Vani P v. State Co-operative Election Commission & others; R. Reghunathan 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 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940** **WP(C).No. 18444 of 2018** ## **PETITIONER:** **VANI P MEMBER NO.22843, PULAPARAMBIL HOUSE, P.O. PANANGAD, KODUNGALLUR, THRISSUR. BY ADV. SRI.P.N.MOHANAN** ## **RESPONDENTS:** **1 THE STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ELECTION COMMISSIONER, THIRUVANANTHAPURAM, 3RD FLOOR, CO-BANK TOWERS, PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033.** **2 RETURNING OFFICER TO POOVATHUMKADAVU FARMERS SERVICE CO-OPERATIVE BANK KODUNGALLUR UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KODUNGALLUR, THRISSUR-680665.** **3 ELECTORAL OFFICER TO THE POOVATHUMKADAVU FARMERS SERVICE CO-OPERATIVE BANK OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KODUNGALLUR, THRISSUR-680665.** **4 POOVATHUMKADAVU FARMERS SERVICE CO-OPERATIVE BANK LTD. NO.4686 REPRESENTED BY SECRETARY, PANANGAD P.0., KODUNGALLUR-680665.** W.P.(C) Nos.18444/2018 & 19852/2018 2 **5. ADDITIONAL R5 IMPLEADED : SEENA SELVARAJ, AGED 48 YEARS W/O.SELVARAJ, RESIDING AT THODATHRA HOUSE PANGAD VILLAGE, KODUNGALLUR TALUK THRISSUR DISTRICT, PIN 680 665. AS PER ORDER DATED7.6.2018 IN I.A.NO.9909/2018** **6. ADDITIONAL R6 IMPLEADED : KRISHNAKUMAR S/O.VADASSERY SUKUMARAN MATHILAKOM P.O., PAPPINIVATTOM VILLAGE THRISSUR DISTRICT. AS PER ORDER DATED7.6.2018 IN I.A.NO.9911/2018** **7. ADDITIONAL R7 IMPLEADED :** **T.K.RAMESH BABU S/O.T.K.KUMARAN, AGED 50 YEARS RESIDING AT THEKKOOT KARAYIL HOUSE. PANANGAD POST, KODUNGALLUR, THRISSUR DISTRICT. AS PER ORDER DATED7.6.2018 IN I.A.NO.9939/2018** **BY ADVS. SRI.JAIBY PAUL SMT.K.SINDHU ELIAS SMT.P.PARVATHY SMT.SURYA P SHAJI SRI.ANEESH JAMES SRI.BENOJ C AUGUSTIN SRI.JIJO THOMAS SRI.K.C.ELDHO SRI.MALLENATHAN.M. SRI.NAGARAJ NARAYANAN SRI.P.C.SASIDHARAN SRI.RAFEEK. V.K. SRI.SAIJO HASSAN SRI.T.A.SHAJI (SR.) SRI.U.M.HASSAN SRI.VISHNU BHUVANENDRAN** **SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2018, ALONG WITH WP(C).19852/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.18444/2018 & 19852/2018 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018/21ST BHADRA, 1940** ## **WP(C).No. 19852 of 2018** **PETITIONER:** **R.REGHUNATHAN RAMANEZHUTH HOUSE, P.O.PANANGAD - 680 665, THRISSUR. BY ADV. SRI.P.N.MOHANAN** ## **RESPONDENTS:** - **1 THE STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ELECTION COMMISSIONER, THIRUVANANTHPAURAM, 3RD FLOOR, CO-BANK TOWERS,PALAYAM, VIKAS BHAVAN P.O.,THIRUVANANTHAPURAM - 695 033.** - **2 RETURNING OFFICER TO POOVATHUMKADAVU FARMERS SERVICE CO-OPERATIVE BANK,KODUNGALLUR UNIT INSPECTOR,OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), KODUNGALLUR, THRISSUR 680 665.** - **3 ELECTORAL OFFICER TO THE POOVATHUMKADAVU FARMERS SERVICE CO-OPERATIVE BANK,OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G),KODUNGALLUR, THRISSUR 680 665.** - **4 POOVATHUMKADAVU FARMERS SERVICE CO-OPERATIVE BANK LTD NO.4686, REPRESENTED BY SECRETARY,PANANGAD P.O.,KODUNGALLUR - 680 665.** **BY SR.GOVERNMENT PLEADER SMT.C.S.SHEEJA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.09.2018, ALONG WITH WP(C)No.18444/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.18444/2018 & 19852/2018 4 ## **JUDGMENT** W.P.(C) Nos.18444 of 2018 :- The petitioner, who is a member of the fourth respondent Service Cooperative 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 writ of mandamus commanding the second respondent Returning Officer not to show the name of Mr.Narayanankutty, who passed away on 31.5.2018, in the ballot paper to be used in the election to the Managing Committee of the said Society scheduled to be held on 10.6.2018. The petitioner has also sought for a declaration that the second respondent Returning Officer cannot show the name of Mr.Narayanankutty, who passed away before the election scheduled to be held on 10.6.2018, in the ballot paper. 2. The interim relief sought for in this Writ Petition is an order directing the second respondent Returning Officer not to show the name W.P.(C) Nos.18444/2018 & 19852/2018 5 of Mr.Narayankutty in the ballot paper, who passed away on 31.5.2018, which is going to be used in the election scheduled to be held on 10.6.2018. The said interim relief was declined by the order dated 7.9.2018, which reads thus : “In the light of the provisions contained in Rule 35A of the Kerala Co-operative Societies Act, I am of the opinion that the interim order sought for by the petitioner cannot be granted. The election shall go on as scheduled on 10.6.2018.” 3. A counter affidavit has been filed by the third respondent Electoral Officer opposing the relief sought for in this Writ Petition. The additional fifth respondent has also filed a counter affidavit on 18.6.2018 opposing the reliefs sought for in this Writ Petition, wherein it is contended that in view of the provisions under Section 69 of the Kerala Co-operative Societies Act, this Writ Petition under Article 226 of the Constitution of India cannot be entertained. The respondents have also raised W.P.(C) Nos.18444/2018 & 19852/2018 6 various contentions touching the merits of the issues raised in this Writ Petition. W.P.(C) No.19852 of 2018:- The petitioner, who is another member of the fourth respondent Service Co-operative Bank has filed this Writ Petition on 14.6.2018, seeking a writ of mandamus commanding the second respondent Returning Officer to declare him as elected to the Managing Committee of the fourth respondent Bank, from the General Ward, in the election held on 10.6.2018, constituted under Section 28 of the Kerala Co-operative Societies Act. The petitioner has also sought for other consequential reliefs. 4. A counter affidavit has been filed on behalf of the third respondent Electoral Officer on 17.8.2018 opposing the reliefs sought for in this Writ Petition, raising inter alia the contentions regarding maintainability, in view of the provisions under Section 69 of the Kerala Co- operative Societies Act. 5. Heard the learned counsel for the W.P.(C) Nos.18444/2018 & 19852/2018 7 petitioner in the respective Writ Petitions, i.e., W.P.(C) Nos.18444 and 19852 of 2018, the learned Special Government Pleader appearing for respondents 1 to 3, the learned counsel for the fourth respondent Service Co-operative Bank and also the learned counsel for the party respondents. 6. The sole issue that arises for consideration in these Writ Petitions is whether an interference is warranted in the process of election conducted to the Managing Committee of the fourth respondent Bank, in terms of Exhibit-P1 election notification dated 3.4.2018 issued by the first respondent State Co-operative Election Commission, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 7. In W.P.(C) No.18444 of 2018 filed on 5.6.2018, this Court by order dated 7.6.2018 declined interim relief sought for against the election scheduled on 10.6.2018. In the said Writ W.P.(C) Nos.18444/2018 & 19852/2018 8 Petition, the additional fifth respondent has filed a counter affidavit on 18.6.2018, after serving a copy to the learned counsel for the petitioner, wherein it is contended that the Writ Petition filed under Article 226 of the Constitution of India is not maintainable in view of the statutory remedy available under Section 69 of the Kerala Co-operative Societies Act. In W.P. (C) No.19852 of 2018 filed on 14.6.2018, through the very same counsel, the third respondent Electoral Officer has filed a counter affidavit raising the question of maintainability. 8. If the petitioners in these Writ Petitions were having any dispute in connection with the election to the Managing Committee of the fourth respondent Bank, which was held on 10.6.2018, in terms of Ext.P1 election notification dated 3.4.2018 issued - by the first respondent State Co operative Election Commission, such dispute should have been raised - before the Co operative Arbitration Court constituted under Section 70A of the Act, by invoking the W.P.(C) Nos.18444/2018 & 19852/2018 9 statutory remedy available under Section 69 of that Act, within one month from the date of election, i.e., - one month from 10.6.2018. 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 deemed to be a dispute for the purpose of subsection (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. 9. 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 Co-operative Societies Elections to Committees Rules, 1971, the Apex Court W.P.(C) Nos.18444/2018 & 19852/2018 10 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. 10. 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 W.P.(C) Nos.18444/2018 & 19852/2018 11 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. 11. 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** W.P.(C) Nos.18444/2018 & 19852/2018 12 **[(2000) 8 SCC 216]** should apply fortiori when an alternate remedy well exists under the Kerala Cooperative Societies Act, 1969 to question the process of election to a Society registered. 12. 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. 13. 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 W.P.(C) Nos.18444/2018 & 19852/2018 13 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 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. 14. In such circumstances, no interference is warranted in the process of election conducted pursuant to Ext.P1 election notification, in exercise of the writ jurisdiction under Article 226 of the Constitution of India. In the result, these Writ W.P.(C) Nos.18444/2018 & 19852/2018 14 Petitions fail and they are accordingly dismissed. It is made clear that this Court has not expressed anything on the merits of the rival contentions. Sd/- **ANIL K. NARENDRAN** **JUDGE** csl W.P.(C) Nos.18444/2018 & 19852/2018 15 ## **APPENDIX** ## **W.P.(C) Nos.18444/2018** ## **PETITIONER'S EXHIBITS :** **EXT.P1: A TRUE COPY OF THE ELECTION NOTIFICATION DATED 3.4.2018 PUBLISHED IN MATHRUMBHUMI DAILY.** **EXT.P2: A TRUE COPY OF THE PETITION DATED 2.6.2018 SUBMITTED BY THE PETITIONER BEFORE THE FIRST AND SECOND RESPONDENTS.** - **EXT.P3 : A TRUE COPY OF THE PETITION DATED 4.6.2018 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.** **EXT.P4: A TRUE COPY OF THE ORDER DATED 19.6.2018 IN W.P. (C) NO.18444/2018** **EXT.P5: A TRUE COPY OF THE TABULATION SHEET OF THE RESULT PUBLISHED BY THE RETURNING OFFICER.** W.P.(C) Nos.18444/2018 & 19852/2018 16 ## **W.P.(C) No.19852/2018** ## **PETITIONER'S EXHIBITS :** - **EXT.P1: A TRUE COPY OF THE ELECTION NOTIFICATION DATED 3.4.2018 PUBLISHED IN MATHRUMBHUMI DAILY.** - **EXT.P2: A TRUE COPY OF THE PETITION DATED 2.6.2018 SUBMITTED BY THE PETITIONER BEFORE THE FIRST AND SECOND RESPONDENTS.** - **EXT.P3 : A TRUE COPY OF THE PETITION DATED 4.6.2018 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.** - **EXT.P4: A TRUE COPY OF THE ORDER DATED 19.6.2018 IN W.P. (C) NO.18444/2018** **EXT.P5: A TRUE COPY OF THE TABULATION SHEET OF THE RESULT PUBLISHED BY THE RETURNING OFFICER.** //True copy// P.S. To Judge csl