W.P.(C) Nos.35145/2017 (P) and connected cases, High Court of Kerala (Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939** ## **WP(C).No. 35145 of 2017 (P)** ## **----------------------------** ## **PETITIONER(S):** **------------------------** **1. PRASANNA BABU, LAL NIVAS, CHENTHAPOOR, DECENT JUNCTION P.O, THRIKKOVILVATTOM, MUKKATHALA, KOLLAM.** ## **2. MITHILAJUDHEEN,** - **552(15/387) MELEVILA) THRIKKOVILVATTOM, KOLLAM.** ## **3. DWARA,** - **21/348, JNARAVILA, PADINJATTETHIL, VETTILATHAZHAM, DECENT JUNCTION P.O, KOLLAM.** ## **4. BALACHANDRAN PILLAI,** - **96, PLAVILA VADAKKETHIL VEEDU, THRIKKOVILVATTOM, KOLLAM.** **5. SASIDHARAN.G, 484, SUNIL BHAVAN, THRIKKOVILVATTOM, KOLLAM.** ## **BY ADV. SRI.D.SOMASUNDARAM** ## **RESPONDENT(S):** - **----------------------------** ## **1. KERALA STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM-695 001.** **2. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM-691 001.** **3. B.S PRAVEEN DAS, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOLLAM-691 001.** **2/-** **-2-** **WP(C).No. 35145 of 2017 (P)** ## **4. DECENT JUNCTION SERVICE CO-OPERATIVE BANK LTD NO.Q.133, DECENT JUNCTION P.O, KOLLAM, REPRESENTED BY ITS SECRETARY-691 577.** **R1 & R2 BY SPL.GOVERNMENT PLEADER SRI.K.S.MOHAMMED HASHIM R4 BY SRI.V.G.ARUN SRI.T.R.HARIKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-11-2017,ALONG WITH WP(C) NO.35865/2017 AND WP(C) NO.36007/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 35145 of 2017 (P)** **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------------------------** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.27980/2017. EXHIBIT P2 TRUE COPY OF THE ELECTION NOTIFICATION DATED 23.10.2017. EXHIBIT P3 TRUE COPY OF THE ORDER NO.E(1)4061/2017/SCEC DATED 23.10.2017. EXHIBIT P4 TRUE COPY OF THE PETITION DATED 24.10.2017 BEFORE THE 1ST RESPONDENT.** **RESPONDENT(S)' EXHIBITS: NIL** **-------------------------------------------** ## **/TRUE COPY/** **P.S.TO JUDGE** **sts** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) Nos.35145, 35865 & 36007 of 2017 ----------------------------------------------Dated this the 13[th] day of November, 2017** ## **JUDGMENT** The captioned writ petitions are materially connected, in respect of declaration of election by the State Co-operative Election Commission to the Decent Junction Service Cooperative Bank Ltd. No.Q-133, which is a respondent in W.P. (C) Nos.35145 of 2017 and 35865 of 2017, and the petitioner in W.P.(C) No.36007 of 2017, and the consequential actions thereto. 2. W.P.(C) No.35145 of 2017 is filed by the members of the respondent society seeking direction to the 1st respondent to consider Ext.P4 representation and to take appropriate action to ensure a free and fair election, and a further direction to remove the 2nd respondent from the duties in connection with the election to the Board of Directors of the 4th respondent on the basis of Ext.P2 election schedule. The other two writ petitions are filed by members of the society and the society respectively, seeking direction to the respondents to allow all the persons included in the preliminary **W.P.(C) No.35145/17 & con. cases** 2 voters list to cast their votes in the election to the society specified above, scheduled to be held on 26.11.2017, as per the notification dated 23.10.2017. Material facts for the disposal of the writ petitions as are discernible from W.P.(C) No.35865 of 2017 are recited hereunder, and the fate of the other writ petitions will be decided by the findings in this writ petition. 3. Petitioners are members of the 3rd respondent Bank for the last several years. First respondent was appointed as Electoral Officer. The resolution to conduct election earlier passed by the Board was not forwarded to the Election Commission by the 1st respondent. So, the election was not held before the term of the erstwhile Board. In a writ petition filed challenging the said action, this Court directed to conduct election and also appointed three members of the erstwhile Board to constitute as the Administrative Committee to look after the day-to-day affairs of the society. Accordingly, they are managing the affairs of the Bank. 4. Pursuant to the resolution made, State Co-operative Election Commission issued election notification to conduct the election on 26.11.2017. The Chief Executive submitted list of **W.P.(C) No.35145/17 & con. cases** 3 voters approved by the Administrative Committee to the 1st respondent. There were only three objections against the preliminary voters list, is the contention advanced by the petitioners. According to the petitioners, the three objections were similarly worded and prepared in the same handwriting. Along with the objections, three list of persons were attached, stating that they are ineligible persons and are to be removed from the voters list. Altogether in the three lists contained only 2100 members. But the Electoral Officer deleted 4082 members from the voters list. It is also submitted that, against the remaining 1982 members, there was no objection. Therefore, it is the contention of the petitioners that the entire action of the 1st respondent removing the petitioners from the voters list without complying with the procedures contemplated under law and the proposition of law settled by this Court, is illegal and arbitrary, and therefore, interference of this Court is sought for. As I pointed out earlier, in W.P.(C) No.36007 of 2017 also, similar contentions are raised. 5. I have heard learned counsel for the petitioners, learned Special Government Pleader and the learned counsel appearing for the other respondents. Perused the documents **W.P.(C) No.35145/17 & con. cases** 4 on record and the pleadings put forth by the petitioners. 6. Learned counsel for the petitioners made their submissions in accordance with the contentions raised in the writ petitions. Learned Special Government Pleader, on the other hand, submitted that, already the election notification is issued, the proceedings are going on, the election is to take place on 26.11.2017, and therefore, interference of this Court under Article 226 of the Constitution of India may not be justified. It is also submitted that, petitioners are left with remedy under the provisions of the Kerala Co-operative Societies Act and Rules, 1969, after the elections are over, by challenging the same, if there is any illegality in removal of the members from the voters list. Learned Government Pleader also produced the proceedings relating to the removal of the members, and I had occasion to verify the same. But, I do not propose to make any comment with respect to the same, in view of the nature of order I propose to pass. 7. Learned counsel for the petitioners have canvassed their contentions raised, relying on the judgment of this Court in _**'Porinchu v. Joint Registrar of Co-operative Societies'**_ [2009 (4) KLT 105] and also the judgment of this Court in **W.P.(C) No.35145/17 & con. cases** 5 ' _**P.A. Devasia v. State of Kerala and others'**_ [W.P.(C) No.15024 of 2012 dated 27.07.2012], to canvass the proposition that the removal of members from the voters list can only be on the basis of consideration of objections and identifying whether they are ineligible for want of residence within the territorial limits of the society. Learned counsel has also invited my attention to a Division Bench judgment of this Court in _**'Vijayakumar v. Joint Registrar'**_ [1996(1) KLT 285] wherein, this Court held that the Returning Officer has power to make an enquiry regarding eligibility of a voter to be included in the voters list, if the objections are definite and specific. It is further held therein that the Returning Officer shall verify them with the materials placed before him by the objectors and authorities of the Society. 8. I have considered the rival submissions made across the Bar, and perused the documents and pleadings and also the proceedings pertaining to the removal of members from the voters list. The summary of fact discussion made above would make it clear that the subject matter is relating to the election to the Co-operative society. Ext.P2 election notification is dated 23.10.2017, apparently, on the basis of **W.P.(C) No.35145/17 & con. cases** 6 the decision of the Administrative Committee appointed by this Court from among the members of the erstwhile managing committee. 9. It is a well-settled proposition of in law that when the election is notified, interference under Article 226 of the Constitution of India is not expected of, especially when the issues raised by the petitioners can be raised in an election petition, after the conduct of the election, if they are advised so. The issue was considered by the apex court in _**'Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others'**_ [AIR 2001 SC 3982], which was followed in _**'Shaji K. Joseph v. V. Viswanath and others'**_ [2016 (2) KHC 33 (SC)]. 10. A Division Bench of this Court in _**'Tiruvalla East Co-operative Bank Ltd. v. State Co-operative Election Commission'**_ [2017 (1) KLT 921] had occasion to consider the very same issue, and after an elaborate survey of various judgments of the apex court, has held that, under normal and ordinary circumstances, writ court shall not interfere with election proceedings. Moreover, in _**'Shri Sant Sadguru'**_ **W.P.(C) No.35145/17 & con. cases** 7 _(supra),_ the apex court held that, as and when the draft voters list is published, election proceedings are on, and no interference shall be made. 11. So also, the apex court in _**'Nanhoo Mal and Others v. Hira Mal and Others'**_ [(1976) 3 SCC 211] had considered the issue and held in paragraph 3 of the judgment, as follows: _“3. x x x x x x x x x x x x x x x x x x x x x x x x x x x Thus the only way by which the election of a President can be called in question is by means of an election petition presented in accordance with the provisions of this Act. The election itself can be questioned only on one of the three grounds mentioned above. The only ground in the present case on the basis of which the election of the appellant was questioned is that there was a non-compliance with the provisions of Rule 6, already referred to. Under the Act the non-compliance with any rule or order made under the Act or any provisions of the Act does not ipso facto result in the election being set aside. That result an be set aside only if the Election Tribunal comes to the conclusion that the result of the election has been materially affected by such non-compliance. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the District Judge. In the circumstances, there was no room for the High Court exercising its powers under Article 226 in order to set aside the election. In setting aside the election, the High Court plainly erred because it did not consider whether the result of the election had been materially affected by non-compliance with the rule in question. In any case that is a matter within the exclusive jurisdiction of the District Judge.”_ **W.P.(C) No.35145/17 & con. cases** 8 Therefore, it is convincingly clear, no interference at this stage of the proceedings is possible, in any of the writ petitions. 12. So far as the provisions of the Act, 1969 are concerned, the dispute is dealt with, in Explanation to Sec.69 (2), which states that, 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. Therefore, it is evident that, as soon as the general body meeting is constituted for the purpose of drawing up resolution for conducting the election, any dispute arising thereafter is an election dispute. Section 70(2) of the Act deals with the powers of the Cooperative Arbitration Court in a dispute raised before it and it has got every power for summoning and enforcing the attendance of any defendant or witness and examining them on oath, the discovery and production of any document or other material object producible as evidence, reception of evidence on affidavits, issue of any commission for examination of witness; and any other matter which may be prescribed. Powers are conferred under Rule 67 of the Rules 1969. Furthermore, as per sub-section (6) of Sec.70, pending **W.P.(C) No.35145/17 & con. cases** 9 decision or award, the Registrar, such person or the arbitrator, as the case may be, is invested with power to pass interlocutory orders as he may deem necessary, in the interests of justice. 13. Taking into account the facts and circumstances and reckoning the law involved in the subject matter, I am of the considered opinion that the reliefs sought for by the petitioners in the aforesaid writ petitions cannot be entertained at this stage of the proceedings. Accordingly, the writ petitions are dismissed, leaving open the liberty of the petitioners to seek necessary relief after the election, if advised so. Sd/- **SHAJI P. CHALY JUDGE** St/13.11.2017