Kerala High Court
Laju P.V vs The State Co-Operative Election ... on 29 May, 2017
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 25TH DAY OF JULY 2017/3RD SRAVANA, 1939
WP(C).No. 16256 of 2017 (F)
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PETITIONER :
----------------------
LAJU P.V.,
PRESIDENT, MANAGING COMMITTEE,
THURUTHIPURAM SERVICE CO-OPERATIVE BANK
LIMITED NO.1789, THURUTHIPURAM.P.O.-680 667,
PUTHENVELIKKARA, ERNAKULAM DISTRICT.
BY ADV. SRI.GEORGE POONTHOTTAM
RESPONDENT(S):
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1. THE STATE CO-OPERATIVE ELECTION COMMISSION,
REPRESENTED BY THE ELECTION COMMISSION,
THIRUVANANTHAPURAM -695 001
2. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
ERNAKULAM -682 030
3. ASSISTANT REGISTRAR OF CO-OEPRATIVE SOCIETIES (GENERAL),
(ELECTORAL OFFICER), PARAVOOR -680 667
ERNAKULAM DISTRICT.
4. THE RETURNING OFFICER,
THURUTHIPURAM SERVICE CO-OPERATIVE BANK
LIMITED NO.1789, THURUTHIPURAM P.O -680 667
PUTHENVELIKKARA, ERNAKULAM DISTRICT
(EROOR UNIT INSPECTOR),
OFFICE OF THE ASST. REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL), PARAVOOR, ERNAKULAM DISTRICT.
5. THURUTHIPURAM SERVICE CO-OPERATIVE BANK LIMITED NO.1789,
THURUTHIPURAM P.O -680 667
PUTHENVELIKKARA, ERNAKULAM DISTRICT,
REPRESENTED BY THE SECRETARY.
2/-
-2-
WP(C).No. 16256 of 2017 (F)
*ADDL.R6 TO R11 IMPLEADED
*ADDL.R6: K.D.SEBASTIAN,
S/O.DEVASSYKUTTY, AGED 55 YEARS,
KURIAPPILLY HOUSE, THURUTHOOOR,
PUTHENVELIKKARA, PIN-683 594
*ADDL.R7: E.K.SAJEEVAN, S/O.KARTHIKEYAN, AGED 60 YEARS,
ESWARAMANGALATH, THURUTHOOOR,
PUTHENVELIKKARA, PIN-683 594
*ADDL.R8: ROSY JOSHY, W/O.JOSHY.M.L., AGED 47 YEARS,
MALIYEKKAL HOUSE, THURUTHIPPURAM.P.O., PIN-680 667
*ADDL.R9: MINI PRASAD, W/O.PRASAD.A.C., AGED 42 YEARS,
ANDISSERYPARAMBIL HOUSE, THURUTHOOOR,
PUTHENVELIKKARA, PIN-683 594
*ADDL.R10: PHILOMINA JOY, W/O.JOY.K.C., AGED 57 YEARS,
KONATH HOUSE, THURUTHOOOR, PUTHENVELIKKARA,
PIN-683 594
*ADDL.R11: K.J.ANTONY, S/O.JOSA, AGED 43 YEARS,
KONATH HOUSE, THURUTHIPPURAM.P.O.,
THURUTHIPPURAM, PIN-680 667
*ADDL.R6 TO R11 ARE IMPLEADED AS PER ORDER DATED 29/5/2017 IN
IA.NO.7627/2017.
R1 TO R4 BY SPL.GOVERNMENT PLEADER SRI.MOHAMMED HASHIM
R5 BY ADV. SMT.I.SHEELA DEVI
ADDL.R6 TO R11 BY ADV. SRI.M.M.MONAYE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12-07-2017, THE COURT ON 25-07-2017 DELIVERED THE
FOLLOWING:
sts
WP(C).No. 16256 of 2017 (F)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 TRUE COPY OF THE ELECTION NOTIFICATION
NO.E(2)/1482/2017/S.C.E.C DATED 29-03-2017 ISSUED BY THE 1ST
RESPONDENT
EXHIBIT P2 TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED IN THE
MATHRUBHUMI DAILY DATED 12-04-2017
EXHIBIT P3 TRUE COPY OF THE BYELAWS OF THE SOCIETY AS AMENDED AND
REGISTERED BY THE 2ND RESPONDENT
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN W.P(C) NO.15325/2017 DATED
09-05-2017 PASSED BY THIS HON'BLE COURT
EXHIBIT P5 TRUE COPY OF THE ORDER NO.E(1) 1482/2017/S.C.E.C
DATED 12-05-2017 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 12-05-2017 ISSUED BY
THE RETURNING OFFICER TO THE PETITIONER
RESPONDENT(S)' EXHIBITS
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EXHIBIT R6(A) TRUE COPY OF THE IDENTITY CARD NO.5287 SHOWING THE
MEMBERSHIP OF ADDITIONAL RESPONDENT NO.6
EXHIBIT R6(B) TRUE COPY OF THE IDENTITY CARD NO.2962 SHOWING THE
MEMBERSHIP OF ADDITIONAL RESPONDENT NO.7
EXHIBIT R6(C) TRUE COPY OF THE IDENTITY CARD NO.3271 SHOWING THE
MEMBERSHIP OF ADDITIONAL RESPONDENT NO.8
EXHIBIT R6(D) TRUE COPY OF THE IDENTITY CARD NO.7134 SHOWING THE
MEMBERSHIP OF ADDITIONAL RESPONDENT NO.9
EXHIBIT R6(E) TRUE COPY OF THE IDENTITY CARD NO.3486 SHOWING THE
MEMBERSHIP OF ADDITIONAL RESPONDENT NO.10
EXHIBIT R6(F) TRUE COPY OF THE IDENTITY CARD NO.5306 SHOWING THE
MEMBERSHIP OF ADDITIONAL RESPONDENT NO.11
EXHIBIT R6(G) TRUE COPY OF THE RECEIPT OF NOMINATION OF THE ADDL.
RESPONDENT NO.7 DATED 28/4/2017
EXHIBIT R6(H) TRUE COPY OF THE RECEIPT OF NOMINATION OF THE ADDL.
RESPONDENT NO.9 DATED 28/4/2017
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WP(C).No. 16256 of 2017 (F)
EXHIBIT R6(I) TRUE COPY OF THE RECEIPT OF NOMINATION OF THE ADDL.
RESPONDENT NO.10 DATED 28/4/2017
EXHIBIT R6(J) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
RESPONDENT 6 DATED 29/4/2017
EXHIBIT R6(K) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
RESPONDENT 7 DATED 29/4/2017
EXHIBIT R6(L) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
RESPONDENT 8 DATED 29/4/2017
EXHIBIT R6(M) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
RESPONDENT 9 DATED 29/4/2017
EXHIBIT R6(N) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
RESPONDENT 10 DATED 29/4/2017
EXHIBIT R6(O) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
RESPONDENT 11 DATED 29/4/2017
EXHIBIT R6(P) TRUE COPY OF THE ORDINANCE NO.4/2017 WITH
NO.7932/LEG.H2/2017/LAW DATED 10/4/2017
EXHIBIT R6(Q) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
ADDITIONAL RESPONDENTS 9 TO 11 AND OTHER CANDIDATES
DATED 9/5/2017.
/TRUE COPY/
P.S.TO JUDGE
sts
SHAJI P. CHALY, J.
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W.P.(C) No.16256 of 2017
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Dated this the 25th day of July, 2017
JUDGMENT
This writ petition is filed by the petitioner seeking to quash Ext.P5 notification issued by the 1st respondent dated 12.05.2017, whereby the proceedings pursuant to Ext.P2 election notification is directed to be kept in abeyance, and for other consequential reliefs. Material facts for the disposal of the writ petition are as follows:
2. The petitioner is the President of Managing Committee of 5th respondent Co-operative Bank. The committee was elected to office on 20.05.2012 and assumed charge on 29.05.2012, and consequently, the tenure of the committee will elapse on 19.05.2017. Bearing in mind the expiry of the term of the committee in office, a resolution was adopted by the committee to conduct election to the managing committee, scheduling the poll on 14.05.2017. Consequent to the resolution adopted, and on forwarding the resolution to the 1st respondent through proper channel, the 1st respondent issued election notification on 29.03.2017, evident from W.P.(C) No.16256 of 2017 2 Ext.P1. The same was published in the newspapers as required under law as per Ext.P2. As per Exts.P1 and P2, election to the Board of Directors is to be held on ward basis, as provided in the bye-laws of the society. The area of the society is divided into wards by the general body and made it as part of the bye-laws by giving registration as per law, evident from Ext.P3. When election notification provides for holding of election on ward basis, the mandate contained in the Rules in the matter of submission of nominations and the like are mandatorily required to be followed without exception.
However, some of the members who owe their allegiance to CPI(M) submitted their nomination papers without following the prescriptions and requirements, as contained in the election notification issued by the 1st respondent and as required to be followed in terms of the Rules. Therefore, the non-adherence of the requirements by some of the candidates who were submitted their nominations were resisted by the rival candidates. Accordingly, six nomination papers of the candidates who owe their allegiance to CPI(M) were rejected by the Returning Officer. Thereafter, the Returning Officer published the list of valid nominations on 29.04.2017. After W.P.(C) No.16256 of 2017 3 the publication of the list of valid nominations, two candidates withdrew their nominations. Resultantly, 8 members of the managing committee out of 11 got elected unopposed as on 02.05.2017.
3. But, a member has approached this Court by filing W.P.(C) No.15325 of 2017, challenging rejection of his nomination paper, contending that in terms of the amendment carried out in the provisions of the Kerala Co-operative Societies Act through Ordinance No.4 of 2017, which has come into force on 10.04.2017, the requirement of conducting election on ward basis as provided in Sec.28 of the Act, 1969 has been taken away by deleting the proviso thereto.
4. When the matter was posted for consideration, instructions were directed to be taken and the case was listed on 09.05.2017. On that day, a submission was made on behalf of the 1st respondent that the Commission is considering further steps in accordance with law in the light of Ordinance No.4 of 2017. Thereupon, the writ petition was closed as per Ext.P4 judgment. According to the petitioner, the submission made on behalf of the Election Commission and the recording of the same had provided a handle to mis-interpret the W.P.(C) No.16256 of 2017 4 provisions of law, since the area of operation of the society has been divided as resolved by the general body by amending the bye-laws and registering the same by the statutory authority as provided under the Act and the Rules. However, the 1st respondent made use of the statement made on behalf of the 1st respondent, and thereupon, stayed the election scheduled on 14.05.2017, referring to Ext.P4 judgment, which in fact did not contain any order or direction to the 1st respondent to exercise the power mis-interpreting the provisions of law in a convenient manner, evident from Ext.P5. Consequently, the Returning Officer issued Ext.P6, postponing the election. Other contentions with respect to arbitrary action on the part of the 1st respondent, are all alleged. According to the petitioner, Ext.P5 is issued by the 1st respondent in tune with the requirements of the present Ruling Front Government, and therefore, interference is warranted to Ext.P5.
5. A counter affidavit is filed by additional respondents 6 to 11, disputing the allegations and claims and demands raised by the petitioner. According to the said respondents, petitioner has no locus standi to file the writ petition since the petitioner has not suffered any legal injury and that apart, it is W.P.(C) No.16256 of 2017 5 stated that petitioner is incompetent to represent the managing committee. It is also stated that, as per the interim order passed by this Court on 16.05.2017, an administrative committee is in charge of the 5th respondent Bank on and with effect from 20.05.2017, and the petitioner has also not cared to implead the administrative committee in the writ petition. It is also submitted, the scrutiny of the nominations was conducted on 29.04.2017 by the 4th respondent Returning Officer and rejected the nomination of the additional respondents, for the reason that the candidate, proposer, and seconder are not from the same ward. Even though representations were submitted to the 4th respondent dated 29.04.2017, the same were not taken into account. It was on the said basis, the 6th additional respondent filed W.P.(C) No.15325 of 2017 seeking to quash the order of rejection of the nomination filed by him in the light of the provisions contained in Ordinance No.4 of 2017 and other grounds, and the writ petition was closed, since it was submitted on behalf of the Co-operative Election Commission that further steps in accordance with law are being taken. Other contentions are raised with respect to the validity of the provisions of the W.P.(C) No.16256 of 2017 6 Ordinance and the conduct of the election generally when the same being divided into wards. Other contentions are also raised justifying Ext.P5 order passed by the Election Commission.
6. Heard learned counsel for the petitioner, learned Special Government Pleader and the learned counsel appearing for the additional respondents 6 to 11. Perused the documents on record and the pleadings put forth by the respective parties.
7. According to learned counsel for the petitioner, the election is to be conducted as per Exts.P1 and P2 notifications and from where it stopped. It is also submitted that there was no contest for the election, and there were only 8 candidates representing the wards, since on scrutiny the nominations of additional respondents 6 to 11, were rejected and three existing contesting candidates withdrew from the same. According to the petitioner, the additional 6th respondent has approached this Court earlier, challenging the notification and the statement made by the Election Commission that it is taking further action in accordance with the Ordinance, are all ploy adopted by the respondents to overreach the election proceedings. Therefore, a new date is to be fixed for the W.P.(C) No.16256 of 2017 7 election and the election is to be conducted accordingly without any further resolution, consequential notification etc. etc. According to the learned counsel, the sole proceeding that was pending completion was voting, and therefore, redoing the entire procedure will cause innumerable difficulties, inconveniences and financial loss to the Bank. It is also submitted that, the conduct of the election put forth by the 5th respondent society on ward basis in accordance with the terms of the bye-laws is approved by a Division Bench of this Court in the judgment in W.A.No.1026 of 2017 dated 29.06.2017, and therefore, nothing remains to be rectified in the matter of conduct of election.
8. Learned counsel has also invited my attention to the judgment of a Division Bench of this Court in 'George v. Joint Registrar' [1985 KHC 184] and invited my attention specifically to paragraph 19, which read thus:
"19. It is also relevant to note that if at any stage of polling, the proceedings are interrupted or obstructed as mentioned in R.35(p), the Returning Officer shall have the power to stop the polling recording his reasons. The election can continue thereafter from the stage when it was stopped and there is no necessity to start de novo the election process."W.P.(C) No.16256 of 2017 8
9. On the contrary, learned counsel appearing for the additional respondents submitted that as per the judgment rendered by this Court in 'Pradeep U.R. v. Kerala State Co- operative Election Commissioner and others' [I.L.R 2015 (2) Kerala 80], it is not an inflexible rule that an election process which is halted has to be continued from that stage only notwithstanding the efflux of time, and the learned counsel has invited my attention to paragraph 4 of the said judgment, which read thus:
"4. One of the questions that arise for consideration is as to whether the election process has to be continued from the stage it was halted or a fresh notification be issued. It may at once be noticed that about 6 months have elapsed since the postponement of election and there has been a sea change in the Act and the Rules owing to amendments. Many a voter would like to put in his nomination as a candidate for election which opportunity cannot be deprived for the reason that he did not do so earlier. The possibility of a few voters being ineligible to vote or the existing candidates being incapacitated due to efflux of time cannot altogether be ruled out. What is the harm in directing a fresh notification for election to be issued giving opportunity to those who would like to contest the present scenario? I do feel that a fresh notification displaying the election calendar would subserve the ends of justice taking note of the expiry of 6 months after postponement. I am conscious of the fact that the election was directed to be continued from the stage it was stopped in Madhavan Namboodiri v. Kammaran. But the said decision was rendered in the context of Rule 35 of the Rules which has been omitted by SRO 733/2014 with effect from 26-11-2014. This is not a case of stoppage of election by the Returning Officer due to interruption but a conscious W.P.(C) No.16256 of 2017 9 postponement by the Commission due to non- availability of vital records. I am not therefore, dissuaded from directing the Commission to issue a notification afresh and commence the process for conducting the election to the Managing Committee of the Bank."
10. So also, in that regard, learned counsel has pointed out the judgment in 'Rajendran v. State Co-operative Election Commission' [2004 (1) KLT 1026], wherein at paragraph 11, a Division Bench of this Court has held as follows:
"11. The next question is whether the election proceedings should be continued from the stage at which they were stopped. The election proceedings were stopped after publishing the preliminary voters' list and before publishing the final voters' list. Though as per Ext.P1 the final voters' list was to be published on 18.05.2002, it would appear that the final voters' list was not published in view of Ext.P2 Circular. The preliminary voters' list was published without including ordinary members also and thus in violation of S.20 of the Act. Therefore, in terms of R.35A(4) of the Kerala Co-operative Societies Rules, the Chief Executive of the Bank has to again prepare and update the list of members qualified to vote in accordance with the provisions of the Act, Rules and Bye-laws and to submit the voters' list duly approved by the Committee to the Electoral Officer and the Electoral Officer has to publish the preliminary voters' list calling for objections. Since the election could not be conducted on 09.06.2002 as originally decided by the Administrative Committee and since a fresh preliminary voters' list has to be published, it is necessary to pass a fresh resolution fixing a new date for election. It is also necessary to issue a fresh election notification based on such resolution of the Committee. Hence, in this case, it is not possible to continue the election proceedings from the stage where it was stopped." W.P.(C) No.16256 of 2017 10
11. Moreover, learned counsel has further invited my attention to the judgment rendered by a learned Single Judge of this Court in 'Mohanachandran Nair B. and Another v. State Co-operative Election Commission and others' [2013 (3) KHC 473], to canvass the proposition that in accordance with Rule 35A of the Kerala Co-operative Societies Act, 1969, if circumstances are such that a free and fair election cannot be conducted, the Election Commission can interfere in the matter and postpone the election. It was also held that the Returning Officer has no power to adjourn the election except under very special circumstances.
12. It is the contention of the learned counsel that the judgment in 'George' (supra) pointed out by the learned counsel for the petitioner was rendered at a time when as per the then existing rule, i.e. Rule 35B, the Returning Officer had the power to stop the polling for reasons recorded thereunder, whereas, as per the amended Rules, only the Election Commission is vested with such powers ordinarily, and therefore, the principles of law laid down in the said judgment may not have any bearing at all to the fact situation in this case.
W.P.(C) No.16256 of 2017 11
13. Having evaluated the compendious situation, the sole question to be considered is whether in the contextual circumstances, fresh election proceedings is directed to be issued, or whether a direction is to be issued to finalize the election proceedings from where it stopped. The discussion of facts made above would make it clear that the whole commotion and disruption of election took place consequent to the rejection of nomination of additional respondents 6 to 11, for the reason that since the election was notified as per the bye-laws of the society on ward basis, the nominations of additional respondents were not in accordance with the terms of the configuration provided for conduct of such an election. Therefore, it cannot be said that the rejection of nominations on 29.04.2017 is in any way bad under law. But the complexity occurred due to the introduction of Ordinance No.4 of 2017, which came into force on and with effect from 10.04.2017, whereby the 3rd proviso to Sec.28 was deleted and the elections on ward basis was apparently interfered with to a certain extent. The said issue was settled by a Division Bench of this Court in W.A.No.1026 of 2017 referred to above, and ultimately held that the effect of amendment by the W.P.(C) No.16256 of 2017 12 Ordinance was not to prohibit ward basis election at all.
14. Therefore, in my considered opinion, the bye-laws of the society to the extent of conducting the election on ward basis is upheld by the Division Bench. True, in the judgment of this Court in 'Pradeep U.R.' cited supra, it is held that the process of election to start from where it halted, is not an inflexible rule, however, in my considered opinion, it was rendered based on the factual circumstances available thereunder, since the writ petition concerned was of the year 2014, and by the time of consideration, almost an year has elapsed. However, in the case on hand, Ext.P1 election notification was issued by the 1st respondent only on 29.03.2017 to conduct the election on 14.05.2017. The entire proceedings up to the withdrawal of the nominations were over and the sole procedure to be completed was voting. Therefore, the factual circumstances available in 'Pradeep U.R.' (supra) are not available in this case, and therefore, it cannot be said that the proposition of law laid down thereunder will strictly apply to the facts of the present case. So also, in the judgment in 'Rajendran' (supra), the election proceedings were stopped after publishing the preliminary voters' list and W.P.(C) No.16256 of 2017 13 before publishing the final voters list, and it was in that background, a Division Bench of this Court held that it is not possible to continue the election process from where it was stopped.
15. True, learned counsel for the additional respondents has a contention that there is no locus standi for the petitioner to represent, act on behalf of the society or to espouse its cause, especially due to the fact that society is managed presently by an Administrative Committee. Learned counsel has also invited my attention to the Division Bench judgments of this Court in 'Kerala State Electricity Board, Tvm. v. Kerala High Tension & Extra High Tension Industrial Electricity Consumers' Association, Kalamassery and Others' [2016 (5) KHC 634] and in 'Self Financing Arts and Science College Management Welfare Association v. MG University, Kottayam and Others' [2016 (4) KHC 293 (DB)], whereby it was held that the respective associations did not have right to represent the grievance of the individual consumers. However, in my considered opinion, so far as a member of a society is concerned, he is an aggrieved person in respect of the conduct of the election, since a Co-operative W.P.(C) No.16256 of 2017 14 Society is an institution managed by a democratically elected body and it is definitely the aspiration and hope of every member of the society to ensure that the society is ruled by an elected Managing Committee. Viewed in that regard, I do not find much force in the contention so advanced by learned counsel for the additional respondents.
16. The learned Special Government Pleader also advanced contentions in tune with the contentions advanced by the learned counsel appearing for the additional respondents and vehemently canvassed for the proposition that a fresh election is to be directed in the facts and circumstances of the case.
17. Summarizing the fact discussions made above and reckoning the law on the subject, I am of the considered opinion that the election need only to start from where it stopped, especially due to the fact that there is no other serious development taken place so as to interfere with the election after Ext.P1 election notification and Ext.P2 publication. This is more so, when the ward-wise election contemplated under the bye-laws of the 5th respondent Bank was held to be in order by the Division Bench of this Court in W.P.(C) No.16256 of 2017 15 W.A.No.1026 of 2017, specified supra.
18. Accordingly, the writ petition is allowed, and I quash Exts.P5 and P6 and direct the respondents to take necessary and adequate steps to notify the election date at the earliest, and at any rate, within three weeks from the date of receipt of a copy of this judgment, and finalize the proceedings accordingly. Till such time, the Administrative Committee appointed by this Court as per the interim order dated 16.05.2017 will continue in power. I also make it clear that the Administrative Committee shall not take any policy decision in respect of the matters concerning the society other than managing the day-to-day affairs of the society.
Sd/-
SHAJI P. CHALY JUDGE St/-
22.07.2017