Kerala High Court
A.R.Poulose vs The Electoral Officer on 21 November, 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
WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940
WP(C).No. 37111 of 2018
PETITIONER:
A.R.POULOSE,
AGED 57 YEARS, MEMBER NO.4185,
OONNUKAL SERVICE CO-OPERATIVE BANK LTD. NO. E-58,
OONNUKAL P.O., PIN - 686 693,
ERNAKULAM DISTRICT,
RESIDING AT APPANCHIRA HOUSE,
PERUMANNOOR P.O.- 686 693, ERNAKULAM DISTRICT.
BY ADV. SRI.GEORGE POONTHOTTAM
RESPONDENTS:
1 THE ELECTORAL OFFICER,
(ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES(GENERAL), KOTHAMANGALAM,
OONNUKAL SERVICE CO-OPERATIVE BANK LTD. NO. E-58,
OONNUKAL P.O., ERNAKULAM DISTRICT-686 693.
2 THE RETURNING OFFICER/UNIT INSPECTOR,
OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES GENERAL, KOTHAMANGALAM,
OONNUKAL SERVICE CO-OPERATIVE BANK LTD. NO. E-58,
OONNUKAL P.O., ERNAKULAM DISTRICT-686 693.
3 OONNUKAL SERVICE CO-OPERATIVE BANK LTD. NO. E-58,
OONNUKAL P.O., ERNAKULAM DISTRICT - 686 693
REPRESENTED BY ITS SECRETARY.
4 THANKACHAN P. JOHN,
PARAMKUNNEL HOUSE,
THALAKKOD P.O., NERYAMANGALAM VILLAGE,
KOTHAMANGALAM, ERNAKULAM - 686 693.
BY ADVS.SMT.M.ISHA
SRI.AMAL KASHA
R1&R2 SMT MABLE C.KURIEN, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
21.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 37111 of 2018
-2-
JUDGMENT
The petitioner, who is a member of the 3 rd respondent Service Co-operative Bank, which is a Co-operative 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 an order for exclusion of the persons, who are included in Ext.P3 list of members, from the final voters list for the election to the Managing Committee of the Society scheduled on 25.11.2018 as per Ext.P1 election notification or in the alternative, direct collection of their votes in a separate box and to count them only after proper adjudication regarding their right for inclusion in the voters list. The petitioner has also sought for a declaration that the 1st respondent Electoral Officer ought to have verified with the Society as to whether the persons included in Ext.P3 were enrolled based on an application and after following the formalities and removed them from the voters list on a finding that there was no application by them to WP(C).No. 37111 of 2018 -3- become members of the Society.
2. On 15.11.2018, when this writ petition came up for admission, this Court admitted the matter on file. The learned Government Pleader took notice for respondents 1 and 2. Urgent notice was ordered to respondents 3 and 4 through special messenger.
3. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 and 2, the learned counsel for the 3 rd respondent and also the learned counsel for the 4th respondent.
4. The pleadings and materials on record would show that election to the Managing Committee of the 3 rd respondent Society is scheduled to be held on 25.11.2018 in terms of Ext.P1 election notification dated 28.09.2018 issued by the State Co-operative Election Commission. In terms of Ext.P1 notification, the 1st respondent, who is the Electoral Officer, published a preliminary voters list on 22.10.2018. After considering the objections received, the final voters list was published on 31.10.2018. According to WP(C).No. 37111 of 2018 -4- the petitioner, in terms of Ext.P1 notification, he submitted Ext.P2 objection before the 1 st respondent Electoral Officer against inclusion of the persons mentioned in Ext.P3 list, contending that their inclusion as members in the voters list, on the strength of the decisions of the Managing Committee of the Society taken in the year 2013, is legally unsustainable. However, without considering the objection to the preliminary voters list, the 1 st respondent Electoral Officer published the final voters list on 31.10.2018.
5. The learned counsel for the petitioner would contend that the inclusion of 1104 persons included in Ext.P3 list, in the final voters list published by the 1 st respondent Electoral Officer is per se illegal and as such, interference of this Court is warranted. The learned counsel would also point out that the 4th respondent, who is one among 1104 members included in Ext.P3 list is impleaded in this writ petition in a representative capacity.
6. The learned Government Pleader appearing for respondents 1 and 2, on instructions, would submit that, WP(C).No. 37111 of 2018 -5- after considering the objections made by the petitioner and one Shibu P.M. to the preliminary voters list, the 1st respondent Electoral Officer published final voters list on 31.10.2018. The 1st respondent has also passed an order No.K.T.988/2018 dated 30.10.2018 rejecting the objections raised to the preliminary voters list. During the course of arguments, the learned Government Pleader has made available for the perusal of this Court a copy of the said order dated 30.10.2018.
7. The learned counsel for the 3rd respondent Bank would point out that the inclusion of 1104 members in the voters list, who have remitted enhanced share value on the strength of the decision taken by the Managing Committee of the Society in the year 2013 is perfectly legal and in the absence of any challenge made to that decision, the objections now raised by the petitioner against their inclusion is legally unsustainable.
8. After referring to the averments in the writ petition, the learned counsel for the 4th respondent would WP(C).No. 37111 of 2018 -6- point out that, the petitioner has no consistent case as to the ineligibility of the 4th respondent or any other members who are included in Ext.P3 list.
9. Having considered the submissions made by the learned counsel on both sides, this Court finds that, if the petitioner is having any dispute as to the final voters list published in terms of Ext.P1 election notification in connection with the election to the Managing Committee of the 3rd respondent Bank, which is scheduled to be held on 25.11.2018, 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, 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 WP(C).No. 37111 of 2018 -7- 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.
10. 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, WP(C).No. 37111 of 2018 -8- finalisation of electoral rolls, holding of election and declaration of the result of election.
11. 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 the election.
12. Part IXB of the Constitution of India, inserted by the Constitution (97th Amendment) Act, 2011 deals with WP(C).No. 37111 of 2018 -9- 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 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 WP(C).No. 37111 of 2018 -10- 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 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. Having considered the submissions made by the learned counsel on both sides and the pleadings and materials on record, conclusion is irresistible that if the petitioner is having any dispute in connection with the election to the Managing Committee of the 3 rd respondent Bank, he has to raise such disputes before the Co-operative Arbitration Court by invoking the statutory remedy available under Section 69 of the Act, within a period of one WP(C).No. 37111 of 2018 -11- month from the date of election. In such circumstances, the petitioner cannot approach this Court under Article 226 of the Constitution of India seeking a writ of mandamus commanding the State Co-operative Election Commission to postpone the election to the Managing Committee of the 3 rd respondent Bank and to conduct election after removing certain members from the final voters list.
15. The learned counsel for the petitioner would submit that, since the petitioner has raised objection as to the membership of 1104 persons included in Ext.P3 list, the 2nd respondent Returning Officer may be directed to keep the vote casted by such members in separate box and count them only after proper adjudication regarding their right for inclusion in the voters list. Though it is averred in the writ petition that the 4th respondent is arrayed, in representative capacity, the petitioner has not filed any application for that purpose and to take out notice by paper publication.
16. In the result, this writ petition is dismissed, WP(C).No. 37111 of 2018 -12- without prejudice to the right of the petitioner to raise any dispute arising in connection with the election to the Managing Committee of the 3rd respondent Bank, conducted in terms of Ext.P1 election notification issued by the State Co-operative Election Commission, 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 any dispute raised by the petitioner under Section 69 of the Act, in connection with the election to the Managing Committee of the 3 rd respondent Bank, untrammelled by any such observations.
Sd/-
ANIL K.NARENDRAN JUDGE bpr WP(C).No. 37111 of 2018 -13- APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ELECTION
NOTIFICATION NO.E(2)
7189/2018/S.C.E.C. DATED 28.09.2018
ISSUED BY THE STATE CO-OPERATIVE
ELECTION COMMISSION.
EXHIBIT P2 TRUE COPY OF THE COMPLAINT GIVEN BY
THE PETITIONER DATED 29.10.2018 ALONG
WITH THE LIST OF MEMBERS REMOVED BY
THE ADMINISTRATIVE COMMITTEE.
EXHIBIT P3 TRUE COPY OF THE LIST OF MEMBERS
REMOVED BY THE ADMINISTRATIVE
COMMITTEE AND RE-ADMITTED BY THE
BOARD.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P.A. TO JUDGE