Kerala High Court
Ajayakumar V.R vs The Kerala State Co-Operative Election on 28 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
WEDNESDAY, THE 28TH DAY OF NOVEMBER 2018 / 7TH AGRAHAYANA, 1940
WP(C).No. 37812 of 2018
PETITIONER:
AJAYAKUMAR V.R.,
MEMBER NO . 6402, PULLAD SERVICE CO-OPERATIVE
BANK LTD NO .195, PULLAD,
RESIDING AT VALLUZHATHIL HOUSE,
KURAVANKUZHI P.O, PULLAD, THIRUVALLA,
PATHANAMTHITTA.
BY ADV. SRI.P.C. SASIDHARAN
RESPONDENTS:
1 THE KERALA STATE CO-OPERATIVE ELECTION
COMMISSION,
CO- BANK TOWERS, THIRUVANANTHAPURAM - 695011.
2 THE ELECTORAL OFFICER,
APPOINTED FOR CONDUCT OF ELECTION TO THE
MANAGING COMMITTEE OF PULLAD SERVICE CO-
OPERATIVE BANK LTD.NO.195, PULLAD, (ASSISTANT
REGISTRAR OF CO-OPERATIVE SOCIETIES)-689548.
3 THE RETURNING OFFICER APPOINTED FOR CONDUCT OF
ELECTION TO THE MANAGING COMMITTE OF PULLAD
SERVICE CO-OPERATIVE BANK LTD.NO.195, PULLAD,
(UNIT INSPECTOR, IRAVIPEROOR, OFFICE OF THE
ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,
IRAVIPEROOR), PIN-689548.
4 THE PULLAD SERVICE CO-OPERATIVE BANK
LTD.NO.195, PULLAD, PATHANAMTHITTA,
REPRESENTED BY ITS SECRETARY- 689548.
WPC 37812 OF 2018 2
5 ANEESH,
VARIKKANNAMALA, SARADA SADANAM, KURUNGAZHA P.O,
PULLAD- 689548.
BY ADVS.
R1 TO R3 BY SMT.SHEEJA C.S.,SENIOR GOVT.PLEADER
R4 BY SRI.T.R.HARIKUMAR
SRI.ADITHYA RAJEEV
R5 BY SRI.ARJUN RAGHAVAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.11.2018, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WPC 37812 OF 2018 3
JUDGMENT
The petitioner, who is a member in the 4th respondent Service Co-operative Bank, which is a 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 certiorari to quash Ext.P1 election notification dated 26.10.2018 issued by the 1st respondent State Co-operative Election Commission, whereby election to the Managing Committee of the said Society is scheduled to be held on 01.12.2018, and Ext.P2 final voters list published by the 2 nd respondent Electoral Officer. The petitioner has also sought for a writ of mandamus commanding respondents 1 to 4 to finalise and publish the preliminary voters list and final voters list, strictly in accordance with the provisions contained in the Kerala Co- operative Societies Act and the Rules made thereunder; and a writ of mandamus commanding the 1 st respondent State Co- operative Election Commission to consider Ext.P3 representation and take immediate action.
2. On 22.11.2018, when this writ petition came up for WPC 37812 OF 2018 4 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 respondent 4 and 5, returnable by 26.11.2018.
3. On 26.11.2018, when this writ petition came up for consideration, the learned counsel for the 4th respondent and also the learned counsel for the 5th respondent sought time to file counter affidavit.
4. A counter affidavit has been filed by the 4 th respondent opposing the reliefs sought for in this writ petition.
5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3, the learned counsel for the 4 th respondent and also the learned counsel for the 5th respondent.
6. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P1 election notification or Ext.P2 final voters list published by the 2 nd respondent Electoral Officer 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 the said notification. The WPC 37812 OF 2018 5 grievance of the petitioner is that the final voters list published by the 2nd respondent Electoral Officer is not in conformity with sub- rule (4) of Rule 35A of the Kerala Co-operative Societies Rules, since it does not contain the name of the father or husband or even the details of house, etc. of the voter.
7. Election to the Managing Committee of the 4 th respondent Society is scheduled to be held on 01.12.2018 in terms of Ext.P1 election notification issued by the 1 st respondent State Co-operative Election Commission. In terms of the said notification, the preliminary voters list was published on 29.10.2018 at 11.00 am. The time limit prescribed for submitting objections, if any, to the preliminary voters list was from 11.00 am on 29.10.2018 till 5.00 pm. On 05.11.2018. The 2 nd respondent Electoral Officer has to consider the objections, if any, received to the preliminary voters list, on 07.11.2018 from 11.00 am to 1.00 pm, and thereafter, the final voters list has to be published on 08.11.2018 at 11.00 am.
8. The fact that the 2nd respondent Electoral Officer published Ext.P2 final voters list on 08.11.2018 at 11.00 am is not in dispute. In the writ petition, the petitioner has admitted WPC 37812 OF 2018 6 that he has not chosen to make any objections to the preliminary voters list, within the time limit specified in Ext.P1 election notification. Much after the publication of final voters list, the petitioner moved Ext.P3 representation dated 18.11.2018 before the 1st respondent State Co-operative Election Commission.
9. Relying on the judgment of this Court in Joseph v. Kothamangalam Co-operative Marketing Society Ltd. [1994 (1) KLT 828], the learned counsel for the petitioner would contend that election to the Managing Committee of the 4 th respondent Society cannot be proceeded based on Ext.P2 final voters list. In Joseph's case (supra) this Court was dealing with a case in which the final voters list does not contain the details including the name of the father or husband and address of the members.
10. In the instant case, a perusal of Ext.P2, which is the relevant extract of the final voters list, would show that fathers' name/husbands' name and also the address of the respective members are mentioned in the final voters list in respect of most of the members. At any rate, having failed to raise any objections to the preliminary voters list, within the time limit WPC 37812 OF 2018 7 specified in Ext.P1 election notification, the petitioner cannot raise such issues invoking the writ jurisdiction of this Court. The learned counsel for the 4th respondent Society would also point out that the nomination submitted by the petitioner stands rejected on 16.11.2018 and only thereafter, the petitioner approached the 1st respondent State Co-operative Election Commission with Ext.P3 representation.
11. If the petitioner is having any dispute in connection with the election to the Managing Committee of the 4 th respondent scheduled to be held on 01.12.2018 in terms of Ext.P1 election notification, it is for him to raise such dispute 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 WPC 37812 OF 2018 8 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. If that be so, any dispute in relation to preparation of final voters list 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 remedy available under Section 69 of that Act, within one month from the date of election.
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 Co-operative 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, WPC 37812 OF 2018 9 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.
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 WPC 37812 OF 2018 10 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 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, 2011 deals with Co- WPC 37812 OF 2018 11 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 co- operative 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 (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 Co-operative Arbitration Court unless it is referred to it within one month from WPC 37812 OF 2018 12 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 law laid down in the decisions referred to supra, conclusion is irresistible that if the petitioner is having any dispute in relation to the preparation of final voters list for the election 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.
18. In such circumstances, this writ petition is dismissed without prejudice to the right of the petitioner to raise disputes, if WPC 37812 OF 2018 13 any, in connection with the election held on 01.12.2018 to the Managing Committee of the 4th respondent Society before the Co- operative Arbitration Court, by invoking the statutory remedy under Section 69 of the Act, within one month from the date of election.
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 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 37812 OF 2018 14 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 26.10.2018.
EXHIBIT P2 TRUE COPY OF THE RELEVANT EXTRACT COPY OF THE FINAL VOTERS.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 18.11.2018.
4TH RESPONDENT'S EXHIBITS:
EXHIBIT R4(A) A TRUE COPY OF THE OBJECTION FILED BY THE 5TH RESPONDENT DATED 16.11.2018.
EXHIBIT R4(B) A TRUE COPY OF THE ORDER DATED
16.11.2018 REJECTING THE NOMINATION OF
THE PETITIONER.
TRUE COPY
P.A. TO JUDGE