Sudheesh V. Parakkal & Others v. State Co-operative Election Commission & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY, THE 25TH DAY OF JULY 2018 / 3RD SRAVANA, 1940** ## **WP(C).No. 23748 of 2018** ## **-------------------------** **PETITIONERS:** **--------------** **1 SUDHEESH V. PARAKKAL,MAKKADA.P.O,KAKKODI,KOZHIKODE.** **2 UNNIKRISHNAN.C.K, CHALIL KURINHOLI,KAKKODI.P.O,KOZHIKODE.** **3 SOMANATH.K, KUZHICHAPALLY,MAKKADA.P.O,CHELAPRAM,KOZHIKODE.** **4 RAJEESH.V.P, NARIKUNI VAYALIL,ELATHUR.P.O,PERUTHIRUTHI, KOZHIKODE.** **5 GOPI.C.K, GOPIKA HOUSE,THALAKKULATHUR.P.O,PURAKKATTIRI, KOZHIKODE.** - **6 VENUGOPALAN.P, ACHARAMBATH,PALATH.P.O,CHELANNUR,KOZHIKODE.** **7 DINESH MANI.U.V, AKSHARA,UPPINATH VAYANNUR,THALAKKULATHUR.P.O, KOZHIKODE.** - **8 PRASAD KUMAR.P.K, PANDARAKALATHIL,ERANHIKKAL.P.O,KOZHIKODE.** - **9 PUSHPAVALLY.P, THIRISSERY,THALAKKULATHUR,KOZHIKODE.** **10 SHYAMILI.V.P, PANDARAKALATHIL,ERANHIKKAL.P.O,ELATHUR, KOZHIKODE.** **BY ADVS.SRI.B.S.SWATHY KUMAR SMT.ANITHA RAVINDRAN SRI.HARISANKAR N UNNI SRI.O.A.ANJU SMT.P.S.BHAGYA SURABHI** ## **RESPONDENTS :** ## **------------** **1. THE STATE CO-OPERATIVE ELECTION COMMISSION CO-TOWERS,PALAYAM,THIRUVANANTHAPURAM-695003.** **WP(C).No. 23748 of 2018** **:2:** ## **2. THE RETURNING OFFICER,** - **THALAKKULATUR BHAVANA NIRAMANA SAHAKARANA SANGHAM** - **LTD.NO.(D)2297,THALAKKULATHUR,ERANHIKKAL.P.O,KOZHIKODE/ELATHUR UNIT INSPECTOR,OFFICE OF THE ASSISTANT REGISTRAR OF** - **CO-OPERATIVE SOCIETIES,KOZHIKODE,PIN-673001.** **3. THE ELECTORAL OFFICER,** - **THALAKKULATUR BHAVANA NIRAMANA SAHAKARANA SANGHAM** - **LTD.NO.(D)2297,THALAKKULATHUR,ERANHIKKAL.P.O,KOZHIKODE/ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,KOZHIKODE,PIN-673001.** ***ADDRESS OF R1 TO R3 AMENDED** - **R1. THE STATE CO-OPERATIVE ELECTION COMMISSION, CO-BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM- 695 033** - **R2. THE RETURNING OFFICER, THALAKKULATUR BHAVANA NIRMANA SAHAKARANA SANGHAM LTD.NO.(D)2297, THALAKKULATHUR,ERANHIKKAL.P.O, KOZHIKODE/ ELATHUR UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES, SAHAKARANA BHAVAN, PUTHIYARA, KOZHIKODE, PIN-673 004** - **R3. THE ELECTORAL OFFICER, THALAKKULATUR BHAVANA NIRAMANA SAHAKARANA SANGHAM LTD.NO.(D)2297, THALAKKULATHUR, ERANHIKKAL P.O, KOZHIKODE/ ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, SAHAKARA BHAVAN, PUTHIYARA, KOZHIKODE. PIN - 673 004** **CAUSE TITLE AMENDED BY INCORPORATING THE CORRECT ADDRESS OF R1 TO R3 AS PER ORDER DATED 17.07.2018 IN I.A.12843/2018.** **4. THALAKKULATUR BHAVANA NIRAMANA SAHAKARANA SANGHAM LTD.NO.(D)2297, THALAKKULATHUR,ERANHIKKAL.P.O,KOZHIKODE-673303, REPRESENTED BY ITS SECRETARY.** **R4 BY ADV. SRI.P.P.JACOB** **R BY SR.GOVERNMENT PLEADER SMT.C.S.SHEEJA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-072018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 23748 of 2018 (P)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS : -----------------------** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO.E(2)4285/2018/SCEC DATED 25.6.2018 EXHIBIT P2 TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 12.7.2018. EXHIBIT P3 TRUE COPY OF THE RELEVANT PORTION OF THE BYE-LAW OF THE 4TH RESPONDENT.** **RESPONDENTS' EXHIBITS : ------------------------** **EXHIBIT R4(a) TRUE PHOTOCOPY OF THE NOTIFICATION DATED 25.06.2018 ISSUED BY THE ELECTION COMMISSION EXHIBIT R4(b) TRUE PHOTOCOPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE JOINT REGISTRAR DATED 12.4.2016 EXHIBIT R4(c) TRUE PHOTOCOPY OF THE PAGE NO.1 OF THE BYELAW OF THE RESPONDENT EXTHIBIT R4(d) TRUE PHOTOCOPY OF THE CLAUSE 33A(6) OF THE BYELAW, PAGE NO.37 OF THE BYE-LAW** ## **/TRUE COPY/** **P.A TO JUDGE** **AV/26/7** ## **ANIL K.NARENDRAN, J.** **-----------------------------------------------** W.P.(C).No.23748 of 2018 **-----------------------------------------------** Dated this the 25[th] day of July, 2018 ## **J U D G M E N T** The petitioners, who are members of the 4[th] respondent Cooperative Society, have filed this writ petition under Article 226 of the Constitution of India, seeking a declaration that Clause 33A(6) of Ext.P3 bye-laws of the Society is ultra vires the provisions of the said bye-laws and therefore, legally unsustainable, inoperative and without any legal footing and that, Ext.P1 notification dated 26.06.2018 issued by the 1[st] respondent State Co-operative Election Commission is unsustainable and further that, Ext.P2 order dated 12.07.2018 of the 2[nd] respondent Returning Officer does not have any legal footing and therefore, liable to be quashed to the extent it relates to the petitioners, with a further direction to the 3[rd] respondent Electoral Officer to allow the petitioners to contest the election scheduled as per Ext.P1 notification. 2. On 18.07.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 3 and urgent notice on admission by special messenger was ordered to the 4[th] respondent. 3. A counter affidavit has been filed by the 4[th] respondent, opposing the reliefs sought for in this writ petition. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3 and also the learned counsel for the 4[th] respondent Society. W.P.(C)No.23748 of 2018 :-2-: 5. A reading of the reliefs sought for would show that in this writ petition filed under Article 226 of the Constitution of India, the petitioners are mainly challenging Ext.P2 order of the 2[nd] respondent Returning Officer rejecting their nominations submitted pursuant to Ext.P1 election notification. The term of office of the present managing committee of the 4[th] respondent Society will expire on 05.08.2018. Based on the resolution taken by the Society, the 1[st] respondent State Co-operative Election Commission issued Ext.P1 election notification. Pursuant to the said notification, the petitioners submitted their nominations, which were rejected by Ext.P2 order dated 12.07.2018 of the 2[nd] respondent, on the ground that, as per the amended bye-laws of the Society, i.e., Clause 33A(6) of Ext.P3 bye laws, a person who contests in the election should hold at least 10 shares, 60 days prior to the date of election. 6. If the petitioners are having any dispute in connection with the election to the Managing Committee of the 4[th] respondent Society, which is scheduled to be held on 29.07.2018, in terms of Ext.P1 election notification dated 25.06.2018 issued by the 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 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 to the Board of Management or any officer of the society shall also be W.P.(C)No.23748 of 2018 :-3-: 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. 7. 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 Cooperative 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 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 ## W.P.(C)No.23748 of 2018 :-4-: 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. 8. 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. ## 9. 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 W.P.(C)No.23748 of 2018 :-5-: 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. 10. Part IXB of the Constitution of India, inserted by the Constitution (97th 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 cooperative society shall vest in such an authority or body, as may 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. 11. 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 W.P.(C)No.23748 of 2018 :-6-: (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 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. 12. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, if the petitioners have any dispute in relation to the rejection of their nominations by the 2[nd] respondent Returning Officer, they will have to raise such dispute before the Cooperative Arbitration Court, by invoking the statutory remedy available under Section 69 of the Act, within 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. Therefore, this writ petition is liable to be dismissed, without prejudice to the right of the petitioners to raise any dispute arising in connection with the election before the Cooperative Arbitration Court, by invoking the statutory remedy available under Section 69 of the Act, within one month from the date of election. 13. In the result, for the reasons stated hereinbefore, this writ W.P.(C)No.23748 of 2018 :-7-: petition is dismissed; however, without prejudice to the right of the petitioners to raise any dispute arising in connection with the election conducted pursuant to Ext.P1 election notification issued by the State Cooperative Election Commission to the Managing Committee of the 4[th] respondent Society, before the Co-operative Arbitration Court, by invoking the statutory remedy available under Section 69 of the Act, within one month from the date of that election. 14. It is made clear that the observations, if any, made in this judgment touching the merits of the factual contentions raised by both sides are made for the 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 4[th] respondent Society, untrammelled by any such observations. No order as to costs. Sd/- **ANIL K.NARENDRAN JUDGE** AV/25/7