Kerala High Court
6 vs By Advs.Sri.R.V.Sreejith on 8 July, 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
THURSDAY, THE 9TH DAY OF AUGUST 2018 / 18TH SRAVANA, 1940
WP(C).No. 26512 of 2018
PETITIONER(S)
C.SIVANKUTTY,
NEDIYAVARAILA VEEDU,ANTHIYOOR,BALARAMPURAM.P.O,
THIRUVANANTHAPURAM-695501.
BY ADVS.SRI.R.V.SREEJITH
SMT.G.MAHESWARY
RESPONDENT(S):
1. THE ELECTION COMMISSIONER,
KERALA STATE CO-OPERATIVE ELECTION COMMISSION,
VIKAS BHAVAN,THIRUVANANTHARUPAM:695033.
2. ANTHIYOOR SERVICE CO-OPERATIVE BANK LTD.NO.1166,
ANTHIYOOR, BALARAMAPURAM.P.O, THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY,PIN:695501.
3. THE RETURNING OFFICER,
ANTHIYOOR SERVICE CO-OPERATIVE BANK LTD.NO.1166,
ANTHIYOOR, BALARAMAPURAM.P.O,
THIRUVANANTHAPURAM-695501.
R1 & R3 BY Sr.GOVERNMENT PLEADER SMT.C.S.SHEEJA
R2 BY SRI.P.C.SASIDHARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-08-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 26512 of 2018 (L)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE IDENTITY CARD ISSUED TO THE
PETITIONER FROM THE 2ND RESPONDENT BANK
EXHIBIT P2 TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE
THIRUVANANTHAPURAM EDITION OF THE DESHABHIMANI
DAILY DATED 8.7.2018
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 16.07.2018
SUBMITTED BY THE PETITIONER BEFORE THE 1ST
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE COMPLAINTS FILED BY ONE
SRI.GIREESH KUMAR, MEMBERSHIP NO.4510
EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES OF THE FINAL
VOTERS LIST OF THE 2ND RESPONDENT
EXHIBIT P6 TRUE COPY OF THE CORRECTION PUBLISHED IN THE
THIRUVANANTHAPURAM EDITION OF DESHABHIMANI
DAILY ON 10.7.2018
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 16.7.2018.
RESPONDENTS' EXHIBITS :
NIL
//TRUE COPY//
P.A.TO JUDGE
ami/
ANIL K.NARENDRAN, J.
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W.P .(C)No.26512 of 2018
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Dated this the 9th day of August, 2018
JUDGMENT
The petitioner, who is the Member of the 2 nd respondent Co- operative Society, which is a Society registered under the Kerala Co-operative Societies Act, with membership No.2612, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1st respondent State Co-operative Election Commission to delete those who have illegally obtained membership in the 2 nd respondent Society and those who died, from Ext.P5 final voters list. The further relief sought for is a writ of mandamus commanding the respondents to adjourn the election to the Managing Committee of the 2 nd respondent Society, which is scheduled to be held on 12.8.2018 in terms of Ext.P2 election notification dated 8.7.2018, till the final voters list is prepared, after deleting the name of those who are either dead or acquired membership illegally. The petitioner has also sought for a writ of mandamus commanding the 1 st respondent to consider and pass appropriate orders on Ext.P3 W.P.(C)No.26512 of 2018 :-2-:
representation dated 16.7.2018, as expeditiously as possible, at any rate within a time frame to be fixed by this Court and to adjourn the election till the final list is prepared.
2. On 6.8.2018 when this writ petition came up for admission, the learned Senior Government Pleader sought time to get instructions.
3. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 and 3 and also Sri.P.C.Sasidharan, the learned counsel who entered appearance for the 2nd respondent Society.
4. The pleadings and materials on record would show that election to the Managing Committee of the 2 nd respondent Society is scheduled to be held on 12.8.2018 in terms of Ext.P2 election notification dated 8.7.2018 (read with Ext.P6 erratum notification dated 10.7.2018) issued by the 1 st respondent State Co-operative Election Commission. Now, the grievance of the petitioner in this writ petition is that some of the members included in Ext.P5 final voters list are persons residing outside the area of operation of the 2 nd respondent Society. The petitioner has got a further grievance that some dead persons are included W.P.(C)No.26512 of 2018 :-3-:
in Ext.P5 final voters list. The petitioner moved Ext.P7 representation dated 16.7.2018 before the 1 st respondent State Co-operative Election Commission and thereafter moved this Court in this writ petition, seeking various reliefs.
5. As per the notification published by the 1 st respondent State Co-operative Election Commission, a preliminary voters list was published by the Electoral Officer on 9.7.2018 at 11.00 a.m. in the notice board of the 2nd respondent Society. The time limit prescribed for submission of objections, if any, to the preliminary voters list was from 11.00 a.m. on 9.7.2018 till 5.00 p.m. on 16.7.2018. The Electoral Officer conducted a hearing on 17.7.2018 from 11.00 a.m. onwards and thereafter, published Ext.P5 final voters list on 18.7.2018. In the writ petition, the petitioner has no case that within the time limit stipulated in Ext.P2 election notification, he has submitted any objections to the preliminary voters list published on 9.7.2018.
6. If the petitioner is having any dispute in connection with the election to the Managing Committee of the 2 nd respondent Society, which is scheduled to be held on 12.8.2018, in terms of Ext.P2 election notification dated 8.7.2018 issued by W.P.(C)No.26512 of 2018 :-4-:
the State Co-operative Election Commission, such dispute 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 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. Ext.P5 final voters list is one published by the 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 Ext.P5 final voters list published by the Electoral Officer, in exercise of his powers under under sub-rule (4) of Rule 35A of W.P.(C)No.26512 of 2018 :-5-:
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 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 W.P.(C)No.26512 of 2018 :-6-:
mandatory provisions of the rules were not complied with 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 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 W.P.(C)No.26512 of 2018 :-7-:
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 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 W.P.(C)No.26512 of 2018 :-8-:
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.
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 of the society shall be entertained by the Co-operative Arbitration Court unless it is referred to it within one month from W.P.(C)No.26512 of 2018 :-9-:
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. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, if the petitioner has any dispute in relation to Ext.P5 final voters list published by the Electoral Officer, he has to raise such dispute before the Co-operative Arbitration Court, by invoking the statutory remedy available under Section 69 of the Act, within 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. Therefore, this writ petition is liable to be dismissed, without prejudice to the right of the petitioner to raise any dispute arising in connection with the election before the Co-
operative Arbitration Court, by invoking the statutory remedy available under Section 69 of the Act, within one month from the W.P.(C)No.26512 of 2018 :-10-:
date of election.
In the result, this writ petition is dismissed, however without prejudice to the right of the petitioner to raise any dispute arising in connection with the election conducted pursuant to Ext.P2 election notification issued by the State Co- operative Election Commission to the Managing Committee of the 2nd respondent Society before the Co-operative Arbitration Court, by invoking statutory remedy available under Section 69 of the Act, within a period of one month from the date of that election.
Sd/-
ANIL K.NARENDRAN JUDGE ami/9.8.18 //True copy// P.A.to Judge