The Sulthan Bathery Co-operative Agricultural and Rural Development Bank Ltd. v. Jayaprakash P.R. and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS THURSDAY, THE 12TH DAY OF JUNE 2014/22ND JYAISHTA, 1936 WA.No. 450 of 2014 () IN WP(C).15038/2012 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 15038/2012 of HIGH COURT OF KERALA DATED 06-01-2014 APPELLANT(S)/4TH RESPONDENT : -------------------------------------------------------- THE SULTHAN BATHERY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. W-225, SULTHAN BATHERY, WAYANAD REPRESENTED BY ITS SPECIAL OFFICER, PIN-673 592. BY ADV. SRI.GEORGE POONTHOTTAM ## RESPONDENT(S)/PETITIONERS AND RESPONDENTS 1 TO 3 AND 5: -------------------------------------------------------------------------------------------------- 1. JAYAPRAKASH P.R. MEMBER NO.A-358 THE SULTHAN BATHERY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.W-225 RESIDING AT KALATHIL HOUSE, MOOLANKAVU P.O. SULTHAN BATHERY, WAYANAD. 2. KERALA STATE CO-OPERATIVE ELECTION COMMISSION OFFICE OF THE STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM-695 001. 3. ELECTORAL OFFICER (ASSISTANT REGISTRAR (GENERAL) OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES SULTHAN BATHERY, WAYANAD), PIN-673 592. 4. THE RETURNING OFFICER APPOINTED FOR THE CONDUCT OF ELECTION TO THE MANAGING COMMITTEE OF SULTHAN BATHERY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.W-225. (UNIT INSPECTOR OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES SULTHAN BATHERY, WAYANAD-673 592. R1 BY ADV. SRI.P.C.SASIDHARAN R2 TO R4 BY SR.GOVT PLEADER SRI.P.M.SANEER THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12-06-2014, ALONG WITH WA. 451/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. ANTONY DOMINIC & ALEXANDER THOMAS, JJ. ----------------------------------W.A.Nos.450 & 451 of 2014 ----------------------------------Dated this the 12[th] day of June, 2014 ## JUDGMENT ## Antony Dominic, J. 1. These writ appeals are filed by the 4[th] respondent in W.P(C).Nos.15038/12 and 15676/12, which were disposed of by a common judgment. - 2.The writ petitions were filed by the first respondent herein challenging an election notification issued by the Returning Officer for election to the Board of Directors of the appellant society on various grounds. It is stated that proceedings pursuant to the election notification were stayed by an interim passed by this Court in W.P(C). 15676/12. Subsequently, the stay order was vacated by order dated 9.7.2012. Accordingly, election was held, results were declared on 22.7.2012 and the committee assumed office also. - 3.In the mean time, the first respondent in W.A.451/14 filed W.A.1459/12 against the order dated 9.7.2012 vacating the stay. That appeal was disposed of by WA.450/14 & 451/12 2 judgment dated 13.8.2012, directing disposal of the writ petition and also clarifying that by virtue of the order passed by the learned single Judge in I.A.9582/12, the result of the election would be subject to the result of the writ petition and that in such circumstances, the managing committee shall not take policy decisions. 4.The writ petitions were finally heard on 6.1.2013 and considering the nature of the controversy involved, learned Judge found it appropriate to relegate the petitioners therein to pursue their remedies in an election petition under section 69 of the Kerala Cooperative Societies Act, 1969 (hereinafter, the 'Act', for short). Accordingly, the learned Judge passed the following order : “3. In the circumstances of the submissions made by both the counsel, the writ petitions are disposed of without any finding on merits and relegating the petitioners to the appropriate remedies under the Kerala Co-operative Societies Act (for short 'the KCS Act') to challenge the election so conducted. The results of the election held on 22.07.2012 and published provisionally is directed to be declared. Such declaration shall not be taken as this Court having held the process of WA.450/14 & 451/12 3 election to be valid since the same is to be decided in an election petition, if any filed. It is made clear that the limitation as per the KCS Act for filing the Election Petition, shall commence only from today on which date the election conducted on 22.07.2012, has reached finality.” Appellants in these appeals are aggrieved by the direction of the learned single Judge that the limitation for the purpose of the petition under section 69 shall commence only from the date of the judgment. 5.Learned counsel for the appellants contended that as per section 69(3) of the Act, no dispute arising in connection with the election to the Board of Management or an officer of the society shall be entertained by the Co-operative Arbitration Court unless it is referred to it within one month from the date of the election. Counsel argued that when the statute prohibited a Co-operative Arbitration Court from entertaining a dispute in relation to an election to the Board of Directors of a society unless it is referred to it within one month of the date of the election and as the provisions of the WA.450/14 & 451/12 4 Limitation Act are inapplicable to such proceedings, learned single Judge acted without jurisdiction in ordering that in respect of the election that was held on 22.7.2012, the limitation would start only from the date of the judgment. In support of this contention, learned counsel also made reference to the judgment of the Apex Court in Commissioner of Customs and Central Excise v. Hongo India Pvt. Ltd. [(2009) 5 SCC 791] rendered in the context of the Central Excise and Salt Act, where, it has been held that since on an examination of the relevant provisions of the Central Excise Act, it was clear that the provisions of the Limitation Act are necessarily excluded, the benefits conferred under the Limitation Act cannot be called in aid to supplement the provisions of the Central Excise Act. 6. Learned counsel appearing for the first respondent, the writ petitioners, however contended that the learned Judge was fully within his power in passing the impugned judgment. WA.450/14 & 451/12 5 - 7.We have considered the rival submissions made. It is true that section 69(3) of the Act prohibits the Cooperative Arbitration Court from entertaining disputes concerning election to the Board of Directors of a society unless the same is referred to it within one month from the date of the election. In so far as this case is concerned, the writ petitions were filed soon after the election notification was published in June, 2012 and the proceedings pursuant to the notification were stayed by this Court. Though the stay was vacated by order dated 9.7.2012, in the order in I.A.9582/12 in W.P (C).15676/12, this Court clarified that results of the election would be subject to the result of the writ petition. That was re-iterated by the Division Bench while disposing of W.A.1459/12. - 8.Going by the pleadings, the election was conducted on 22.7.2012. Though the results were declared on that day itself and the Board of Directors assumed office immediately thereafter, the uncertainty created on account of the order passed by this Court in IA.9582/12 in W.P(C).15676/12 continued until the WA.450/14 & 451/12 6 writ petitions were disposed of by the impugned judgment rendered on 6.1.2014. In that judgment, instead of resolving the issue on merits, considering the nature of the dispute involved, learned Judge found it appropriate to relegate the petitioners therein to pursue the statutory remedy available under section 69 of the Act. - 9.By this time, in view of section 69(3) of the Act, the remedy under section 69 had become time barred and could not have been availed. In such a situation, unless the learned Judge had also passed further directions enabling the writ petitioners to seek such remedies, the writ issued would have been a futile one. It was therefore that the learned single Judge directed that the period of limitation provided under section 69(3) of the Act would start to run from the date of judgment. - 10.In so far as the contention of the learned counsel for the appellants that such a direction is beyond the powers of this Court is concerned, we should state that it will always be the endeavour of this WA.450/14 & 451/12 7 Court to ensure that the writ issued is not a futile one. Therefore, it is well within the powers of this Court exercising jurisdiction under Article 226 of the constitution of India to pass such orders, but for which, the order passed by the learned single Judge relegating the writ petitioners to pursue statutory remedy would have been a futile one. For these reasons, we cannot accept the contention of the learned counsel for the appellants that the learned Judge has acted in excess of jurisdiction in passing the judgment. We also note that the competence of this Court to pass such orders has been upheld by the Apex Court itself in its judgment in Grindlays Bank Ltd. v. Income-tax Officer, Calcutta and others [AIR 1980 SC 656] which has been followed by a learned single Judge of this Court in P.B.Prakasini v. KPSC [1993 (1) KLJ 632]. - 11.In the judgment in Commissioner of Customs and Central Excise (supra) relied on by the learned counsel for the appellants, the question whether the High Court was entitled to pass orders as done in this case, did not arise for consideration. Instead, WA.450/14 & 451/12 8 what has been laid down is that when Limitation Act is excluded, the beneficial provisions of the Act as such cannot be called in aid to grant relief provided under the Limitation Act. In our view, that principle has no relevance in so far as the facts of this case are concerned. In the aforesaid circumstances, do not find any illegality in the directions issued by the learned single Judge. The appeals are devoid of merits and are accordingly dismissed. No costs. Sd/ANTONY DOMINIC, Judge. Sd/ALEXANDER THOMAS, Judge. kkb. /TRUE COPY/ PS TO JUDGE