T.P. Aloshy v. State Co-operative Election Commission and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **WEDNESDAY,THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940** ## **WP(C).No. 1919 of 2019** ## **PETITIONER:** **T.P.ALOSHY AGED 52 YEARS THIRUTHALIL HOUSE, BISONVALLEY P.O., BISONVALLEY, IDUKKI. BY ADV. SRI.P.P.JACOB** ## **RESPONDENTS:** |**1**|**STATE CO-OPERATIVE ELECTION COMMISSION**| |---|---| ||**THIRUVANANTHAPURAM, 3RD FLOOR, CO-BANK TOWERS,**| ||**PALAYAM, VIKAS BHAVAN P.O.,**| ||**THIRUVANANTHAPURAM-695 033,**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**THE ELECTORAL OFFICER**| ||**POTTANKAD SERVICE CO-OPERATIVE BANK LTD.NO.165,**| ||**ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G),**| ||**NEDUMKANDAM, IDUKKI, OFFICE OF THE ASSISTANT**| ||**REGISTRAR OF CO-OPERATIVE SOCIETIES (G),**| ||**NEDUMKANDAM, IDUKKI-685 565.**| |**3**|**THE RETURNING OFFICER**| ||**POTTANKAD SERVICE CO-OPERATIVE BANK LTD.NO.165,**| ||**POTTANKAD, IDUKKI, UNIT INSPECTOR, OFFICE OF THE**| ||**ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G),**| ||**NEDUMKANDAM, IDUKKI-685 565.**| - **4 POTTANKAD SERVICE CO-OPERATIVE BANK LTD.NO.F 1241 POTTANKAD, IDUKKI-685 565, REPRESENTED BY ITS SECRETARY.** ## **SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.1919 of 2019** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is the member of the 4[th] respondent Bank, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 notification dated 3.12.2018 issued by the State Co-operative Election Commission, whereby the election to the Managing Committee of the said Society is scheduled to be held on 27.1.2019. The petitioner has also sought for a writ of mandamus commanding the 3[rd] respondent Returning Officer to put the votes of persons referred to in Ext.P3 representation in a separate box. 2. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for respondents 1 to 3. ## **W.P.(C)No.1919 of 2019** ## **:-3-:** 3. The pleadings and materials on record would show that election to the Managing Committee of the 4[th] respondent Society is scheduled to be held on 27.1.2019 in terms of Ext.P2 election notification dated 3.12.2018 issued by the 1[st] respondent State Co-operative Election Commission. In terms of the said notification, the preliminary voters list was published on 24.12.2018. Objections were called for from 11.00 a.m. on 24.12.2018 to 5.00 p.m. on 31.12.2018. After considering those objections on 1.1.2019 from 11.00 a.m. to 1.00 p.m., the final voters list was published on 3.1.2019. Thereafter, the nominations were submitted on 10.1.2019 between 11.00 a.m. to 1.00 p.m. After scrutiny of nominations on 11.1.2019, the list of valid nominations were published on 12.1.2019, after the time limit prescribed in the said notification for withdrawal of nominations. ## **W.P.(C)No.1919 of 2019** ## **:-4-:** 4. Going by the averments in the writ petition, the petitioner has submitted Ext.P3 objection before the 2[nd] respondent Electoral Officer pointing out that the persons included in the list enclosed along with that objections are persons who are not eligible to be members of the Society, since they are residing outside the area of operation of the Society. However, without taking into consideration Ext.P3 objection, the 2[nd] respondent Electoral Officer published the final voters list. 5. The relevant extract of the bye laws of the 4[th] respondent Society is placed on record as Ext.P1. Clause 5(a) of Ext.P1 bye laws, which deals with membership, reads thus; “5(എ) ബ�ങ�ന� പ�വര�ന �ര�ധ�യ�ല സ�രത�മസക�രര� 18 സ�രമ�യ� നത�ഴ�ല ന�യ�നവരര� ഭ�വ ടമയ ളവരര� ആയ വയസ�ന രമല പ��യമ ളവര %, സ&സബ ദ�യ ളവര മ�യ ആരക % ബ�ങ�ല അ%ഗമ�ക�വ നത�ണ. മര�ച�ര��യ അ%ഗ��ന� മമനറ കള�യ അവക�ശ�കളക % അ%ഗമ�ക�നമങ�ല % അവരക3 ## **W.P.(C)No.1919 of 2019** ## **:-5-:** ## .” രകകര��വ മ ര5ന മ�പതരമ വ�യ� നക�ട ക വ�ന ��ട ള8 A reading of the aforesaid clause would show that the place of residence is not the sole criteria for membership in the 4[th] respondent Society. 6. During the course of arguments, the learned Senior Government Pleader, on instructions from the 2[nd] respondent Electoral Officer, would submit that the objection made by the petitioner on 31.12.2018 which was acknowledged at 4.10 p.m. was accompanied by a list consisting of 224 persons. The learned Senior Government Pleader would also submit that no documents were produced along with Ext.P3 objection made by the petitioner in order to substantiate the contention that the persons included in the list are not eligible to be members of the Society. Per contra, the learned counsel for the petitioner would submit that the relevant extract of the voters list published by the Election Commission was produced along with Ext.P3 objection. ## **W.P.(C)No.1919 of 2019** ## **:-6-:** 7. If the petitioner is having any dispute in connection with the election to the Managing Committee of the 4[th] respondent Society, scheduled to be held on 27.1.2019 in terms of Ext.P2 notification dated 3.12.2018 issued by the 1[st] 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 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, the Board of Management or any Officer of the Society shall also be 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 ## **W.P.(C)No.1919 of 2019** ## **:-7-:** 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. The final voters list is one published by the 2[nd] respondent Electoral Officer in exercise of his powers under sub-rule (4) of Rule 35A of the Rules. If that be so, any dispute in relation to the final voters list published by the 2[nd] respondent Electoral Officer, in exercise of his powers under under sub-rule (4) of Rule 35A of the Rules, is a dispute arising in connection with that election, which can be raised before the Cooperative Arbitration Court constituted under Section 70A of the Act, by invoking the statutory remedy available under Section 69 of that Act, ## **W.P.(C)No.1919 of 2019** ## **:-8-:** 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 for the entire process of election beginning from the stage of preparation of the provisional voters' list, decision on the objection by the Collector, ## **W.P.(C)No.1919 of 2019** ## **:-9-:** 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 and getting an elected body to run the administration is frustrated. Therefore, all disputes with regard to election should be dealt ## **W.P.(C)No.1919 of 2019** ## **:-10-:** 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 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)** ## **W.P.(C)No.1919 of 2019** ## **:-11-:** **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 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 ## **W.P.(C)No.1919 of 2019** ## **:-12-:** 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 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 ## **W.P.(C)No.1919 of 2019** ## **:-13-:** 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 petitioner is having any dispute in relation to the election to the Managing Committee of the 4[th] respondent Society scheduled to be held on 27.1.2019 in terms of Ext.P2 notification issued by the 1[st] respondent State Cooperative Election Commission, he will have to raise such dispute before the Co-operative Arbitration Court by invoking the statutory remedy available under Section 69 of the Act, within a period of one month from the date of election and as such, he cannot approach this Court seeking ## **W.P.(C)No.1919 of 2019** ## **:-14-:** interference under Article 226 of the Constitution of India. In the result, this writ petition is dismissed, without prejudice to the right of the petitioner to raise any dispute arising in connection with the election to the Managing Committee of the 4[th] respondent Society, conducted in terms of Ext.P2 election notification issued by the 1[st] 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 Co-operative Arbitration Court shall proceed with any dispute raised by the petitioner under Section ## **W.P.(C)No.1919 of 2019** ## **:-15-:** 69 of the Act, in connection with the election to the Managing Committee of the 4[th] respondent Society, untrammelled by any such observations. Sd/- **ANIL K.NARENDRAN** **JUDGE** ami/23.1.19 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE BYELAW, PAGES 1,2 AND 3** **EXHIBIT P2** **TRUE PHOTOCOPY OF THE RELEVANT PORTION OF NOTIFICATION DATED 3.12.2018 VIDE G.O. NO.(2)9611/2018/SCEC WITH TYPED COPY.** **EXHIBIT P3 TRUE PHOTOCOPY OF THE REPRESENTATION DATED NIL ALONG WITH THE LIST OF MEMBERS.**