Kerala High Court
A.Ahammed Kabeer vs Returning Officer on 30 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
FRIDAY,THE 30TH DAY OF NOVEMBER 2018 / 9TH AGRAHAYANA, 1940
WP(C).No. 38241 of 2018
PETITIONER:
A.AHAMMED KABEER
AGED 56 YEARS, MEMBER NO.5816,
S/O ABDUL KHADER RAVUTHAR, PATHANAPURAM, KAVASSERY,
PALAKKAD, PIN - 678543.
BY ADV. SRI.C.A.ANOOP
RESPONDENTS:
1 RETURNING OFFICER
KAZHANI SERVICE CO-OPERATIVE BANK LTD NO.F 1218,
UNIT INSPECTOR, ALATHUR, PALAKKAD DISTRICT - 678543.
2 THE SECRETARY
KAZHANI SERVICE CO-OPERATIVE BANK LTD.NO.F 1218,
UNIT INSPECTOR, ALATHUR, PALAKKAD DISTRICT - 678 543.
3 CHIEF CO-OPERATIVE ELECTION COMMISSIONER
STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR,
CO-BANK TOWERS, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM - 695 033.
4 THE REGISTRAR OF CO-OPERATIVE SOCIETIES
NO.10/1146, NALAKATH COMPLEX, PIRIVUSALA,
KOOTTUPATHA, PALAKKAD, PIN - 678 001.
SRI. K.P.HARISH, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.38241 of 2018
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J U D G M E N T
The petitioner, who is the member of the 2nd respondent Service Co-operative Bank, which is a 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 a writ of mandamus commanding the 1st respondent to accept the nomination made by the petitioner and allow him to contest the election to the Managing Committee of the said Society, scheduled to be held on 2.12.2018, in terms of Ext.P1 election notification dated 10.10.2018 issued by the 3rd respondent State Co-operative Election Commission.
2. On 26.11.2018 when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for W.P.(C)No.38241 of 2018 :-3-:
respondents 1, 3 and 4. Urgent notice on admission by special messenger was ordered to the 2nd respondent returnable by 28.11.2018. The learned Senior Government Pleader was directed to get instructions.
3. On 28.11.2018 the learned Senior Government Pleader submitted that a statement of the 1st respondent Returning Officer will be placed on record by 30.11.2018 and accordingly the writ petition listed today for further consideration. A statement has been filed by the 1st respondent Returning Officer opposing the reliefs sought for in this writ petition. Along with the said statement, the nomination paper submitted by the petitioner is placed on record as Annexure R1(a).
4. Heard the learned counsel for the petitioner and also the learned Senior Government W.P.(C)No.38241 of 2018 :-4-:
Pleader appearing for respondents 1, 3 and 4. Despite service of notice, none appears for the 2nd respondent Society.
5. Learned counsel for the petitioner would submit that while filling up the nomination paper, the petitioner had written "Pathanapuram/Muslim"
against the place provided for Ward/Region, which is only a clerical mistake which can be corrected. However, the 1st respondent Returning Officer rejected the said nomination by Ext.P4 order dated 17.11.2018, which is legally unsustainable, warranting interference of this Court under Article 226 of the Constitution of India.
6. Per contra, the learned Senior Government Pleader, based on the statement filed by the 1 st respondent Returning Officer would contend that Annexure R1(a) nomination paper submitted by the petitioner stands rejected by Ext.P4 order dated W.P.(C)No.38241 of 2018 :-5-:
17.11.2018, since the nomination was submitted for contesting from Pathanapuram/Muslim ward which is not existing as per Clause 32(b) of the bye-laws of the 2nd respondent Society and it is specified in Ext.P1 election notification that the election is held for (a) General, (b) Deposit reservation,
(c) Women reservation and (d) SC/ST reservation seats. It was in such circumstances that the nomination made by the petitioner stands rejected.
Learned Senior Government Pleader would also point out that the list of valid nominations was published on 17.11.2018 and printing of ballots for 4651 members has already been completed.
7. Having considered the submissions made by the learned counsel on both sides, this Court finds that, by Ext.P4 order dated 17.11.2018 of the 1st respondent Returning Officer, the nomination made by the petitioner stands rejected W.P.(C)No.38241 of 2018 :-6-:
on the ground that in the nomination paper, he has incorrectly mentioned, as contesting from Pathanapuram/Muslim ward. In the writ petition, the petitioner has admitted that he has committed such mistake while submitting the nomination. As per Ext.P1 notification, election is held for General seats and also Deposit reservation seat, in addition to Women reservation and SC/ST reservation. The proviso to sub-clause (ii) of Clause (e) of sub-rule (6) of Rule 35A of the Kerala Co-operative Societies Rules only provides that the nomination of a candidate shall not be rejected merely on the ground of an incorrect description of his name or, of the name of his proposer or seconder or of any particulars relating to the candidate or his proposer or seconder as entered in the list referred to in clause(b), if the identity of the candidate or W.P.(C)No.38241 of 2018 :-7-:
proposer or seconder, as the case may be, is established beyond reasonable doubt.
8. If the petitioner is having any dispute in connection with the election to the Managing Committee of the 2nd respondent Society, scheduled to be held on 2.12.2018 in terms of Ext.P1 notification dated 10.10.2018 issued by the 3rd respondent 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, 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 W.P.(C)No.38241 of 2018 :-8-:
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 Cooperative Election Commission. Rule 35A(6)(e)(ii) deals with rejection of nomination paper. If that be so, any dispute in relation to rejection of nomination paper by the Electoral Officer, in exercise of his powers under under sub-rule (6) 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 W.P.(C)No.38241 of 2018 :-9-:
remedy available under Section 69 of that Act, within one month from the date of election.
9. 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 W.P.(C)No.38241 of 2018 :-10-:
provisional voters' list, decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of the result of election.
10. In Shaji K. Joseph v. V.Viswanath [(2016) 4 SCC 7 429], 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 W.P.(C)No.38241 of 2018 :-11-:
administration is frustrated. Therefore, all disputes with regard to election should be dealt with only after completion of the election.
11. 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 W.P.(C)No.38241 of 2018 :-12-:
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.
12. Part IXB of the Constitution of India, inserted by the Constitution (97th Amendment) Act, 2011 deals with Cooperative 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 W.P.(C)No.38241 of 2018 :-13-:
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 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, W.P.(C)No.38241 of 2018 :-14-:
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. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that if the petitioner is having any dispute in relation to rejection of his nomination in the election to the Managing Committee of the 2nd respondent Society scheduled to be held on 2.12.2018 in terms of Ext.P1 notification issued by the 3rd respondent State Co-operative Election Commission, he will have to raise such dispute W.P.(C)No.38241 of 2018 :-15-:
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.
In the result, this writ petition is dismissed, without prejudice to the right of the petitioner to raise any dispute arising in connection with the election to the Managing Committee of the 2nd respondent Society, conducted in terms of Ext.P1 election notification issued by the 3rd respondent 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 W.P.(C)No.38241 of 2018 :-16-:
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 2nd respondent Society, untrammelled by any such observations.
Sd/-
ANIL K.NARENDRAN JUDGE ami/30.11.18 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE ELECTION NOTIFICATION DATED 10/10/2018.
EXHIBIT P2 TRUE COPY OF THE NOMINATION FORM. EXHIBIT P3 THE TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 15/11/2018.W.P.(C)No.38241 of 2018
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EXHIBIT P4 THE TRUE COPY OF THE REJECTION LETTER DATED 17/11/2018.
RESPONDENTS' EXTS.:
ANNEXURE R1(a) TRUE COPY OF THE NOMINATION PAPER SUBMITTED BY THE PETITIONER ANNEXURE R1(b) TRUE COPY OF THE PROCEEDINGS DATED 17.11.2018.
//TRUE COPY// ami/ P.A.TO JUDGE