Kerala High Court
Thomas George vs State Of Kerala on 5 October, 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 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940
WP(C).No. 32320 of 2018
PETITIONERS:
1 THOMAS GEORGE,
AGED 70 YEARS,
(MEMBER SHIP NO.3252) S/O GEORGE,
RESIDING AT ANJILIMOOTTIL HOUSE,
THANNITHODU P.O.,
PATHANAMTHITTA DISTRICT-689699.
2 AMMINI THOMAS,
AGED 64 YEARS,
(MEMBER SHIP NO.4297) W/O. THOMAS,
RESIDING AT ANJILIMOOTTIL HOUSE ,
THANNITHODU P.O.,
PATHANAMTHITTA DISTRICT-689699.
3 AJITHA SOMAN,
AGED 29 YEARS,
(MEMBERSHIP NO.6324) W/O.SOMAN,
RESIDING AT MADAMBYSSERIL HOUSE,
THEKKUTHODU P.O., PARAKULAM,
PATHANAMTHITTA DISTRICT-689699.
4 K.K.VIPIN,
AGED 33 YEARS,
(MEMBERSHIP NO.6496) S/O.KUTTAPPAN,
RESIDING AT KUZHITHUNDIL VEEDU,
THEKKUTHODU P.O.,
PATHANAMTHITTA DISTRICT-689699.
5 K.K.SMITHA,
AGED 35 YEARS,
(MEMBERSHIP NO.6497) S/O.KUTTAPPAN,
RESIDING AT KUZHITHUNDIL,
THEKKUTHODU P.O.,
PATHANAMTHITTA DISTRICT-689699.
6 PREETHA R PILLAI,
AGED 35 YEARS,
(MEMBERSHIP NO.8158) W/O. RADHAKRISHNA PILLAI,
RESIDING AT SREE NILAYAM,
THANNITHODU P.O.,
PATHANAMTHITTA DISTRICT-689699.
WP(C).No. 32320 of 2018 -2-
7 P.R.RADHAKRISHNA PILLAI,
AGED 48 YEARS,
(MEMBERSHIP NO.8159) S/O. RAMAKRISHNA PILLAI,
RESIDING AT SREE NILAYAM,
THANNITHODU P.O.,
PATHANAMTHITTA DISTRICT-689699.
8 MADHAVAN V.N.,
AGED 70 YEARS,
MEMBERSHIP NO. 8611) S/O.NARAYANAN,
RESIDING AT VELLACHIRAVAYALIL,
THANNITHODU P.O.,
PATHANAMTHITTA DISTRICT-689699.
9 MONISH M. DANIEL,
AGED 29 YEARS,
(MEMBERSHIP NO.8612) S/O. M.T.DANIEL,
RESIDING AT MUTTUMANNIL,
THANNITHODU P.O.,
PATHANAMTHITTA DISTRICT-689699.
BY ADVS.
SRI.T.MADHU
SMT.C.R.SARADAMANI
ROY THOMAS (PATHANAMTHITTA)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
CO-OPERATIVE SOCIETIES DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM-695001.
3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
PATHANAMTHITTA-689645.
4 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL),
THE ELECTORAL OFFICER,
KOZHENCHERY,
PATHANAMTHITTA DISTRICT-689654.
WP(C).No. 32320 of 2018 -3-
5 THE SECRETARY,
THANNITHODU SERVICE CO-OPERATIVE BANK LTD.Q-364,
THANNITHODU P.O.,
PATHANAMTHITTA DISTRICT-689699.
6 THE STATE CO-OPERATIVE ELECTION COMMISSION,
THIRUVANANTHAPURAM
REPRESENTED BY ITS SECRETARY-695001.
R1-R4,R6 SMT. SHEEJA C.S., SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.10.2018, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
JUDGMENT
The petitioners, who are members of the 5 th respondent Co-operative Bank, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 election notification dated 07.09.2018 issued by the 6th respondent State Co-operative Election Commission, whereby election to the Managing Committee of the said Society is scheduled to be held on 10.10.2018. The petitioner has also sought for a writ of mandamus commanding the 4th respondent Electoral Officer to reconsider Ext.P2 objection made by the petitioners and others against the draft voters' list published on WP(C).No. 32320 of 2018 -4- 11.09.2018 and take appropriate action thereon, as expeditiously as possible, within a time frame to be fixed by this Court.
2. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for respondents 1 to 4 and 6.
3. The grievance of the petitioners, who are stated to be members of the 5th respondent Co-operative Bank, is that their names are not included in the final voters' list published by the 4th respondent Electoral Officer, in terms of Ext.P1 election notification issued by the 6th respondent State Co-operative Election Commission.
4. In terms of Ext.P1 notification, the 4th respondent Electoral Officer published a preliminary voters' list on 11.09.2018 and time was granted from 11.09.2018 at 11.00 am to 17.09.2018 at 5.00 pm for submitting objections, if any. The petitioners along with others submitted Ext.P2 objection, wherein it has been stated that the members of the 4th respondent Bank WP(C).No. 32320 of 2018 -5- are denied a reasonable opportunity to pay the enhanced share value and retain their membership.
5. Going by the averments in Ext.P2 objection, though the notice published by the 4th respondent Bank giving opportunity to the members to pay enhanced share value was published in Mathrubhumi Daily and Desabhimani Daily having circulation in the area in question, on 09.08.2018, Mathrubhumi Daily was not available for circulation in the area as the bundle containing the said newspaper was clandestinely removed by some persons to prevent the said notice reaching the hands of the members of the 4 th respondent Bank. Other allegations are also raised in Ext.P2 objection. Though, in terms of Ext.P1 notification, the final voters' list was published on 18.09.2018, after considering the objections made by the members, the petitioners have chosen to approach this Court by filing this writ petition only on 01.10.2018. Now in terms of Ext.P1 election notification, the polling is WP(C).No. 32320 of 2018 -6- scheduled to be held on 10.10.2018.
6. If the petitioners are having any dispute in connection with the election to the Managing Committee of the 5th respondent Bank, which is scheduled to be held on 10.10.2018, in terms of Ext.P1 election notification issued by the 6th 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 to 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 WP(C).No. 32320 of 2018 -7- 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. If that be so, any dispute in relation to preparation of final voters list by the Electoral Officer, in exercise of his powers under 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.
7. 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 Co-operative Societies Elections to WP(C).No. 32320 of 2018 -8- 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.
8. 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 WP(C).No. 32320 of 2018 -9- 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.
9. 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 WP(C).No. 32320 of 2018 -10- 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.
10. 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 WP(C).No. 32320 of 2018 -11- 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.
11. 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 WP(C).No. 32320 of 2018 -12- 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.
12. Viewed in the light of the law laid down in the decision referred to supra, conclusion is irresistible that, if the petitioners are having any dispute in connection with the election conducted to the Managing Committee of the 5 th respondent Bank, in terms of Ext.P1 election notification, it is for them to approach the Co- operative Arbitration Court by filing appropriate application, invoking the provisions under Section 69 of the Act, within one month from the date of election.
Without prejudice to the aforesaid right of the petitioners, this writ petition is dismissed.
Sd/-
ANIL K.NARENDRAN JUDGE WP(C).No. 32320 of 2018 -13- APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE NOTIFICATION DATED 7.9.2018 ISSUED BY THE SIXTH RESPONDENT.
EXHIBIT P2 THE TRUE COPY OF THE OBJECTION DATED 12.9.2018 TO THE DRAFT VOTER'S LIST PUBLISHED BY THE FOURTH RESPONDENT.
EXHIBIT P3 THE TRUE COPY OF THE RECEIPT DATED 15.9.2018 ISSUED BY THE THIRD RESPONDENT.
RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE bpr