Vinod Kumar.R v. The Managing Director (In-Charge), Adichanalloor Farmer's Service Co-operative Bank Ltd.; Asst. Registrar of Co-operative Societies (General), Kollam; Joint Registrar, Co-operative Societies (General), Kollam; State Election Commissioner, Co-operative Societies, Thiruvananthapuram; Registrar of Co-operative Societies, Thiruvananthapuram; Electoral Officer, Asst. Registrar (General), Adichanalloor Service Co-operative Bank, Kollam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY,THE 25TH DAY OF JANUARY 2019 / 5TH MAGHA, 1940** ## **WP(C).No. 1812 of 2019** ## **PETITIONER:** **MR.VINOD KUMAR.R, AGED 45 YEARS S/O.RAMACHANDRAN, RESIDING AT MADATHILAZHIKAM, ADICHENALLOOR P.O., KOLLAM.** **BY ADV. SRI.S.SREEKUMAR (KOLLAM)** ## **RESPONDENTS:** - **1 THE MANAGING DIRECTOR (IN-CHARGE), ADICHENALLOOR FARMER'S SERVICE CO-OPERATIVE BANK LTD.NO.2609, ADICHANALLOOR P.O., KOLLAM- 691573.** - **2 ASST.REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), COLLECTORATE, KOLLAM- 691013.** - **3 JOINT REGISTRAR, CO-OPERATIVE SOCIETIES (GENERAL), COLLECTORATE, KOLLAM- 691013.** - **4 STATE ELECTION COMMISSIONER, CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM- 695001.** - **5 REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM- 695001.** - **6 THE ELECTORAL OFFICER, ASST.REGISTRAR (GENERAL), (ADICHANALLOOR SERVICE CO-OPERATIVE BANK) COLLECTORATE, KOLLAM- 691013.** **BY ADVS. SMT.SINDHU SANTHALINGAM SRI.A.D.SHAJAN SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.1812 of 2019** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is a member of 1st respondent Adichenalloor Farmer's Service Cooperative Bank Ltd., 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 [wrongly stated as writ of mandamus in relief No.(i)] to quash Ext.P1 election notification dated 17.12.2018 issued by the State Co-operative Election Commission, whereby the election to the Board of Directors of the said Society is scheduled to be held on 3.2.2019. The petitioner has also sought for a writ of mandamus commanding the 6th respondent Electoral Officer to pass orders on Exts.P3 and P4 objections dated 10.1.2019 submitted to the preliminary voters list and also consideration of ## **W.P.(C)No.1812 of 2019** ## **:-3-:** Ext.P4 objection, which is submitted before the 1st respondent, the Managing Directors in-charge of the said Society, within a time limit to be fixed by this Court. The further relief sought for is a writ of mandamus commanding respondents 2 to 5 to rectify the final voters list and allow the petitioners and other eligible members to participate in the election to the Board of Directors of the Adichanallooru Farmer's Service Co-operative Bank scheduled to be held on 3.2.2019 in terms of Ext.P1 election notification dated 17.12.2018 and to exclude ineligible members from the final voters list. 2. On 22.1.2019 when this writ petition came up for consideration, this Court issued urgent notice by special messenger to the 1st respondent, returnable by this date. The learned Senior Government Pleader took notice on admission for respondents 2 to 6. ## **W.P.(C)No.1812 of 2019** **:-4-:** 3. Heard the learned counsel for the petitioner, the learned Senior Counsel for the 1st respondent Managing Director in-charge of the Society and also the learned Senior Government Pleader appearing for respondents 2 to 6. 4. The pleadings and materials on record would show that the election to the Board of Directors of the Adichanallooru Farmer's Service Co-operative Bank Ltd. (hereinafter referred to as 'respondent Society') is scheduled to be held on 3.2.2019 in terms of Ext.P1 election notification dated 17.12.2018 issued by the 4th respondent State Co- operative Election Commission. In terms of the said notification, the preliminary voters list was published on 3.1.2019 at 11.00 a.m. The objections to the preliminary voters list were called for from 3.1.2019 from 11.00 a.m. to 5.00 p.m. of 10.1.2019. The 6th respondent Electoral Officer considered those objections on 11.1.2019 from 11.00 a.m. to ## **W.P.(C)No.1812 of 2019** **:-5-:** 1.00 p.m. and thereafter, final voters list was published on 11.1.2019. The petitioner submitted Ext.P3 objection before the 6th respondent Electoral Officer, on 10.1.2019 at 4.00 p.m., just before the expiry of the time limit specified in Ext.P1 notification for submission of objections to the preliminary voters list. In Ext.P3 objection it is contended that dead persons and also those persons who are not residing within the area of operation of the respondent Society are included in the preliminary voters list. However, a reading of Ext.P3 objection would show that the petitioner has not even identified even a single member who is included in the preliminary votes list who is dead person or who is residing outside the area of operation of the respondent Society. Ext.P4 objection of the petitioner is one made before the 1st respondent Managing Director in-charge and not before the 6th respondent Electoral officer. ## **W.P.(C)No.1812 of 2019** **:-6-:** 5. During the course of arguments, the learned Senior Government Pleader, on instructions from the 6th respondent Electoral Officer, would submit that, on 11.1.2019 at the time of consideration of objection to the preliminary voters list, the petitioner produced the death certificates of six persons included in the preliminary voters list and those persons were excluded while publishing the final voters list. The learned Senior Government Pleader would also submit that other than Ext.P3 objection, no objections were received to the preliminary voters list published by the 6th respondent Electoral Officer. 6. The learned Senior Counsel for the 1st respondent would point out that while publishing the final voters list, the 6th respondent Electoral Officer has also issued a proceedings dated 10.1.2019 recording the reason for the exclusion of six persons from the voters list, based on Ext.P3 ## **W.P.(C)No.1812 of 2019** ## **:-7-:** objection made by the petitioner. 7. Having considered the submissions made by the learned counsel on both sides, this Court finds that despite the fact that, Ext.P3 objection made by the petitioner does not contain even the necessary materials about the dead persons or persons residing outside the area of operation of the respondent Society, the 6th respondent Electoral Officer considered the said objection and relying on the death certificate produced by the petitioner at the time of consideration of Ext.P3 objection, on 11.1.2019, excluded six dead persons while publishing the final voters list. The aforesaid proceedings of the Electoral Officer is not placed on record in this writ petition. 8. If the petitioner is having any dispute as to the publication of the final voters list published for the election to the Board of Directors of the respondent Society which is ## **W.P.(C)No.1812 of 2019** ## **:-8-:** scheduled to be held on 3.2.2019 in terms of Ext.P1 notification, he has to raise such dispute 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 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 ## **W.P.(C)No.1812 of 2019** ## **:-9-:** committee of Societies by the State Co-operative Election Commission. If that be so, any dispute in relation to preparation of final voters list by the Electoral Officer, in exercise of his powers under Rule 35A of the Rules, is a dispute arising in connection with that election, which 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. 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 Cooperative Societies Elections to Committees Rules, 1971, the Apex Court held that, the preparation of provisional list of voters, filing of objection ## **W.P.(C)No.1812 of 2019** ## **:-10-:** 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 ## **W.P.(C)No.1812 of 2019** ## **:-11-:** 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. 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 ## **W.P.(C)No.1812 of 2019** ## **:-12-:** 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. 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 ## **W.P.(C)No.1812 of 2019** ## **:-13-:** 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 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 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 ## **W.P.(C)No.1812 of 2019** ## **:-14-:** 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. 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 Board of Directors of the Adichanallooru Farmer's Service Co-operative Bank scheduled to be held on 3.2.2019 in terms of Ext.P1 notification, he has to raise such dispute before the Co-operative Arbitration Court by invoking the statutory remedy available ## **W.P.(C)No.1812 of 2019** ## **:-15-:** 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 interference under Article 226 of the Constitution of India. 15. 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 Board of Directors of the Adichanallooru Farmer's Service Co-operative Bank, conducted in terms of Ext.P1 election notification, 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 ## **W.P.(C)No.1812 of 2019** **:-16-:** any dispute raised by the petitioner under Section 69 of the Act, in connection with the election to Board of Directors of the Adichanallooru Farmer's Service Co-operative Bank, untrammelled by any such observations. Sd/- **ANIL K.NARENDRAN JUDGE** ami/ ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE ELECTION NOTIFICATION E(1)9976/2018/SCEC DATED 17.12.2018 PUBLISHED BY THE 1ST RESPONDENT IN DESABHIMANI DAILY DATED 01.01.2019.** **EXHIBIT P2 THE TRUE COPY OF THE BYE-LAW OF THE BANK.** **EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BEFORE THE 6TH RESPONDENT.** **EXHIBIT P4 THE TRUE COPY OF THE OBJECTION FILED BEFORE THE 1ST RESPONDENT.** **EXHIBIT P5 THE TRUE COPY OF THE OBJECTION FILED BEFORE THE 1ST RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE LIST OF MEMBERS WHO ARE RESIDING OUTSIDE THE LIMIT OF ADICHANALLOOR CO-OPERATIVE BANK.** ## **W.P.(C)No.1812 of 2019** **:-17-:** **EXHIBIT P7 THE TRUE COPY OF THE LIST OF DEATH PERSONS WHOSE NAME WAS INCLUDED IN THE DRAFT VOTERS LIST.** **EXHIBIT P8 THE TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER.**