Kerala High Court
Ajayakumar V.R vs The Kerala State Co-Operative Election on 29 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 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940
WP(C).No. 38071 of 2018
PETITIONER:
AJAYAKUMAR V.R.,
MEMBER NO.6402, PULLAD SERVICE CO-OPERATIVE
BANK LTD. NO.195, PULLAD, PATHANAMTHITTA,
RESIDING AT VALLUZHATHIL HOUSE,
KURAVANKUZHI.P.O., PULLAD, THIRUVALLA,
PATHANAMTHITTA DISTRICT.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENTS:
1 THE KERALA STATE CO-OPERATIVE ELECTION
COMMISSION,
REPRESENTED BY CHIEF ELECTION COMMISSIONER,
OFFICE OF THE CO-OPERATIVE ELECTION COMMISSION,
THIRUVANANTHAPURAM-695 011.
2 THE ELECTORAL OFFICER,
APPOINTED FOR CONDUCT OF ELECTION TO PULLAD
SERVICE CO-OPERATIVE BANK LTD.NO.195, PULLAD
(ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVALLA), PIN-689 548.
3 THE RETURNING OFFICER
APPOINTED FOR CONDUCT OF ELECTION TO THE
MANAGING COMMITTEE OF PULLAD SERVICE CO-
OPERATIVE BANK LTD.NO.195, PULLAD (UNIT
INSPECTOR, IRAVIPEROOR, OFFICE OF THE ASSISTANT
REGISTRAR OF CO-OPERATIVE SOCIETIES,
IRAVIPEROOR), PIN-689 548.
WPC 38071 OF 2018 2
4 THE PULLAD SERVICE CO-OPERATIVE BANK
LTD.NO.195,
PULLAD, PATHANAMTHITTA,
REPRESENTED BY ITS SECRETARY, PIN-689 548.
BY ADVS.
SRI.T.R.HARIKUMAR
SRI.ADITHYA RAJEEV
SRI. K.P.HARISH, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.11.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WPC 38071 OF 2018 3
JUDGMENT
The petitioner, who is a member of the 4 th respondent Service Co-operative Bank, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and Rules made thereunder has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 order dated 16.11.2018 of the 3rd respondent Returning Officer, whereby the nomination made by the petitioner pursuant to Ext.P1 election notification dated 26.10.2018 issued by the 1 st respondent State Co-operative Election Commission to conduct election to the Managing Committee of the 4th respondent Society, on 01.12.2018, stands rejected, on the ground that the petitioner is disqualified to contest in the election in view of the provisions under clause (i) of sub-rule (1) of Rule 44 of the Kerala Co-operative Societies Rules, 1969. The petitioner has also sought for a declaration that he is fully qualified to contest in the election in pursuance to Ext.P1 notification; and a writ of mandamus commanding the respondents to accept his nomination for contesting in the election to the Managing Committee of the 4th respondent Society.
WPC 38071 OF 2018 4
2. On 23.11.2018, 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 4 th respondent, returnable by 29.11.2018.
3. A counter affidavit has been filed by the 4 th respondent opposing the reliefs sought for in this writ petition. Along with the counter affidavit, the 4th respondent has produced the amended bye-laws of the Society as Ext.R4(a). An order dated 29.11.2014 of the Registrar of Co-operative Societies, whereby the 4 th respondent Society has been granted permission to start Neethi Medical Store, is placed on record as Ext.R4(b).
4. 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 Society.
5. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India on Ext.P2 proceedings dated 16.11.2018 of the 3rd respondent Returning Officer, whereby the nomination WPC 38071 OF 2018 5 submitted by the petitioner pursuant to Ext.P1 election notification to contest in the election to the Managing Committee of the 4th respondent Society stands rejected.
6. As can be seen from Ext.P2 proceedings, the nomination made by the petitioner stands rejected on the ground that the petitioner is the licencee of Janaushadhi Medical Store, which is conducting the very same business run by the 4 th respondent Society in its Neethi Medical Store and as such, the petitioner is disqualified under clause (i) of sub-rule (1) of Rule 44 of the Kerala Co-operative Societies Rules.
7. The learned counsel for the petitioner would contend that the object of the 4 th respondent Society in terms of Ext.P3 bye-laws has to be taken into consideration while deciding the question as to whether the disqualification under clause (i) of sub-rule (1) of Rule 44 is attracted. The 4 th respondent Society, which is classified as a primary credit society cannot be said to be engaged in the business of medicines and as such, the Neethi Medical Store run by the Society cannot be treated as the business of the Society, for the purpose of clause (i) of sub-rule (1) of Rule 44.
WPC 38071 OF 2018 6
8. The learned counsel for the 4th respondent Society, after referring to Ext.R4(a), would point out that, as per the amendment made to the bye-laws, the 4th respondent Society can conduct medical store as well. In terms of Ext.R4(a) amended bye-laws, the Registrar of Co-operative Societies, by Ext.R4(b) order dated 29.11.2014, granted permission to the Society to start a Neethi Medical Store. Therefore, running of Medical Store is the business of the 4th respondent Society and therefore, the petitioner, who is admittedly running Janaushadhi medical store, after obtaining D&O licence from the local authority, is disqualified under clause (i) of sub-rule (1) of Rule 44 to contest in the election to the Managing Committee of the 4th respondent Society in terms of Ext.P1 election notification.
9. The learned Senior Government Pleader would submit that, at the time of scrutiny of nomination, one Mr.Aneesh, Varikkannamala (Member No.3333), Sarada Sadan, Kurughazha, objected the nomination of the petitioner by producing records to show that the D&O licence issued by the local authority to run Janaushadhi Medical Store stands in the name of the petitioner. It was based on the said objection that the 3 rd respondent WPC 38071 OF 2018 7 Returning Officer rejected the nomination of the petitioner, vide Ext.P2 proceedings dated 16.11.2018. The learned Senior Government Pleader would point out that, at the time of scrutiny of nomination, the petitioner was represented by one Mr.Rajasekharan Nair and the said person received the copy of Ext.P2 order on behalf of the petitioner. The learned Senior Government Pleader would also point out that, the person who objected the nomination of the petitioner is not made a respondent in this writ petition.
10. Having considered the submissions made by the learned counsel on both sides, this Court finds that the question as to whether the petitioner is disqualified under clause (i) of sub-rule (1) of Rule 44 of the Kerala Co-operative Societies Rules is a disputed question of fact, which cannot be decided in a writ petition filed under Article 226 of the Constitution of India. Admittedly, the petitioner is running Janaushadhi Medical Store near the Neethi Medical Store run by the 4 th respondent Society. If the petitioner is having any dispute in connection with the election to the Managing Committee of the 4th respondent Society, scheduled to be held on 01.12.2018 in terms of Ext.P1 WPC 38071 OF 2018 8 notification dated 26.10.2018 issued by the 1st 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 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 Co-operative 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 WPC 38071 OF 2018 9 dispute arising in connection with that election, which can be raised before the Cooperative 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.
11. 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.
WPC 38071 OF 2018 10
12. 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.
13. 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 WPC 38071 OF 2018 11 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.
14. Part IXB of the Constitution of India, inserted by the Constitution (97th Amendment) Act, 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 WPC 38071 OF 2018 12 may, by law, provide for the procedure and guidelines for the conduct of such elections.
15. 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, 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.
16. Viewed in the light of the law laid down in the WPC 38071 OF 2018 13 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 4 th respondent Society scheduled to be held on 01.12.2018 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.
17. 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 4th respondent Society, conducted in terms of Ext.P1 election notification issued by the 1st 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 WPC 38071 OF 2018 14 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 4 th respondent Society, untrammelled by any such observations.
Sd/-
ANIL K. NARENDRAN JUDGE yd WPC 38071 OF 2018 15 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 26.10.2018.
EXHIBIT P2 TRUE COPY OF THE REJECTION ORDER ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE BYE-LAW OF THE SOCIETY. 4TH RESPONDENT'S EXHIBITS:
EXHIBIT R4(A) A TRUE COPY OF THE PORTION OF THE
AMENDED BYELAW OF THE 4TH RESPONDENT
SOCIETY.
EXHIBIT R4(B) A TRUE COPY OF THE ORDER NO.C.S.
(1)37613/2014 DATED 29.11.2014.
EXHIBIT R4(C) A TRUE COPY OF THE FORMAT OF AGREEMENT
OF JEN OUSHADHI.
TRUE COPY
P.A. TO JUDGE