Kerala High Court
N.M.Remesan vs Philomina Kakkattil on 24 November, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
THURSDAY, THE 7TH DAY OF APRIL 2016/18TH CHAITHRA, 1938
WP(C).No. 11521 of 2016 (M)
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PETITIONER:
N.M.REMESAN, S/O.VELAYUDHAN, 'SAGARA',
VILAMANA, IRITTY POST, KANNUR DISTRICT,
PRESIDENT OF THE COMMITTEE UNDER
ORDER OF REMOVAL, KILIANTHARA SERVICE
CO-OPERATIVE BANK, KILIANTHARA POST,
KANNUR DISTRICT.
BY ADVS. SRI.M.SASINDRAN
SRI.V.VENUGOPAL
RESPONDENTS:
1. PHILOMINA KAKKATTIL, W/O.SEBASTIAN KAKKATTIL,
AGED 62 YEARS, KAKKATTIL HOUSE, P.O.KILIYANTHARA,
KANNUR DISTRICT-670 706.
2. THE ELECTORAL OFFICER, KILIYANTHARA SERVICE
CO-OP. BANK LTD.NO.C 50, P.O.KILIYANTHARA-670 706,
THE OFFICE INSPECTOR, OFFICE OF THE ASSISTANT
REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
KUTHUPARAMAB, KANNUR DISTRICT.
3. THE RETURNING OFFICER, KILIYANTHARA SERVICE CO-OP.
BANK LTD.NO.C 50, P.O.KILIYANTHARA-670706, THE OFFICE
INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF
CO-OP. SOCIETIES (GENERAL), KUTHUPARAMBA,
KANNUR DISTRICT.
4. KILIANTHARA SERVICE CO-OPERATIVE BANK LTD.NO.C 50
KILIANTHARA POST-670 706, KANNUR DISTRICT-REP. BY ITS
SECRETARY.
5. THE SECRETARY, KILIANTHARA SERVICE CO-OPERATIVE BANK,
KILIANTHARA POST-670 706, KANNUR DISTRICT.
6. THE CO-OPERATIVE ARBITRATION COURT (NORTHERN),
KOZHIKODE-673 001.
7. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
KANNUR 670 001.
8. THE PART-TIME ADMINISTRATOR
KILIANTHARA SERVICE CO-OPERATIVE BANK,
KILIANTHARA-670 706, KANNUR DISTRICT,
(UNIT INSPECTOR, IRITTY, OFFICE OF THE
ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G),
KOOTHUPARAMBA).
9. THE KERALA CO-OPERATIVE TRIBUNAL,
THIRUVANANTHAPURAM-695 001,
REPRESENTED BY ITS SECRETARY.
R1 BY ADVS. SRI.V.G.ARUN
SRI.T.R.HARIKUMAR
BY SPL. GOVT. PLEADER SRI.D.SOMASUNDARAM
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN WP(C).No. 11521 of 2016 (M)
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ELECTION DECLARATION DATED
24.11.2013 PUBLISHED BY THE RETURNING OFFICER.
EXHIBIT P2 A TRUE COPY OF THE PETITION FILED BY THE FIRST
RESPONDENT BEFORE THE ARBITRATION COURT.
EXHIBIT P3 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY
RESPONDENTS 4 TO 10 AND 14 IN ARC 69/13 OF THE ARBITRATION COURT.
EXHIBIT P4 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE
RESPONDENTS 11 TO 13 IN ARC 69/13.
EXHIBIT P5 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE
RETURNING OFFICER, THE FIRST RESPONDENT IN THE ARC.
EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 23.2.2016 IN ARC 69/13 OF
THE CO-OPERATIVE ARBITRATION COURT (NORTHERN), KOZHIKODE.
EXHIBIT P7 A TRUE COPY OF THE ORDER NO.1419/16/O DATED 23.2.2016
ISSUED BY THE JOINT REGISRAR.
EXHIBIT P7(a) TRUE ENGLISH TRANSLATION OF EXHIBIT-P7.
EXHIBIT P8 A TRUE COPY OF THE APPEAL NO.23/2016 FILED BY THE
PETITIONER AND OTHERS BEFORE THE KERALA CO-OPERATIVE TRIBUNAL.
EXHIBIT P9 A TRUE COPY OF THE STAY APPLICATION I.A.NO.11 OF 2016
IN APPEAL NO.23/2016, FILED ALONG WITH EXT.P8 APPEAL.
EXHIBIT-P9(a) A TRUE COPY OF THE COUNTER FILED BY THE FIRST
RESPONDENT TO THE EXT.P9 PETITION.
EXHIBIT P10 A TRUE COPY OF THE ORDER DATED 8.3.2016 IN W.P.(C) NO.
7531 OF 2016.
EXHIBIT P11 A TRUE COPY OF THE ORDER DATED 18.3.2016 IN I.A. NO.11 OF
2016 IN APPEAL NO.23 OF 2016 OF THE KERALA CO-OPERATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
RESPONDENT'S EXHIBITS: NIL.
/TRUE COPY/
P.S. TO JUDGE
Dama Seshadri Naidu, J.
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W.P.(C)No.11521 of 2016 M
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Dated this the 7th day of April, 2016
JUDGMENT
The election is held and a managing committee elected; it is put in the saddle. A person whose nomination has been rejected files an election petition and emerges successful: The Arbitration Court declares the rejection of her nomination to be illegal. Consequently, the whole election is set aside, and a fresh election is ordered. The elected members of the managing committee file appeal. The award is suspended. The question is, can the managing committee, until the disposal of the appeal, be allowed to administer the Bank?
2. The fourth respondent Bank elected its managing committee on 24.11.2013. Since the strength of the committee is eleven, the breakup of the membership is as follows: General Category-5; Depositors-1; Scheduled Caste/ WPC 11521/16 2 Scheduled Tribe-1; Members having less than one acre-1 and Women-3. The eleven members elected constituted a managing committee, of which the petitioner was the President.
3. As seen from the record, the Returning Officer at the threshold rejected the first respondent's nomination. The rejection was because she defaulted in repaying the loan as the legal heir of her husband, the original borrower. Aggrieved, she filed an election petition before the sixth respondent, which passed Exhibit P6 award declaring that the rejection of the first respondent's nomination was unsustainable. Having declared thus, the sixth respondent further held that the entire election was vitiated. It, therefore, ordered re-election. That apart, it directed that the management of the Bank be put in the hands of an Administrator to be appointed.
4. Aggrieved, the petitioner and other members of the managing committee initially approached this Court by WPC 11521/16 3 filing W.P.(C)No.7531/2016. Nevertheless, pending the writ petition, they filed Exhibit P8 appeal before the Kerala Co- operative Tribunal, in which they have also filed Exhibit P9 interlocutory application for a stay of the award.
5. Soon, the Tribunal passed Exhibit P11 order, assailing which the petitioner, the President of the erstwhile managing committee, has filed the present writ petition.
6. Sri.M.Sasindran, the learned counsel for the petitioner, has strenuously contended that, first, the award of the Arbitration Court cannot be sustained, especially, because it had set aside the entire election. But the issue was only concerning the rejection of nomination of one particular contestant. Second, the Arbitration Court ought not to have issued any direction that the Bank be managed by an Administrator rather than by a duly elected managing committee, for the election of its members has not at all been the subject of the election petition. WPC 11521/16 4
7. Drawing my attention to the Exhibit P11 interim order passed by the Appellate Tribunal, the learned counsel contends that the Tribunal has rightly suspended the operation of the award. Having done thus, it ought not to have, according to the learned counsel, further directed that an Administrator, rather than the duly elected managing committee, should look after the Bank. In elaboration of his submissions, the learned counsel has further submitted that no reasons emanate from the impugned order why the entire democratically elected committee be dismantled on a mere possibility of the first respondent's getting elected in future.
8. Sri.D.Somasundaram, the learned Special Government Pleader, with equal vehemence, has contended that the law is well settled to be disputed that once a nomination is improperly rejected, it goes to the root, and the entire election gets vitiated. To support his submissions, the learned Government Pleader has placed reliance on WPC 11521/16 5 Kesavankutty v. Paulose1.
9. The learned Special Government Pleader has also found fault with the petitioner's approach: his rushing to this Court without waiting for the conclusion of the appeal before the Tribunal. Contending that such course of action is impermissible, the learned Special Government Pleader has placed reliance on Raghavan M.V. v. Returning Officer2.
10. In elaboration of his submissions, the learned Special Government Pleader has placed before this Court the proceedings issued by the Joint Registrar appointing a Unit Inspector as the Administrator. He specifically contends that by the time the petitioner and other members approached either this Court or the Appellate Tribunal, the award of the Arbitration Court had been partially implemented and an Administrator was appointed. He has, in the alternative, submitted that this Court may issue a 1 (2005 (2) KLTSN 66 2 2009 (2) KHC 47 (DB) WPC 11521/16 6 direction to the Appellate Tribunal to conclude the proceedings at the earliest, instead of interfering with the interim order passed by it.
11. Sri.V.G.Arun, the learned counsel for the first respondent, has drawn my attention to the relief sought in the election petition. According to him, the first respondent has sought a declaration concerning not only what is said to be the illegal rejection of her nomination but also the legality of the very election. In continuation, he has also submitted that the arbitration award is unexceptionable.
12. Laying specific emphasis on Section 28 of the Kerala Co-operative Societies Act, the learned counsel would further contend that the election is held for the committee and not for an individual member. As such, once there is any fault found, the entire election gets vitiated. And it is too well established to be caviled about. Reply:
13. In reply, the learned counsel for the petitioner WPC 11521/16 7 has submitted that the facts of Kesavankutty (supra) are entirely different. Taking me through a copy of the full judgment--what has been cited initially at the Bar was Short Notes--the learned counsel would contend that in Kesavankutty nine nominations were rejected. Before the election could take place, this Court had issued an interim direction that the election to be held and the result to be declared should be subject to the outcome of the writ petition. Only under those particular circumstances has this Court come to a conclusion that the election must be set aside in its entirety and not partially.
14. Placing reliance on Section 28(5) of the Act, the learned counsel has further contended that even with death or resignation of a member, the law does not contemplate holding a fresh election in its entirety. On the contrary, only to the extent of that particular vacancy, there could be either nomination or election. Accordingly, he urged this Court to allow the writ petition.
WPC 11521/16 8 Issue:
15. Has the Appellate Tribunal been justified in letting an Administrator look after the affairs of the Bank at the expense of a duly elected Managing Committee? Discussion:
16. Indeed, the issue lies in a narrow compass; the facts are admitted. This Court, before proceeding further, desires to remind itself that a statutory appeal is pending before a competent appellate forum, and it does not intend to stultify the appeal proceedings. It therefore confines its discussion to the legality and sustainability of Exhibit P11 order passed by the Tribunal.
17. In the present instance, the first respondent's claim was accepted by the Arbitration Court, which declared that rejection of her nomination was unsustainable. Consequently, it has set aside the entire election and ordered reelection. Because the entire election has been set aside, the course adopted by the Arbitration WPC 11521/16 9 Court--holding fresh election--may be unexceptionable.
18. That said, I may proceed further to examine the proceedings before the appellate forum. In Exhibit P9 interlocutory application filed by the petitioner and other members, the Appellate Tribunal passed Exhibit P11 order. It pays to extract, to the extent relevant, the said impugned order, which reads as follows:
"In the result,
1. Application partly allowed and the award of Co-operative Arbitration Court, Kozhikode dated 23.02.2016 in A.R.C.69/2013 setting aside declaration of result dated 24.11.2013 and direction to conduct fresh election stayed till disposal of this Appeal. It is made clear that Joint Registrar of Co-operative Societies (General), Kannur assumed the administrative control of Kiliyanthra Service Co-operative Bank Ltd.No.C 50, Kiliyanthara, Kannur District as per the direction of the Co-operative Arbitration Court, Kozhikode can continue the administrative control of the Bank till further order of this Tribunal in Appeal considering the interest of justice and well management of the Bank.
2. Parties to Appeal are directed to be ready for final argument in Appeal in the next posting date 12.05.2016.
3. Service copy of the order to parties as per Rule."WPC 11521/16 10
19. As has been contended by the learned Special Government Pleader, the Appellate Tribunal has, inter alia, observed that if the order of the Arbitration Court as regards the appointment of Administrator had already been implemented, the arrangement thus made shall continue. Further, in the opinion of the Tribunal, once the award is implemented, the Joint Registrar will initiate steps to conduct fresh election. In the meanwhile, if the Tribunal finds the award erroneous, all the Joint Registrar's efforts to hold a fresh election will be of no avail. Under those circumstances, the Tribunal seems to have passed an order staying the fresh election.
20. As I have already observed at the outset, I do not intend to get into the merits of the matter. At the cost of repetition, I observe that I desire to examine the legality of Exhibit P11 alone.
21. A scrutiny of Exhibit P11 order reveals that the Appellate Tribunal has stayed two of the direction in the WPC 11521/16 11 award: (1) the nullification of the election result dated 24.11.2013; and also (2) the direction to conduct a fresh election.
22. I think there is considerable force in the contention of the learned counsel for the petitioner that none of the members of the managing committee recently elected face any allegation either concerning their conduct as the members of the managing committee or as a matter of any procedural defects in their election. In other words, they have been duly elected.
23. We may keep aside for a while the issue of invalidating the election in its entirety owing to the rejection of only one particular person's nomination. The election of thirteen members has been set at naught only collaterally. Otherwise, the members do not suffer any inherent defect or shortcoming in their accession to the managing committee. In other words, the election of the members of the managing committee has never been called WPC 11521/16 12 in question for any legal shortcoming that can be attributed to the successful candidates.
24. Viewed from another perspective, I may further observe that a Society being run by the democratically elected members is the norm and that by an Administrator is an exception. Unless there are compelling reasons, such as the misconduct of the members of the committee, their position shall not be easily interfered with.
25. Yet an alternative view can be taken: Once the invalidation of an election is stayed, ipso facto, the consequences flowing therefrom shall have their complete run. Put it pithily, the suspension of the managing committee collaterally without interdicting the election falls foul of the constitutional mandate. Article 243-ZL of the Constitution, incorporated through the 97th constitutional amendment, is emphatic that notwithstanding anything contained in any law for the time being in force, no Board shall be superseded or suspended for a period exceeding six WPC 11521/16 13 months. In the present instance, the suspension of the Board, to me, is impermissible even for six months--the reasons are not far to seek as have already been set out.
26. Obviating further discussion, I may observe that the very Tribunal has stayed the "setting aside declaration of result dated 24.11.2013 and direction to conduct fresh election" till the disposal of the appeal. Once the invalidation of the election is stayed, the validity of the election outcome remains unaffected. The natural corollary ought to be that whatever be the position prevailing before Exhibit P6 award should continue to hold the field.
27. Absent any personal shortcoming or procedural lapses vis-a-vis the elected members, preventing them from being at the helm of the affairs of the bank is impermissible, at least, till the disposal of the appeal and, of course, subject to its result. What weighed with the Tribunal seems to be that pursuant to Exhibit P11 award, the authorities have already appointed an Administrator. May be true. But WPC 11521/16 14 it is not a step irreversible; it is interim. It cannot be at the cost of the duly elected members, whose tenure has, now, even constitutional cognizance.
28. Indeed, in Kesavankutty (supra), a learned Division Bench of this Court has emphatically held that once it is found that rejection of the nomination is unsustainable, the election that ensued gets vitiated in its entirety. As I have already observed, it may not be relevant for me to have a different view given the emphatic pronouncement of the learned Division Bench. What was relied on was a short note of the judgement, though.
29. Still, to be fair to the petitioner, the learned counsel, placing a copy of the full judgment, has brought to my notice the peculiar circumstances of the case in which the judgment was rendered. In fact, nine nominations were rejected. Before the elections could be held, there was a writ petition in which an interim direction was given clarifying that the election to be held and all other WPC 11521/16 15 consequential steps should be subject to the result of the writ petition.
30. In so far as the ratio of Raghavan (supra) is concerned, another learned Division Bench of this Court has deprecated the practice of rushing to this Court before the authorities could take a decision on an issue. In the present instance, the petitioner cannot be accused of rushing to the Court. He did file a statutory appeal, invite an order, and finally approach this Court. Therefore, I am of the opinion that the ratio of the judgment in Raghavan (supra) may have no application to the facts of this case.
31. In the facts and circumstances, without prejudice to the rights of either of the parties before the Appellate Tribunal, this Court, in partial modification of Exhibit P11 order, declares thus: because the finding of setting aside the election has been suspended by the Appellate Tribunal, it is but inevitable that the duly elected members are to be put back at the helm of the affairs of the Bank. The balance WPC 11521/16 16 of convenience, therefore, is in the petitioner's favour.
32. Further, it is hyper-technical to hold that by the time the petitioner and other members could file an appeal, the awards came to be partially implemented. It would lead to perversity, working out immense prejudice to the petitioner and other members, who have been duly elected.
33. I, therefore, further declare that the authorities shall ensure that by recalling the Administrator's appointment, they put the petitioner and other members back in their position pending disposal of the appeal before the Appellate Tribunal. It is, however, open for the parties to the appeal to urge the appellate forum to conclude the proceedings at the earliest.
With the above directions, the writ petition stands disposed of. No order on costs.
Dama Seshadri Naidu, Judge tkv 'C.R.'