Kerala High Court
Rahil R. Nath vs The Kerala State Co-Operative Election ... on 1 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
THURSDAY ,THE 01ST DAY OF NOVEMBER 2018 / 10TH KARTHIKA, 1940
WP(C).No. 32979 of 2018
PETITIONER/S:
RAHIL R. NATH
MEMBER NO. 22111,
ARAYOOR SERVICE CO OPERATIVE BANK,
ARAYOOR, NEYYATTINKARA,
RESIDING AT LOTUS VILLA, KATTILVILA,
AMARAVILA PO, NEYYATTINKARA
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENT/S:
1 THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION
REPRESENTED BY ITS SECRETARY,
OFFICE OF THE ELECTION COMMISSION,
THIRUVANANTHAPURAM, 695001
2 ELECTORAL OFFICER
ARAYOOR SERVICE CO-OPERATIVE BANK LTD.NO.692,
ARAYOOR,NEYYATTINKARA-695121.
3 JOINT REGISTRAR(GENERAL)OF CO-OPERATIVE SOCIETIES,
NEYYATTINKARA-695121.
4 ARAYOOR SERVICE CO-OPERATIVE BANK LTD.NO.692,
REPRESENTED BY ITS SECRETARY,
ARAYOOR,NEYYATTINKARA-695121.
R1-R3 BY SRI K.P.HARISH,SENIOR GOVERNMENT PLEADER
R4 BY SRI.P.N.MOHANAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
WP(C).No. 32979 of 2018
JUDGMENT
The petitioner who is a member in the 4th respondent Service Co-operative Society, which is a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969 has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to consider the objections preferred by the petitioner against the preliminary voter's list in an objective manner and pass a speaking order on the said objection and finalise the voter's list in accordance with the bye-laws of the said Society by removing ineligible members. The petitioner has also sought for a writ of mandamus commanding the respondents to communicate the decision taken on his objection preferred to the preliminary voter's list; and a writ of mandamus commanding the respondents not to proceed with the election to the Managing Committee of the 4th respondent Society until the voter's list is prepared strictly in 3 WP(C).No. 32979 of 2018 accordance with the bye-law of the said Society excluding all ineligible members.
2. On 09.10.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 3. Urgent notice on admission by Special Messenger was ordered to the 4th respondent Society returnable by 12.10.2018. The Senior Government Pleader was directed to get instructions.
3. A counter affidavit has been filed by the 1 st respondent State Co-operative Election Commission. Paragraphs 4 to 6 of the counter affidavit reads thus:-
4. It is submitted that following receipt of proposal to conduct election in the 4th respondent Bank, this Respondent Election Commission issued Exhibit P1 Election Notification. Consequent to issue of Exhibit P1, this respondent received complaint from the writ petitioner, that more than five thousand ineligible persons are included in the voters list and all such persons may be removed to ensure free and fair election in the said Bank. The said complaint was forwarded to the 2nd Respondent Electoral Officer to furnish report urgently. 4 WP(C).No. 32979 of 2018
5. It is submitted that in the Report vide letter No.AR(1) 3028/18 dated 23-10-2018, the 2nd Respondent Electoral Officer (Assistant Registrar of Co- operative Societies (General), Neyyattinkara) reported that the writ petitioner was heard in connection with the complaint made by him that two thousand three hundred and eighty (2380) ineligible persons have been included in the final voters list. It has been reported that five hundred and eleven (511) persons were removed from the final voters list, since there was no record to prove that those persons either permanently reside or possess property within the area of operation of the society. But regarding the remaining one thousand eight hundred and sixty nine (1869) persons who are alleged to have been included in the final voters list without eligibility, the 2nd Respondent, further reported that owing to dearth of time their particulars could not be verified, for which much more time is required.
6. It is submitted that the Report furnished by the 2nd Respondent prima facie reveals that ineligible persons have been included in the final voters list. Thought 511 such persons have been removed from the list, in the case of 1869 persons veracity of their eligibility to vote in the election is yet to be decided. Without proper verification, the possibility of inclusion of ineligible persons in the final voters list cannot be ruled out. In order to ensure a free and fair election as well as to protect democracy in the 4th respondent Bank, it is highly necessary to examine eligibility of all the 5 WP(C).No. 32979 of 2018 above said 1869 persons to vote. As election is scheduled to be conducted on 04.11.2018, as reported by the 2nd Respondent, practically it is quite impossible to decide eligibility of all those 1869 persons to vote in the election at this stage of the election. This Respondent Election Commission is of the considered opinion that it would be just and proper to conduct the election only after verifying eligibility of all those remaining 1869 persons to vote based on scrutiny of records to prove their eligibility. Once such exercise is completed, election can be conducted, on receipt of fresh resolution from the Bank to conduct election by following the time frame provided under the Kerala Co-operative Societies Act/Rules through the Register of Co-operative Societies, in which case, the procedure from the stage of publication of final voters list shall be commenced afresh.
4. The 4th respondent Society has filed a counter affidavit opposing the reliefs sought for in this writ petition.Paragraph 5 of the said counter affidavit reads thus:
5. As per the election schedule preliminary voters list was published on 01.10.2018. The petitioner who is a practicing Advocate submitted Ext.P2 which is said to be his objection to the voters list. On verification of the Ext.P2, which is authored by a Lawyer, it can be seen that it is cryptic one without any details and without any prayer and without any 6 WP(C).No. 32979 of 2018 address to whom it is addressed and without his signature and date. Any how his objection was considered by the Electoral Officer on 09.10.2018 from 11 a.m to 9 p.m and considered his objections, which was orally submitted as well as in black and white and removed 511 members from the voters list. A true copy of the relevant pages of the votes list is produced and marked as Exhibit R4(a). The Electoral Officer has power to verify the objections placed before him and to consider the same in accordance with law as held by this Court. On going through the Ext.P2 it can be seen that he has mentioned names of 12 persons who are members alleging that they are residing nearby ward of Parassala Grama Panchayath, which is the border, outside the area, of operation. In Ext.P2 there is no request to remove them from the voters list. At the time of considering the objection he raised names of several other persons. That was also considered by the Electoral Officer and removed 511 members from the voters list. The committee issued membership to the 12 persons mentioned in the Ext.P2 as they have either landed properties or residing, within the area of operation of the bank. At the time of hearing objection to the voters list by the Electoral Officer, the bank produced those details in respect of 5 members and they have been retained in the voters list and removed 7 from the list, even though they are residing within the area but cannot produce the details of the landed properties, at the time of verification. One of the condition for issuing membership is that applicants should be a residence within the area of operation as provided in Rule 16(2) 7 WP(C).No. 32979 of 2018
(b) of the KCS Rules. While issuing the membership those details are satisfied by the committee, on verification though concerned managing committee member from the ward. Even though they are removed from the voters list they will be in the membership until they are removed from the membership as provided in Rule 16(3) or Rule 16(4) of the KCS Rules.
5. Today, when the case is taken up for consideration, the learned Senior Government Pleader has made available for the perusal of this Court, a copy of the objection dated 06.10.2018 made by the petitioner before the 2 nd respondent Electoral Officer against the preliminary voter's list.
6. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3 and also the learned counsel for the 4th respondent Bank.
7. The pleadings and materials on record would show that election to the Managing Committee of the 4th respondent Society is scheduled to be held on 04.11.2018 in terms of Ext.P1 Election notification issued by the State Co-operative Election 8 WP(C).No. 32979 of 2018 Commission. As per the said notification, the preliminary voter's list was published on 01.10.2018, inviting objections if any, between 11.00 a.m on 01.10.2018 to 5.00 p.m on 08.10.2018. The time fixed for consideration of objections, if any, to the preliminary voter's list was from 11.00 a.m to 1.00 p.m on 09.10.2018. According to the petitioner, after the preliminary voter's list was published by the 2nd respondent Electoral Officer, the petitioner submitted an objection dated 06.10.2018 pointing out that large number of ineligible persons are included in the preliminary voter's list. Along with the said objection, the petitioner has furnished the list of more than 2400 ineligible persons who are included in the preliminary voters list. It is averred in paragraph 2 of the writ petition that the details furnished along with the objection are with all definiteness including the details of the present address and how they acquired the disqualification. The 9 WP(C).No. 32979 of 2018 document marked as Ext.P2 is stated to be some of the details furnished by the petitioner and it is also averred that with reference to each and every person objections are preferred with relevant materials.
8. However, copy of the aforesaid objection dated 06.10.2018, made available for the perusal of this Court by the learned Senior Government Pleader would show that, along with the said complaint, the petitioner has furnished the membership number and name of 2380 persons, contending that those persons are ineligible to be members of the 4 th respondent Society. In the objection dated 06.10.2018, it is alleged that around 5000 ineligible members are included in the preliminary voter's list and that, the persons residing outside the area of operation of the 4th respondent Society are also included in that list. During the course of arguments, a copy of the objection dated 06.10.2018 made by the petitioner before the 2nd respondent Electoral 10 WP(C).No. 32979 of 2018 Officer and the list enclosed therewith are made available for the perusal of the learned counsel for the petitioner, who has not raised any dispute as to the said document. Therefore, conclusion is irresistible that the objection made by the petitioner to the preliminary voters list is one preferred without relevant materials in support of his objection. Moreover, along with this writ petition, the petitioner has not produced any materials in support of his objection against the preliminary voters list. In the counter affidavit, the 1st respondent State Co-operative Election Commission has no case that the complaint stated to have been made by the petitioner is one supported by relevant materials as to the ineligibility of any member of the 4th respondent Society for inclusion of their name in the voters list.
9. During the course of hearing, the learned Senior Government Pleader, on instructions from the 2nd respondent Electoral Officer, would submit that 11 WP(C).No. 32979 of 2018 though the objection dated 06.10.2018 made by the petitioner was not supported by any materials, after verifying the records maintained by the 4 th respondent Society, the name of 511 members have already been removed from the voter's list and the final voters list is published accordingly. However, in the counter affidavit filed on behalf of the 1st respondent State Co-operative Election Commission, it is averred that the 2 nd respondent Electoral Officer could verify only the objections raised in respect of 511 persons owing to dearth of time and for verification of the particulars of 1869 members much more time is required.
10. The total membership in the 4th respondent Society is 22,358 as stated in the writ petition. Out of which, going by the averments in the counter affidavit filed by the 1st respondent Election Commission, verification of the particulars of 1869 members are not undertaken by the 2 nd respondent Electoral Officer owing to dearth of time. 12 WP(C).No. 32979 of 2018 Therefore, it can be seen that no objections whatsoever has been raised in respect of nearly 20,000 members of the 4th respondent Society, who are included in the final voters list.
11. Now, the election to the Managing Committee of the 4th respondent Society is scheduled to be held on 04.11.2018, in terms of Ext.P1 election notification. If the petitioner is having any dispute in connection with the election to the Managing Committee of the 4th respondent Society, 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 13 WP(C).No. 32979 of 2018 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. Rule 35A(4) deals with publication of voters list. If that be so, any dispute in relation to publication of final voters list by the 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. 14 WP(C).No. 32979 of 2018
12. 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 Cooperative 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.
15WP(C).No. 32979 of 2018
13. 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.
14. 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 16 WP(C).No. 32979 of 2018 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.
15. Part IXB of the Constitution of India, inserted by the Constitution (97th Amendment) Act, 17 WP(C).No. 32979 of 2018 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 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.
16. 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 18 WP(C).No. 32979 of 2018 (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 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.
17. Viewed in the light of the decisions referred to supra, conclusion is irresistible that if the petitioner is having any dispute in relation to publication of final voters list in the election scheduled to be held on 4.11.2018 to the Managing 19 WP(C).No. 32979 of 2018 Committee of the 4th respondent Society in terms of Ext.P1 notification issued by the 1st respondent State Co-operative Election Commission, he will have to raise such dispute before the Co-operative Arbitration Court by invoking the statutory remedy available under Section 69 of the Act, within a period of 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.
18. However, taking note of the stand taken by the 1st respondent State Co-operative Election Commission in its counter affidavit, this Court deems it appropriate to order that the votes cast by 1869 members referred to therein, shall be kept in a separate box, to ensure that the conduct of the election and declaration of result taking into account the votes cast by those 1869 members will not cause any prejudice to the right of the petitioner to raise appropriate dispute under 20 WP(C).No. 32979 of 2018 Section 69 of the Act.
19. In the result, this writ petition is disposed of, without prejudice to the right of the petitioners to raise any dispute arising in connection with the election to the Managing Committee of the 4th respondent Society, conducted in terms of Ext.P1 election notification issued by the 1st respondent State Cooperative 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, by ordering that, the votes casted by 1869 members (2380-511) against whom objections have been raised by the petitioner in his objection dated 06.10.2018 shall be kept in a separate box, though the result of the election can be declared after counting their votes.
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 21 WP(C).No. 32979 of 2018 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 4th respondent Society, untrammelled by any such observations.
Sd/-
ANIL K. NARENDRAN JUDGE SB 22 WP(C).No. 32979 of 2018 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ELECTION NOTIFICATION ALONG WITH SCHEDULE THEREOF EXHIBIT P2 TRUE COPY OF THE PART OF THE OBJECTION FILED BY THE PETITIONER REGARDING VOTERS LIST.
RESPONDENTS EXTS:
EXHIBIT R4(A) A TRUE COPY OF THE RELEVANT PAGES OF THE VOTERS LIST.
// true copy // P.A to Judge