T. C. Sayed Mohammed S/O Kassim Bava and Others (5th petitioner Mundakayam Service Co-operative Bank Ltd.) v. Kerala State Co-operative Election Commission and The Electoral Officer, Kanjirappally

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 16TH DAY OF AUGUST 2018 / 25TH SRAVANA, 1940 WP(C).No. 15911 of 2018 ## **PETITIONER** 1 T.C. SAYED MOHAMMED S/O.KASSIM BAVA, MEMBER NO.13235, SALANI MANZIL CHELIKUZHI MUNDAKAYAM- 686513 2 C.J. SEBASTIAN S/O. ROCKY JOSEPH, MEMBER NO.7084, CHULLITHARA, R.P.C.P.O., VANDANPATHAL-686513 3 C.N. MOHANAN S/O. C.N. THANKAPPAN, MEMBER NO.14578, CHACKUMKUZHIYIL, PUNCHAVAYAL.P.O.-686513 4 P.K.PURUSHAN S/O. KUNJAN, MEMBER NO.9703, PALOOR, YENDAYAR MUNDAKKAYAM- 686513 5 MUNDAKAYAM SERVICE CO-OPERATIVE BANK LTD. NO.K.122 MUNDAKAYAM, KOTTAYAM DISTRICT- 686513 REPRESENTED BY ITS SECRETARY BY ADVS.SRI.P.RAVINDRAN (SR.) SRI.P.DEEPAK SRI.SREEDHAR RAVINDRAN ## **RESPONDENTS:** 1. KERALA STATE CO-OPERATIVE ELECTION COMMISSION OFFICE OF THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, CO BANK TOWER, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, PIN- 695001 2. THE ELECTORAL OFFICER/ ASSISTANT REGISTRAR (GENERAL) KANJIRAPPALLY- 686 507 BY SPL. GOVERNMENT PLEADER SHRI K.S.MOHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.06.2018,ALONG WITH WPC 16220/2018, THE COURT ON 16.08.2018, DELIVERED THE FOLLOWING: W.P.(C)Nos.15911 & 16220/18 -2- ## **ANIL K. NARENDRAN, J.** **----------------------------------------------W.P.(C)Nos.15911 & 16220 of 2018 -----------------------------------------------DATED THIS THE 16[th] DAY OF AUGUST, 2018** ## **JUDGMENT** Petitioners 1 to 4 in these writ petitions are members of the Board of Directors of the 5[th] petitioner Co-operative Society, namely, Mundakayam Service Co-operative Bank Ltd. No.K.122, which is a Co-operative Society registered under the Kerala Cooperative Societies Act, 1969 (for brevity, 'the Act'). The petitioners have approached this Court in W.P.(C)No. 15911 of 2018 seeking a writ of mandamus commanding the 2[nd] respondent Assistant Registrar, who is the Electoral Officer, to publish the preliminary voters list forthwith, in accordance with sub-rule (4) of Rule 35A of Kerala Co-operative Societies Rules, 1969 (for brevity, 'the Rules') and a writ of mandamus commanding the 1[st] respondent State Co-operative Election Commission to reschedule the election process from the stage of publication of preliminary voters list and complete the same within the time stipulated in Ext.P6 election notification dated 03.05.2018. On 15.05.2018, when W.P.(C)No.15911 of 2018 W.P.(C)Nos.15911 & 16220/18 -3- came up for admission, this Court issued notice before admission to the respondents. 2. During the pendency of W.P.(C)No.15911 of 2018, the 1[st] respondent Co-operative Election Commission issued Ext.P11 order dated 08.05.2018 canceling Ext.P6 election notification dated 03.05.2018. Feeling aggrieved, the petitioners have filed W.P.(C)No.16220 of 2018 seeking a writ of certiorari to quash Ext.P11 proceeding dated 08.05.2018 of the 1[st] respondent Cooperative Election commission and seeking a writ of mandamus commanding the said respondent to reschedule the process of election from the stage of publication of preliminary voters list and to complete the same within the time stipulated in Ext.P6 election notification dated 03.05.2018. 3. Heard the learned Senior Counsel for the petitioners in these writ petitions and also the learned Special Government Pleader appearing for the respondents. On 14.06.2018, this Court passed an interim order directing the Joint Registrar of Cooperative Societies, the 3[rd] respondent in W.P.(C)No.16220 of 2018 to appoint a three member Administrative Committee from the members of the present Managing Committee of the 5[th] W.P.(C)Nos.15911 & 16220/18 -4- petitioner Society and the said respondent was directed to issue necessary order on 16.06.2018 itself. Such an order was passed taking note of the fact that the term of the present Managing Committee of the 5[th] petitioner Society will expire on 16.06.2018. In the said order, it was made clear that the Administrative Committee shall manage the day-to-day affairs of the 5[th] petitioner Society. However, they shall not take any policy decision or make any appointment or enroll any new members. Since common issues are raised in both the writ petitions, they were heard together and are being disposed of by this common judgment. For the sake of convenience, the parties and exhibits are referred to in this judgment, unless otherwise specifically mentioned, as obtaining in W.P.(C)No.16220 of 2018. 4. As the term of the Board of Directors of the 5[th] petitioner Society is to expire on 16.06.2018, its Board of Directors, which met on 24.03.2018 passed Ext.P1 resolution to hold election on 24.03.2018. By another resolution dated 24.03.2018, i.e., Ext.P2 resolution, it was decided to request the 1[st] respondent Co-operative Election Commission to appoint Electoral Officer as well as Returning Officer for the conduct of W.P.(C)Nos.15911 & 16220/18 -5- election. Exts.P1 and P2 resolutions were forwarded to the 1[st] respondent, vide Ext.P4 covering letter dated 24.03.2018, through the 3[rd] respondent Joint Registrar, which were received on 31.03.2018. Pursuant to the said resolution, the 1[st] respondent issued Ext.P5 order and Ext.P6 election notification dated 02.05.2018. The date for election fixed in Ext.P6 notification was 10.06.2018. 5. According to the petitioners, copy of Ext.P5 order and Ext.P6 election notification were served on the Secretary of the Society by 4.00 pm on 03.05.2018. As per Ext.P6 election notification draft voters list has to be published by the 2[nd] respondent Electoral Officer at 11.00 am on 05.05.2018. Because of certain technical snag in the computer system, the voters list approved by the Board of Directors, which consists of more than 15000 members could be furnished to the 2[nd] respondent only by 2.00 pm on 05.05.2018. Ext.P7 is true copy of the decision of the Board of Directors approving the voters list. The petitioners would contend that, the delay of 3 hours in submitting the approved voters list to the 2[nd] respondent is of no legal consequence, since sub-rule (4) Rule 35A of the Rules speaks W.P.(C)Nos.15911 & 16220/18 -6- about a time gap of 35 days between submission of approved voters list to the Electoral Officer and the date fixed for election. However, the 2[nd] respondent, instead of publishing the preliminary voters list, issued Ext.P8 communication dated 05.05.2018, whereby the Secretary of the Society was informed that non-submission of approved voters list to the Electoral Officer, before 11.00 am on 05.05.2018, is a serious lapse, in view of the provisions under sub-rule (4) Rule 35A, which will be reported to the 1[st] respondent. On receipt of Ext.P8, the Secretary of the Society submitted Ext.P9 reply dated 07.05.2018, explaining the circumstances resulting in delay in submission of the approved voters list. Ext.P9 reply was followed by Ext.P10 representation dated 07.05.2018 submitted before the 1[st] respondent. Thereafter, the petitioners filed W.P.(C)No.15911 of 2018 seeking a writ of mandamus commanding the 2[nd] respondent to publish the preliminary voters list forthwith, in accordance with sub-rule (4) of Rule 35A of the Rules. They have also sought for a writ of mandamus commanding the 1[st] respondent to reschedule the election process from the stage of publication of the preliminary voters W.P.(C)Nos.15911 & 16220/18 -7- list and complete the same within the time stipulated in Ext.P6 election notification. During the pendency of that writ petition, the 1[st] respondent issued Ext.P11 notification cancelling Ext.P6 election notification on account of the default committed by the Secretary of the Society in submitting the approved voters list to the 2[nd] respondent Electoral Officer, in terms of the said election notification. Feeling aggrieved, the petitioners filed W.P. (C)No.16220 of 2018 seeking a writ of certiorari to quash Ext.P11 proceeding dated 08.05.2018 of the 1[st] respondent and seeking a writ of mandamus commanding the said respondent to reschedule the process of election from the stage of publication of preliminary voters list and to complete the same within the time stipulated in the Ext.P6 election notification dated 03.05.2018. 6. The learned Senior Counsel for the petitioners would contend that the procedure adopted by the 1[st] respondent in canceling the election to the Managing Committee of the 5[th] petitioner Society, by Ext.P11 notification dated 08.05.2018, is per se illegal and contrary to the provisions under sub-rule (4) of Rule 35A of the Rules and as such, the interference of this Court W.P.(C)Nos.15911 & 16220/18 -8- under Article 226 of the Constitution of India is warranted. 7. Per contra, the learned Special Government Pleader would contend that the action of the 1[st] respondent in canceling the election to the Managing Committee of the Society by Ext.P11 notification, on account of the default committed by the Secretary of the Society in submitting the approved voters list to the 2[nd] respondent Electoral Officer, in terms of Ext.P6 election notification, is perfectly legal, which warrants no interference under Article 226 of the Constitution of India. 8. Sub-rule (4) of Rule 35A of the Rules requires submission of the approved voters by the Secretary of the 5[th] petitioner Society to the 2[nd] respondent Electoral Officer, 35 days prior to the date fixed for election. In Ext.P6 election notification, the date of publication of preliminary voters list in the notice board of the Society was fixed as 05.05.2018 at 11.00 am. The date fixed in the said notification for publication of preliminary voters list is within the statutory requirement of 35 days prior to the date fixed for election. 9. Admittedly, Ext.P5 order and Exrt.P6 election notification were served on the Secretary of the Society on W.P.(C)Nos.15911 & 16220/18 -9- 03.05.2018 at 4.00 pm. However, the Secretary could not submit the approved voters list to the 2[nd] respondent Electoral Officer till the time fixed in Ext.P6 election notification for publication of preliminary voters list, i.e., till 11.00 am on 05.05.2018. The said facts are admitted in paragraph 4 of the writ petition. The document marked as Ext.P7, which is one dated 03.05.2018, would show that the Board of Directors of the Society approved the voters list vide decision No.DB 2/2018-19 dated 30.04.2018. Going by the averments in paragraph 4 of the writ petition, the Secretary got the voters list approved by the Board of Directors on 05.05.2018 and produced the same before the 2[nd] respondent by 2.00 pm on 05.05.2018. 10. As per sub-rule (4) of Rule 35A of the Rules, it shall be the duty of the Chief Executive of the concerned society to prepare and update the voters list as per rules and submit voters list duly approved by the committee, to the Electoral Officer within 35 days prior to the date fixed for election and render all assistance required by the Electoral Officer. As per sub-rule (4), the Electoral Officer has to publish the preliminary voters list in Form No.34 in the notice board of the head office and branches, W.P.(C)Nos.15911 & 16220/18 -10- if any, of the society and call for objections, if any, on the voters list within 7 days of publication and publish the final voters list in Form No.35 within 20 days prior to the date fixed for the poll. The final voters list so prepared should be published in the head office and branches of the concerned society, a copy of which shall be supplied to by the society to any members on payment of fees, as may be prescribed by the society. 11. Relying on the judgment of this Court in **Valsaraj v. Joint Registrar (1984 KLT 628)** , the learned Senior Counsel for the petitioners would contend that the electoral process once interrupted has to be continued from the stage at which it was left off and as such, the 2[nd] respondent Electoral Officer may be directed to publish the preliminary voters list and complete the election process within a specified time, by setting aside Ext.P11 notification dated 08.05.2018 of the 1[st] respondent Co-operative Election Commission, whereby Ext.P6 election notification dated 03.05.2018 stands cancelled. 12. A reading of the judgment of this Court in **Valsaraj's case (supra)** would show that the law laid down in that judgment is that the electoral process once interrupted has to be W.P.(C)Nos.15911 & 16220/18 -11- continued from the stage at which it was left off, which alone will be an effective disincentive to manipulation of the electoral process; otherwise, any manipulation by extraneous agencies can effectively subvert the internal democracy of co-operative institutions by interference in the due course of election of these institutions of utmost importance in our constitutional system. The principle laid down in the said judgment cannot be extended to the facts of the instant case, where, the process of election to the managing committee of the 5[th] petitioner Society stands cancelled due to non-submission of approved voters list to the 2[nd] respondent Electoral Officer, within the time limit specified in Ext.P6 election notification. It is pertinent to note that in **Valsaraj's case (supra)** , this Court was dealing with a case in which polling alone was deferred. On the other hand, in the instant case, even the publication of the preliminary voters list could not be done by the Electoral Officer. 13. In **Madhavan Namboothiri v. Kammaran (1992 (2) KLT 567)** a Division Bench of this Court held that when polling is stopped under clause (p) of sub-rule (3) of Rule 35 of the Rules, the election process can be continued from the stage W.P.(C)Nos.15911 & 16220/18 -12- at which it was stopped. If the election process is adjourned under sub-clause (v) of clause (e) of sub-rule (3) of Rule 35, then also the proceedings can be continued from the stage at which it was stopped. In that case, the Division Bench was dealing with a case in which though everything was ready for the election, on the date of election, i.e., on 14.06.1992, the Returning Officer did not turn up to conduct the polling. 14. In the instant case, the fact that the voters list approved by the Board of Directors of the 5[th] petitioner Society could be submitted before the 2[nd] respondent Electoral Officer by the Secretary of the Society, only after the time specified in Ext.P6 election notification for publication of preliminary voter's list, i.e., after 11.00 am on 05.05.2018 is not in dispute. If that be so, it cannot be said that the process of election was interrupted on account of any illegal acts on the part of the Electoral Officer or the Election Commission. Since the 2[nd] respondent Electoral Officer could not publish the preliminary voters list, in terms of Ext.P6 election notification, the 1[st] respondent Election Commission issued Ext.P11 notification cancelling the election notified as per Ext.P6. The reasoning of W.P.(C)Nos.15911 & 16220/18 -13- the 1[st] respondent in Ext.P11 for cancelling the election to the managing committee of the 5[th] petitioner Society is perfectly legal, which warrants no interference by this Court in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. 15. Now, pursuant to the order of this Court dated 14.06.2018, the 3[rd] respondent Joint Registrar has appointed a three member Administrative Committee from the members of the elected Managing Committee of the 5[th] petitioner Society, which is managing the day-to-day affairs of the Society, subject to the conditions stipulated in that order. Therefore, it is for the Administrative Committee appointed in terms of the interim order of this Court dated 14.06.2018 to take a decision to conduct election to the Managing Committee of the Society, in accordance with law and to forward the same to the 1[st] respondent Election Commission, through proper channel. 16. Such exercise shall be undertaken by the Administrative Committee within one month from the date of receipt of a certified copy of this judgment and based on the decision so taken, the 1[st] respondent Election Commission shall W.P.(C)Nos.15911 & 16220/18 -14- issue election notification within one month thereafter. Till the process of election is over, the Administrative Committee appointed pursuant to the interim order of this Court dated 14.06.2018 shall manage the day-to-day affairs of the Society, subject to the conditions stipulated in that order. Sd/- **ANIL K. NARENDRAN, JUDGE** RR/dsn W.P.(C)Nos.15911 & 16220/18 -15- WP(C).No. 15911 of 2018 (L) APPENDIX PETITIONER(S)' EXHIBITS EXHIBIT P1 TRUE COPY OF THE RESOLUTION DATED 24.3.2018 EXHIBIT P2 TRUE COPY OF THE DECISION DATED 24.3.2018 EXHIBIT P3 TRUE COPY OF THE REQUEST SUBMITTED THROUGH THE JOINT REGISTRAR DATED 24.3.2018 EXHIBIT P4 TRUE COPY OF THE COVERING LETTER ADDRESSED TO THE ASSISTANT REGISTRAR DATED 31.3.2018 EXHIBIT P5 TRUE COPY OF THE DECISION OF THE 1ST RESPONDENT DATED 3.5.2018 EXHIBIT P6 TRUE COPY OF THE NOTIFICATION DATED 3.5.18 EXHIBIT P7 TRUE COPY OF THE DECISION DATED 3.5.18 EXHIBIT P8 TRUE COPY OF THE COMMUNICATION OF THE 2ND RESPONDENT DATED 5.5.18 EXHIBIT P9 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 7.5.18 EXHIBIT P10 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT DATED 7.5.18 RESPONDENTS' EXTS: NIL TRUE COPY P.S. TO JUDGE dsn