Viswanathan Nair K.S. v. State of Kerala, State Co-operative Election Commission, Returning Officer, Residing Officer, Mekkozhoor Service Co-operative Bank Ltd., Joint Registrar of Co-operative Societies, Pathanamthitta, and Thomas Philip Mazhuvancheri Parambil

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940** ## **WP(C).No. 38631 of 2018** ## **PETITIONER:** **VISWANATHAN NAIR K.S., AGED 62 YEARS S/O. SANKARA KURUP, KONNAKOTTU HOUSE, MEKKOZHOOR PO, PATHANAMTHITTA** **BY ADV. SRI.D.KISHORE SMT.MINI GOPINATH SMT.MEERA GOPINATH SRI MURALEEKRISHNAN R(MALAKKARA)** ## **RESPONDENTS:** |**1**|**STATE OF KERALA REPRESENTED BY ITS SECRETARY**| |---|---| ||**CO-OPERATIVE DEPARTMENT, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM 695001**| |**2**|**THE STATE CO-OPERATIVE ELECTION COMMISSION,**| ||**3RD FLOOR, CO-BANK TOWERS,**| ||**VIKAS BHAVAN, P.O., THIRUVANANTHAPURAM 695033**| |**3**|**THE RETURNING OFFICER,**| ||**(ASSISTANT REGISTRAR OF CO-OPERATIVE**| ||**SOCIETIES), MEKKOZHOOR SERVICE CO-OPERATIVE**| ||**BANK (LTD. NO. 1191), MEKKOZHOOR P.O.,**| ||**PATHANAMTHITTA DISTRICT 689 645**| |**4**|**THE RESIDING OFFICER,**| ||**(UNIT INSPECTOR, CO- OPERATIVE SOCIETIES**| ||**VALLIKKODE UNIT),**| ||**MEKKOZHOOR SERVICE CO- OPERATIVE BANK LTD, NO.**| ||**1191,) MEKKOZHOOR P.O.,**| ||**PATHANAMTHITTA DISTRICT 689 648**| 2 WP(C)38631 OF 2018 **5 THE MEKKOZHOOR SERVICE CO-OPERATIVE BANK (LTD, NO. 1191), MEKKOZHOOR P.O.,** **PATHANAMTHITTA DISTRICT REPRESENTED BY ITS SECRETARY 689 678** - **6 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, PATHANAMTHITTA.** - **7 THOMAS PHILIP MAZHUVANCHERI PARAMBIL, MANNARAKULANNI.P.O., PATHANAMTHITTA -689678** **BY ADVS.** **SR.GOVERNMENT PLEADER SRI K.P.HARISH R7 BY SRI.P.N.MOHANAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 WP(C)38631 OF 2018 ## **JUDGMENT** The petitioner, who had contested in the election to the Managing Committee of the 5[th] respondent Service Cooperative Bank (which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder) held on 25.11.2018, in terms of Ext.P1 election notification dated 17.10.2018 issued by the 2[nd] respondent State Co-operative Election Commission, is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 notice dated nil issued by the 3[rd] respondent Returning Officer, whereby one returned candidate is informed that a meeting of the candidates contested in the election held on 25.11.2018 is scheduled on 29.11.2018 at 10.00 am for re-declaration of the result of the election, in order to correct certain mistakes in the declaration of result. The petitioner has also sought for a writ of mandamus commanding respondents 2 and 4 to convene a meeting of the elected members of the 5[th] respondent Society for the election of President and Vice 4 WP(C)38631 OF 2018 President, as contemplated under Rules 38 and 43 of the Kerala Co-operative Societies Rules, 1969, forthwith; a declaration that the 4[th] respondent Returning Officer does not have any authority to reopen the results of the election once declared and recorded in the minutes book of the Society, as per the mandate of sub-clause (p) of sub-rule (6) of Rule 35A [wrongly stated as Rule 35A(xi)(p)] of the Kerala Co-operative Societies Rules and that, the remedy of an unsuccessful candidate or other person is to avail the statutory remedy before the Co-operative Arbitration Court constituted under Section 70A of the Act; a writ of certiorari to quash Ext.P7 proceedings dated 28.11.2018 of the 2[nd] respondent State Cooperative Election Commission; and a writ of mandamus commanding respondents 2, 4 and 7 to permit the elected members to assume their office as members of the Managing Committee of the 5[th] respondent Society. 2. On 28.11.2018, when this writ petition came up for admission, the learned Senior Government Pleader was directed to place on record a copy of the complaint stated to have been made by one Mr. Thomas Philip; the report of the 5 WP(C)38631 OF 2018 Returning Officer dated 27.11.2018; and also the decision of the State Co-operative Election Commission dated 28.11.2018. The writ petition was adjourned to 29.11.2018 at 10.15 am and it was ordered that the convening of meeting in terms of Ext.P4 notice shall be deferred for the time being. 3. On 29.11.2018, when this writ petition came up for consideration, the Joint Registrar of Co-operative Societies, Pathanamthitta, was _suo motu_ impleaded as additional 6[th] respondent. Along with a memo dated 29.11.2018 filed by the learned Senior Government Pleader, a copy of the complaint made by one Mr.Thomas Philip was placed on record. Considering the urgency of the matter, the said person was also impleaded _suo motu_ as additional 7[th] respondent. The learned Senior Government Pleader took notice on admission for respondents 1 to 4 and also for the additional 6[th] respondent. Urgent notice on admission by special messenger was ordered to the 5[th] respondent Society and also to the additional 7[th] respondent, returnable by 03.12.2018. Since the term of the elected committee of the 5[th] respondent Society had expired on 27.11.2018, it was made clear that it would be 6 WP(C)38631 OF 2018 open to the additional 7[th] respondent Joint Registrar to appoint an Administrative Committee consisting of three members, either from the elected members or any member of the Society, in exercise of his powers under Section 33 of the Act. While adjourning the writ petition to 03.12.2018, it was ordered that the interim order will continue till then. 4. By order dated 03.12.2018, I.A.No.1 of 2018 filed by the petitioner, seeking an order to amend the writ petition, was allowed by incorporating additional statement of facts, grounds and reliefs. 5. On 29.01.2019, when this writ petition came up for consideration, the learned Senior Government Pleader submitted that a copy of the order dated 17.10.2018 of the 2[nd] respondent State Co-operative Election Commission, appointing Electoral Officer and Returning Officer in the election to the Managing Committee of the 5[th] respondent Society, shall be placed on record along with a memo. Accordingly, the same is placed on record along with a memo dated 30.01.2019. 6. A counter affidavit has been filed by the additional 7 WP(C)38631 OF 2018 7[th] respondent, opposing the reliefs sought for in this writ petition. The petitioner has filed a reply affidavit to the counter affidavit filed by additional 7[th] respondent. The 3[rd] respondent has also filed a counter affidavit, opposing the reliefs sought for in this writ petition. 7. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the official respondents and also the learned counsel for additional 7[th] respondent. 8. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P4 notice dated nil issued by the 3[rd] respondent Returning Officer and Ext.P7 order dated 28.11.2018 of the 2[nd] respondent State Co-operative Election Commission. 9. The pleadings and materials on record would show that, in terms of Ext.P1 notification issued by the 2[nd] respondent State Co-operative Election Commission, the election to the Managing Committee of the 5[th] respondent Society was held on 25.11.2018. Along with a memo dated 30.01.2019 filed by the learned Senior Government Pleader, a 8 WP(C)38631 OF 2018 copy of the order dated 17.10.2018 of the State Co-operative Election Commission is placed on record. By the said order, the Electoral Officer and the Returning Officer for the election to the Managing Committee of the 5[th] respondent Society and also the Presiding Officer for electing the office bearers of the Managing Committee were appointed. It was based on the said order that the Election Commission has issued Ext.P1 notification. 10. In terms of the Ext.P1 election notification, the preliminary voters list was published on 22.10.2018. After considering the objections received from 22.10.2018 at 11.00 am to 29.10.2018 at 5.00 pm, the final voters list was published on 31.10.2019. Nominations were submitted on 07.11.2018 from 11.00 am to 1.00 pm and the scrutiny of the nomination had taken place on 08.11.2018 at 11.00 am. After the time limit prescribed for withdrawal of nominations, the list of valid nominations were published on 09.11.2018 and thereafter, the polling was conducted on 25.11.2018 from 8.00 am to 4.00 pm. 11. The fact that, the result of the election was declared 9 WP(C)38631 OF 2018 by the 3[rd] respondent Returning Officer on 25.11.2018 is not in dispute. Such declaration of result has been made by the 3[rd] respondent, in exercise of his powers under clause (p) of subrule (6) of Rule 35A of the Kerala Co-operative Societies Rules, which provides that the result of election shall be recorded in the minutes book of the Society and attested by the Returning Officer and shall also be notified immediately on the notice board of the Society for the purpose of clause (b) of subsection (1) of Section 29 of the Act. It was after the declaration of result of the election, that the 3[rd] respondent Returning Officer issued Ext.P4 notice, and the 2[nd] respondent State Co-operative Election Commission issued Ext.P7 order, which are under challenge in this writ petition. 12. The learned Senior Government Pleader for the official respondents and also the learned counsel for additional 7[th] respondent would contend that, even after declaration of result, the election to the post of President and Vice President of the Society was yet to take place, as provided under Rule 38, read with Rule 43 of the Kerala Co-operative Societies Rules and as such, the 3[rd] respondent Returning Officer and 10 WP(C)38631 OF 2018 also the 2[nd] respondent State Co-operative Election Commission can exercise their powers even after the declaration of result. 13. Pursuant to the order of this Court dated 29.01.2019, the learned Senior Government Pleader has placed on record the order dated 17.10.2018, whereby the 2[nd] respondent State Co-operative Election Commission has appointed Electoral Officer and Returning Officer for the conduct of election. A perusal of the said order would show that, in exercise of the powers under Rule 35A of the Kerala Co-operative Societies Rules, the Election Commission has appointed an Electoral Officer and Returning Officer for the conduct of election to the Managing Committee and by the very same order, the 4[th] respondent Unit Inspector, Vellikode Unit in the office of the Joint Registrar of Co-operative Societies, Pathanamthitta has been appointed as the Presiding Officer for the purpose of conduct of election to the post of President and Vice President. As evident from the order dated 17.10.2018, after the declaration of the result of the election held on 25.11.2018, the election to the post of President and 11 WP(C)38631 OF 2018 Vice President of the Society has to be conducted by the 4[th] respondent, who has been designated as the Presiding Officer and not by the 3[rd] respondent Returning Officer. 14. The dispute now raised in this writ petition centers around the total number of votes secured by the petitioner and the 7[th] respondent. Relying on the materials placed on record, along with the counter affidavit, the 3[rd] respondent Returning Officer and also the additional 7[th] respondent would contend that, in the election held on 25.11.2018, total 1765 voters exercised their voting right (out of total 2826 voters). After the close of polling, counting was started in 8 tables, till it is over. In the first round of counting each table were provided with 110 votes each, thus 880 votes were counted. Rest of the 885 votes were counted in the second round, in 8 tables, in the same fashion. After counting the votes in each round it was recorded and tabulated in computer, then and there by the officials entrusted with that duty. 15. The document placed on record as Ext.R7(a) along with the counter affidavit of the additional 7[th] respondent is stated to be a printout of the tabulation done by the 3[rd] 12 WP(C)38631 OF 2018 respondent Returning Officer. The 3[rd] respondent Returning Officer and also the additional 7[th] respondent would contend that, in the counting, the additional 7[th] respondent got a total votes of 534, on the other hand, the petitioner got only 488 votes. However, when the votes secured by each candidates were tabulated, the total votes secured by the additional 7[th] respondent was noted as 415 instead of 534. In order to substantiate the said contention, a copy of the tabulation sheet is placed on record as Ext.R7(c). When the mistake committed by the Returning Officer in declaring the result of the election was noticed, based on Ext.R7(d) petition dated 26.11.2018 submitted by the additional 7[th] respondent, the 3[rd] respondent Returning Officer initiated proceedings, which has resulted in Ext.P4 notice. In the counter affidavit filed by the 3[rd] respondent Returning Officer, it is contended that Ext.P4 notice has been issued as per the directions contained in Ext.R3(d)/Ext.P7 communication 28.11.2018 of the 2[nd] respondent State Co-operative Election Commission. Along with the counter affidavit of the 3[rd] respondent, a true copy of the tabulation sheets are produced as Ext.R3(b). The 13 WP(C)38631 OF 2018 document marked as Ext.R3(c) is a communication dated 27.11.2018, whereby the 3[rd] respondent informed the mistakes in tabulation to the 2[nd] respondent. 16. Sub-rule (7) of Rule 35A of the Kerala Co-operative Societies Rules mandates that after announcement of the result of the election, the Returning Officer shall keep the ballot papers, used and unused in a sealed cover and hand them over to the Secretary for safe custody. The Secretary shall preserve them for three months from the date of announcement of result of the election. They shall not be destroyed after the period noted above, if any dispute in relation to or in connection with election is pending. As already noticed, as per clause (p) of sub-rule (6) of Rule 35A of the Kerala Co-operative Societies Rules, once the result of the election is declared and it is entered in the minutes book, the elected candidates shall be deemed to have been elected by the General Body of the Society for the purpose of clause (b) of sub-section (1) of Section 29. Similarly, after the declaration of the result, the Returning Officer has to keep the ballot papers, used and unused in the sealed cover and the 14 WP(C)38631 OF 2018 same shall be preserved by the Secretary of the Society in safe custody for the period specified in sub-rule (7) of Rule 35A of the Rules. 17. Therefore, if there is any dispute in relation to the declaration of results of the election conducted on 25.11.2018 to the Managing Committee of the 5th respondent Society, which has already been declared on 25.11.2018 itself, it is for a member of the Society to raise such dispute before the Cooperative 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 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 15 WP(C)38631 OF 2018 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. If that be so, any dispute in relation to declaration of result by the Returning Officer, in exercise of his powers under clause (o) of sub-rule (6) of Rule 35A of the Kerala Co-operative Societies 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. 18. 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 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 16 WP(C)38631 OF 2018 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. 19. 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 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 17 WP(C)38631 OF 2018 the election. 20. 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) 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. 21. Part IXB of the Constitution of India, inserted by the Constitution (97th Amendment) Act, 2011 deals with Co- 18 WP(C)38631 OF 2018 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. ## 22. 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 Co-operative Arbitration Court unless it is 19 WP(C)38631 OF 2018 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. 23. In **Krishna Ballabh Prasad Singh v. Sub Divisional Officer Hilsa-cum-Returning Officer [(1985) 4 SCC 194]** , in the context of the provisions under the Representation of People Act, 1951 and also the Conduct of Election Rules, 1961, the Apex Court held that the process of election will come to an end after the declaration in Form 21C is made and the consequential formalities are completed. The bar under clause (b) of Article 329 of the Constitution will apply only thereafter and the election petition alone is maintainable. Paragraphs 4 and 5 of the said decision reads thus; “4. The process of election set forth in the 20 WP(C)38631 OF 2018 Representation of People Act, 1951, consists of several stages and towards the end it requires a declaration of the result of the election. Section 66 of the Act provides that when the counting of votes has been completed the Returning Officer must declare forthwith the result of the election "in the manner provided in this Act or the rules made thereunder". Thereafter, under Section 67 the result of the election is reported by the Returning Officer to the authorities specified therein and the declaration is published in the Official Gazette. It may be mentioned that according to Section 67A of the Act the date on which the candidate is declared by the Returning Officer under Section 66 to be elected is regarded as the date of election of that candidate. Now, as contemplated by Section 66 the declaration of the result of the election must he in the manner provided by the Act or the rules made thereunder. The procedure for declaring the result of the election is set forth in Rule 64 of the Conduct of Election Rules, 1961. Rule 64 provides :- "64. Declaration of result of election and return of election. The Returning Officer shall, subject to the provisions of Section 65 if and so far as they apply to any particular case, then - (a) declare in Form 21C or Form 21D, as may be appropriate, the candidate to whom the largest number of valid votes has been given, 21 WP(C)38631 OF 2018 to be elected under Section 66 and send signed copies thereof to the appropriate authority, the Election Commission and the chief electoral officer; and (b) complete and certify the return of election in Form 21 E and send signed copies thereof to the Election Commission and the Chief Electoral Officer." It is plain that the declaration envisaged by the law that a candidate has been elected is the declaration in Form 21C or Form 21D. The declaration in Form 21C is made in a general election and the declaration in Form 21D is made when the election is held to fill a casual vacancy. It is now settled law that the right to vote, the right to stand as a candidate for election and the entire procedure in relation thereto are created and determined by statute. Accordingly, when Section 66 of the Representation of the People Act, 1951 provides that the result of the election shall be declared in the manner provided by the Act or the Rules made thereunder, the declaration can be effected in that manner only. The manner is clearly expressed in Rule 64 of the Conduct of Election Rules, 1961. There is no other manner. There must be a declaration in Form 21C or Form 21D. The announcement by the Returning Officer that the petitioner had been elected has no legal status because the declaration in Form 21C had not yet been drawn up. Even the grant of the certificate of 22 WP(C)38631 OF 2018 election in Form 22 to the petitioner cannot avail him because Rule 66 contemplates the grant of such certificate only after the candidate has been declared elected under S. 66, which refers us back to Rule 64 and therefore to Form 21C. There having been no declaration in Form 21C at the relevant time, the grant of the certificate of election in Form 22 to the petitioner was meaningless. 5. We are of opinion that the process of election came to an end only after the declaration in Form 21C was made and the consequential formalities were completed. The bar of Clause (b) of Article 329 of the Constitution came into operation only thereafter and an election petition alone was maintainable. The writ petition cannot be entertained.” (underline supplied) ## 24. In **Shailamma Issac v. Returning Officer [2014** **(1) KLT 410]** , in the context of the provisions under Section 153 of the Kerala Panchayat Raj Act, 1994, a Division Bench of this Court held that the Election Commission has no jurisdiction to interfere with the election process once the result is declared. Paragraph 13 of the said decision reads thus; “13. There can be no quarrel with the position which has been canvassed before us by the learned counsel 23 WP(C)38631 OF 2018 for the appellant that after the declaration of the election the Election Commission becomes functus officio. This is a case wherein the aforesaid principle is not even disputed by the learned Standing Counsel for the Election Commission. The electoral laws invariably provides for remedy to the defeated candidate. As far as the present case is concerned remedy is provided under Section 153(14a) i.e, defeated candidate could approach the Court of the Munsiff and seek remedy therein. We would also reiterate that the Election Commission has no jurisdiction once a result is declared to interfere with the election process and what is more disturbing in this case no doubt after the returned candidate took oath. The oath was taken before the Returning Officer who in this case happened to be an officer of the Government fulfilling the requirements under Section 153(13).” (underline supplied) 25. In **S.T. Muthusami v. K. Natarajan [(1988) 1 SCC 572]** , the Apex Court, in the context of Section 178(2)(ii) of the Tamil Nadu Panchayats Act, 1958, which provides for election petition for settlement of election disputes, held that the parties, who are aggrieved by the result of the election, can question the validity of election by an election petition, which is an effective alternative relief. 24 WP(C)38631 OF 2018 26. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that once the result of the election is declared, as provided under clause (o) of sub-rule (6) of Rule 35A of the Kerala Co-operative Societies Rules and the result of election is recorded in the minutes book of the Society and notified in the notice board of the Society, as provided under clause (p) of sub-rule (6) of Rule 35A, the members so elected shall deem to have been elected by the General Body of the Society for the purpose of clause (b) of sub-section (1) of Section 29 of the Kerala Cooperative Societies Act. Thereafter, either the Returning Officer or the State Co-operative Election Commission has no power or authority to undo the declaration of result so made, in exercise of their powers. 27. Once the result of election is declared, the used and unused ballot papers are put in a sealed cover, which has to be preserved as such by the Secretary of the Society and the same can be opened only for the purpose of adjudication of an election dispute, which has been referred to the Co-operative Arbitration Court, invoking Section 69 of the Kerala Co- 25 WP(C)38631 OF 2018 operative Societies Act by a member of the Society. An exercise by the Returning Officer for re-declaration of the result, which has already been declared and recorded in the minutes book of the Society is legally impermissible. Therefore, conclusion is irresistible that Ext.P4 notice issued by the 3[rd] respondent Returning Officer has no legs to stand. Similarly, once the declaration of result is made and recorded in the minutes book, the State Co-operative Election Commission cannot invoke its supervisory powers under Section 28B of the Kerala Co-operative Societies Act; or the powers under sub-rule (9) of Rule 35A of the Kerala Cooperative Societies Rules, which provides that Election Commission shall have the power to issue any directions or guidelines or instructions for the conduct of election to the Societies and also the officers appointed to perform the election duties. Certainly, the officers appointed for election shall be subject to the superintendence and control of the State Co-operative Election Commission. However, once the Electoral Officer and the Returning Officer ceases to be so, on declaration of the results, the 2[nd] respondent State Co- 26 WP(C)38631 OF 2018 operative Election Commission shall have no supervisory control over such officers, under sub-rule (9) of Rule 35A of the Act. Therefore, Ext.P7 order of the 2[nd] respondent State Co-operative Election Commission also has no legs to stand. 28. The learned counsel for the additional 7[th] respondent, placing reliance on the judgments of the Division Bench of this Court in **Koya v. State of Kerala [1992 (2) KLT 194]** and in **Kadungalloor Service Co-operative Bank Ltd. v. State of Kerala and others [ILR 2016 (1) Kerala 376]** would contend that in exercise of the writ jurisdiction under Article 226 of the Constitution of India, this Court need not interfere with an illegal order without jurisdiction, if such action would result in restoration or revival of another order, which is also bad. 29. The question as to whether there occurred any mistake while declaring the result of the election to the Managing Committee of the 5[th] respondent Society is a factual dispute, which has to be decided with reference to the ballot papers used in that election, which are now kept in a sealed cover. An adjudication on that factual dispute cannot be made 27 WP(C)38631 OF 2018 on the basis of a tabulation sheet produced by the additional 7[th] respondent or that produced along with the counter affidavit filed by the 3[rd] respondent Returning Officer. As held by the Apex Court in **Roshina v. Abdul Azeez [2018 (4) KLT 1353 (SC)]** , the High Court cannot allow the constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal is available. 30. Admittedly, the complaint made by the additional 7[th] respondent before the 3[rd] respondent Returning Officer is one made after the declaration of results. Further, the interference by the 2[nd] respondent State Co-operative Election Commission by Ext.P7 order was even subsequent to Ext.P4 notice issued by the 3[rd] respondent Returning Officer. In such circumstances, conclusion is irresistible that Exts.P4 notice and P7 order cannot be sustained in law, as they are issued absolutely without any authority of law. Exts.P4 notice and P7 order are accordingly set aside. Therefore, it is for the 2[nd] respondent State Co-operative Election Commission and also to the 4[th] respondent, who is the 28 WP(C)38631 OF 2018 Presiding Officer for the election to the post of President and Vice President, to proceed further with that process in terms of the order dated 17.10.2018, so as to ensure that the elected Managing Committee of the 1[st] respondent Society takes charge, replacing the Administrative Committee, without any delay. The 2[nd] and the 4[th] respondents shall do the needful, within two weeks from the date of receipt of a certified copy of this judgment. The writ petition is disposed as above. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 29 WP(C)38631 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ELECTION NOTIFICATION DATED 17.10.2018 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE ELECTION RESULTS PUBLISHED BY THE 3RD RESPONDENT ON 25.11.2018** **EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 26.11.2018 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER EXHIBIT P4 TRUE COPY OF THE NOTICE PROCEEDINGS DATED NIL ISSUED BY THE 3RD RESPONDENT TO SRI. THOMAS C.A. EXHIBIT P5 TRUE COPY OF COMPLAINT DT.26.11.2018 SUBMITTED BY THE ADDITIONAL 6TH RESPONDENT BEFORE THE 3RD RESPONDENT.** **EXHIBIT P6 TRUE COPY OF PROCEEDINGS NO.K29/2018 OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERA), KONNI DT.27.11.2018.** **EXHIBIT P7 TRUE COPY OF PROCEEDINGS No.E(1)688/2018/SCEC DT.28.11.2018 OF THE 2ND RESPONDENT.** ## **RESPONDENTS' EXHIBITS:** **EXT.R3(A): TRUE COPY OF THE POLICE REPORT DT.28.11.2018.** **EXT.R3(B): TRUE COPY OF TABULATION SHEETS FROM TABLES AND FINAL TABULATION SHEETS. EXT.R3(C): TRUE COPYH OF LETTER NO.K.29/18 DT.27.11.2018 SENT TO THE STATE COOPERATIVE ELECTION COMMISSION.** 30 WP(C)38631 OF 2018 **EXT.R3(D) TRUE COPY OF LETTER NO.E1 7688/2018/SCEC DT.28.1.2018 ISSUED BY THE STATE CO-OPERATIVE ELECTION COMMISSION. EXT.R3(E): TRUE COPY OF LETTER ISSUED BY THIS RESPONDENT.** **EXT.R7(A): TRUE COPY OF MODEL BALLOT PAPER EXT.R7(B) TRUE COPY OF DETAILS OF THE VOTES SECURED BY EACH CANDIDATES. EXT.R7(C): TRUE COPY OF TABULATION SHEET OF THE TOTAL VOTES SECURED BY EACH CANDICATES. EXT.R7(D) TRUE COPY OF REQUEST DT.26.11.2018 MADE BY THE 7TH RESPONDENT TO THE RETURNING OFFICER.** **TRUE COPY** **P.A. TO JUDGE**