Kerala High Court
Luka Abraham vs The Electoral Officer on 16 October, 2018
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940
WP(C).No. 32712 of 2018
PETITIONERS:
1 LUKA ABRAHAM, AGED 69 YEARS
S/O ABRAHAM, ARAKKAL HOUSE, KEEZHOOR P O,
THALAYOLAPARAMBU, KOTTAYAM 686605
2 AJITH.B, AGED 60 YEARS
S/O.BHASKARAN NAIR, AMBIKASADANAM, KEEZHOOR P O,
THALAYOLAPARAMBU, KOTTAYAM 686605
BY ADV.SMT.RAJANI K.N.
SMT.ANILA PETER
RESPONDENTS:
1 THE ELECTORAL OFFICER
KEEZHOOR, S.C.B.K-323, ASSISTANT REGISTRAR(GENERAL) CO-
OPERATIVE SOCIETY, VAIKOM, KOTTAYAM 686605
2 JOINT REGISTRAR (GENERAL)
CO OPERATIVE SOCIETY OFFICE, KOTTAYAM, 686001
3 KEEZHOOR SERVICE CO OPERATIVE BANK K NO. 323
KEEZHOOR P O, VAIKOM TALUK, KOTTAYAM, 686605,
REPRESENTED BY ITS SECRETARY
ADDL.4 STATE CO-OPERATIVE ELECTION COMMISSIONER
3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P O,
THIRUVANANTHAPURAM-695033.
ADDL.5 RETURNING OFFICER, UNIT INSPECTOR OF
CO-OPERATIVE SOCIETY, VADAYAR UNIT,
VAIKOM, KOTTAYAM-686141.
(ADDL.RESPONDENT NOS.4 AND 5 ARE IMPLEADED AS PER THE
ORDER DATED 12.10.2018 IN I.A.No.2/2018 IN
WP(C)NO.32712/2018.
SMT. SHEEJA C.S., SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.32712 of 2018
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J U D G M E N T
The petitioners, who are the Members of the 3 rd respondent Service Co-operative Bank, have filed this writ petition under Article 226 of the Constitution of India, seeking the following reliefs;
"a) Issue a writ, order or direction in the nature of certiorari, any other appropriate writ or order, calling for the records leading to the issue of Exhibit P10 quash the same and consider Exhibit P11.
b) Issue a writ, order or direction in the nature of mandamus or any other appropriate writ or order, directing 2nd respondent to take further proceedings on Exhibit P7 and P5.
c) Issue a writ, order or direction in the nature of mandamus or any other appropriate writ or order, directing 5th and 1st respondents that to keep the votes tendered by the 444 members mentioned in Exhibit P3 in separate box and the validity of votes of 444 members mentioned in Exhibit P3 list may be decided after the question of the validity of their membership is decided." W.P.(C)No.32712 of 2018
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2. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for respondents 1, 2, 4 and 5.
3. The first relief sought for in this writ petition is a writ of certiorari to quash Ext.P10 order dated 19.9.2018 issued by the 1st respondent Electoral Officer on the objections made by the 1st petitioner and others to the preliminary voters list published in terms of Ext.P12 election notification dated 1.8.2018 issued by the additional 4th respondent State Co-operative Election Commission. The petitioners have also sought for an order commanding the 2nd respondent Joint Registrar to take further proceedings on Exts.P5 and P7 orders dated 1.8.2017 and 12.9.2018 respectively, and also a writ, order or direction commanding 5th and 1st respondents that to keep the votes tendered by 444 members mentioned in Ext.P3 W.P.(C)No.32712 of 2018 :-4-:
in separate box and the validity of votes of 444 members mentioned in Ext.P3 list may be decided after the question of the validity of their membership is decided.
4. According to the petitioners, they submitted Ext.P9 objection before the 1st respondent Electoral Officer against Ext.P8 preliminary voters list. In Ext.P9 objection, the petitioners have pointed out that certain ineligible persons are included in Ext.P8 voters list. After considering the objections raised by the petitioners, the 1 st respondent Electoral Officer passed Ext.P10 order dated 19.9.2018, stating that petitioners failed to adduce evidence, hence Ext.P9 complaint is rejected.
5. The dispute raised in this writ petition as to the final voters list prepared pursuant to Ext.P12 notification issued by the State Co- W.P.(C)No.32712 of 2018
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operative Election Commission, is a dispute 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. 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 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 election.
6. Rule 35A of the Rules deals with the W.P.(C)No.32712 of 2018 :-6-:
procedure regarding conduct of election to the committee of Societies by the State Co-operative Election Commission. Ext.P8 voters list is one published by the 1st 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 1st 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 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.
7. In Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha, and another v. State of Maharashtra [(2001) 8 SCC W.P.(C)No.32712 of 2018 :-7-:
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 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. If there was a breach of rule or certain mandatory provisions of the rules were not complied with W.P.(C)No.32712 of 2018 :-8-:
while preparing of the electoral roll, the same could be challenged under Rule 81(d)(iv) of the Rules by means of an election petition. The preparation of electoral roll is part of the election process and if there is any breach of the rules in preparing the electoral roll, the same can be called in question after the declaration of the result of the election by means of an election petition before the tribunal.
8. 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 W.P.(C)No.32712 of 2018 :-9-:
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.
9. 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.32712 of 2018 :-10-:
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.
10. 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 W.P.(C)No.32712 of 2018 :-11-:
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 elections.
11. 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 W.P.(C)No.32712 of 2018 :-12-:
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.
12. Having considered the pleadings and materials on record and also the submissions made by the learned counsel on both sides, this Court finds that the challenge made in this writ petition against Ext.P10 order, whereby the objections raised by the 1st petitioner and others to the W.P.(C)No.32712 of 2018 :-13-:
preliminary voters list published pursuant to Ext.P12 election notification stands rejected, so also the disputes referred to in Exts.P5 and P7 are disputes which have to be raised before the Co- operative Arbitration Court, invoking Section 69 of the Co-operative Societies Act, by filing election petition within a period of one month from the date of election.
In such circumstances, this writ petition stands dismissed, leaving open all legal and factual contentions, without prejudice to the aforesaid right of the petitioners.
All pending interlocutory applications are closed.
Sd/-
ANIL K.NARENDRAN JUDGE ami/20.10.18 W.P.(C)No.32712 of 2018 :-14-:
APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BYLAWS OF THE KEEZHOOR SERVICE CO-OPERATIVE BANK NO. 323, KEEZHOOR, KOTTAYAM EXHIBIT P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE MULAKULAM GRAMA PANCHAYATH EXHIBIT P3 TRUE COPY OF THE MEMBERS LIST WHO ARE NOT ELIGIBLE FOR THE MEMBERSHIP EXHIBIT P4 TRUE COPY OF THE APPLICATION FILED BY PETITIONERS BEFORE 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF THE ORDER DATED 01.08.2017 EXHIBIT P6 TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE ORDER BEARING NO.CRP (2) 5090/2018 DATED 12.09.2018 EXHIBIT P8 TRUE COPY OF THE VOTERS LIST EXHIBIT P9 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE 1ST RESPONDENT EXHIBIT P10 TRUE COPY OF THE ORDER DATED 19.09.2018 EXHIBIT P11 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONERS BEFORE 1ST RESPONDENT EXHIBIT P12 TRUE COPY OF THE ELECTION NOTIFICATION PUBLISHED IN MALAYALA MANORAMA PAPER DATED 6.9.2018.
//TRUE COPY// ami/ P.A.TO JUDGE