and NalINAKSHAN v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY,THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940** ## **WP(C).No. 2192 of 2019** ## **PETITIONERS:** - **1 SHANKARANKUTTY K., AGED 58 YEARS S/O CHATHU, KUMBALAKUZHI HOUSE, ANDIYORKUNNU, VALIYAPARAMBA POST, PULIKKAL, MALAPPURAM DISTRICT-673637.** - **2 AHAMMEDKUTTY, AGED 70 YEARS S/O MUHAMMED, CHALAKANDI, MUTTAYOOR, PULIKAL, MALAPPURAM DISTRICT-673637.** - **3 NALINAKSHAN, AGED 52 YEARS S/O CHOPPUNNI, KIZHAKKEPURAKKAL, VENNAYUR, PULIKKAL, MALAPPURAM DISTRICT-673637.** **BY ADV. SRI.E.C.AHAMED FAZIL** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF COOPERATION, THIRUVANANTHAPURAM-695101.** - **2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, NEAR PRESS CLUB, THIRUVANANTHAPURAM-695101.** **:-2-:** ## **W.P.(C)No.2192 of 2019** - **3 THE ELECTION COMMISSIONER OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, NEAR PRESS CLUB, THIRUVANANTHAPURAM-695101.** - **4 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MALAPPURAM, CIVIL STATION, UP HILL, MALAPPURAM-676505.** - **5 THE ELECTORAL OFFICER/THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MALAPPURAM, MINI CIVIL STATION, MANJERI, MALAPPURAM-676121.** - **6 THE RETURNING OFFICER/UNIT INSPECTOR, KONDOTTY UNIT, KONDOTTY, MALAPPURAM-673638.** - **7 KONDOTTY REGIONAL CO-OPERATIVE HOUSING SOCIETY LIMITED, (F 1622) KONDOTTY, MALAPPURAM-673638 REPRESENTED BY ITS SECRETARY.** - **BY ADV. SRI.P.M.RAFIQ SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.2192 of 2019** ## **:-3-:** ## **J U D G M E N T** The petitioners, who are stated to be A-class members of the 7[th] respondent Society 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.P2 election notification dated 26.12.2018 issued by the 3[rd] respondent State Co-operative Election Commission (wrongly described in the cause title of this writ petition as the Election Commissioner of Co-operative Societies) for conducting election to the Managing Committee/ Board of the 7[th] respondent Society, which is scheduled to be held on 5.2.2019 which was published in Chandrika and Veekshanam Daily on 29.12.2018. The petitioners have also sought for a writ of mandamus commanding the 3[rd] respondent State ## **W.P.(C)No.2192 of 2019** ## **:-4-:** Co-operative Election Commission to issue fresh order to conduct election to the Managing Committee/Board of the 7[th] respondent Society or in the alternative to direct the 6[th] respondent Returning Officer to accept the nomination of petitioners. 2. On 24.1.2019, when this writ petition came up for admission, the petitioners filed I.A.No.1/2019, seeking permission to amend the writ petition for correcting the typographical mistakes. By order dated 24.1.2019, the petitioners were permitted to withdraw the said interlocutory application, without prejudice to their right to file a proper application for amendment. Thereafter, on 25.1.2019, I.A.No.2/2019 filed by the petitioners to correct the typographical mistakes crept while drafting the writ petition was allowed and accordingly the amended writ petition ## **W.P.(C)No.2192 of 2019** ## **:-5-:** was filed on 28.1.2019. 3. On 28.1.2019, this Court issued urgent notice on admission by special messenger to the 7[th] respondent, returnable by 31.1.2019, in the amended writ petition. The learned Senior Government Pleader took notice on admission for respondents 1 to 6. The learned Senior Government Pleader was directed to get instructions. 4. A counter affidavit has been filed on behalf of the 7[th] respondent, wherein it has been stated that Ext.P1 order of Kerala State Co- operative Election Commission was communicated by e-mail to the said respondent only on 28.12.2018. In order to substantiate the said fact, a copy of the e-mail communication is placed on record as Ext.R7(a). Thereafter, publication was made in Chandrika and Veekshanam Dailies on the very next day itself, i.e., on 29.12.2018. In order to show ## **W.P.(C)No.2192 of 2019** ## **:-6-:** that copy of Ext.P1 order of the State Co-operative Election Commission was received by post only on 4.1.2019, the 4[th] respondent has placed on record Ext.R4(b), a photocopy of the envelop in which Ext.P1 order of the 3[rd] respondent State Co- operative Election Commission was sent to the 7[th] respondent Society. 5. Heard the learned counsel for the petitioners, the learned Senior Government Pleader appearing for respondents 1 to 6 and also the learned counsel for the 7[th] respondent Society. 6. According to the petitioners, despite the specific direction contained in Ext.P1 order, Ext.P2 election notification was not published in any newspaper having circulation in the area of operation of the 7[th] respondent Society on or before 28.12.2018. Apart from that the said notification was not published in the notice board of the 7[th] ## **W.P.(C)No.2192 of 2019** ## **:-7-:** respondent Society. On account of the delay of one day in publishing the election notification, the entire process of election is vitiated and as such, interference of this Court in the process of election is warranted. When Ext.P2 election notification was admittedly published in two dailies on 29.12.2018, the petitioners cannot now contend that they came to know about the election notification only on 20.1.2019. 7. If the petitioners are having any dispute in connection with the election to the Managing Committee of the 7[th] respondent Society, scheduled to be held on 5.2.2019 in terms of Ext.P2 notification dated 28.12.2018 issued by the 3[rd] respondent State Co-operative Election Commission, such dispute can be raised before the Co-operative Arbitration Court constituted under Section 70A of the Act, by invoking the statutory remedy available ## **W.P.(C)No.2192 of 2019** ## **:-8-:** 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 of the Board of Management or any Officer of the Society, shall also be deemed to be a dispute for the purposes of sub-section (1) of Section 69 of the Act. Going by the Explanation to clause (c) of subsection (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 dispute in relation to conduct of election can be raised before the Co-operative Arbitration Court ## **W.P.(C)No.2192 of 2019** ## **:-9-:** 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 Cooperative 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 ## **W.P.(C)No.2192 of 2019** ## **:-10-:** 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. 9. In **Shaji K. Joseph v. V. Viswanath [(2016) 4** **SCC 7 429]** , 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 ## **W.P.(C)No.2192 of 2019** ## **:-11-:** 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 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 ## **W.P.(C)No.2192 of 2019** ## **:-12-:** 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 (97[th] 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 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 Co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law. As ## **W.P.(C)No.2192 of 2019** ## **:-13-:** 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 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 ## **W.P.(C)No.2192 of 2019** ## **:-14-:** 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. 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 election to the Managing Committee of the 7[th] respondent Society scheduled to be held on 5.2.2019 in terms of Ext.P2 notification issued by the 3[rd] 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 ## **W.P.(C)No.2192 of 2019** ## **:-15-:** 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 the result, this writ petition is dismissed, without prejudice to the right of the petitioners to raise any dispute arising in connection with the election to the Managing Committee of the 7[th] respondent Society, conducted in terms of Ext.P2 election notification issued by the 3[rd] respondent State Co-operative Election Commission, by invoking the statutory remedy available under Section 69 of the Act, within 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 ## **W.P.(C)No.2192 of 2019** ## **:-16-:** 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 7[th] respondent Society, untrammelled by any such observations. **ANIL K.NARENDRAN JUDGE** ami/ ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF ORDER NO.E(2)9396/2018/SCEC DATED 26.12.2018 ISSUED BY THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION** **EXHIBIT P2** **TRUE COPY OF ELECTION NOTIFICATION/ELECTION NOTICE DATED 28.12.2018 PUBLISHED IN CHANDRIKA DAILY ON 29.12.2018** **EXHIBIT R7(a)** **TRUE COPY OF THE E-MAIL COMMUNICATION TO 7TH RESPONDENT FROM THE OFFICE OF REGISTRAR OF CO-OPERATIVE SOCIETY, MANJERI.** **EXHIBIT R7(b) TRUE COPY OF THE ENVELOPE IN WHICH EXT.P1 WAS SENT TO THE 7TH RESPONDENT.**