Kerala High Court
A.K.Unnikrishnan vs State Co-Operative Election ... on 7 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 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940
WP(C).No. 33685 of 2018
PETITIONER:
A.K.UNNIKRISHNAN
AGED 59 YEARS
S/O RAGHAVAN NAIR C, KANDAPPAN THODIYIL, MANASSERRY,
MUKKOM, KOZHIKODE -673602
BY ADVS.
SRI.M.M.MONAYE
SMT.BINCY JOSE
SRI.B.NAMADEVA PRABHU
RESPONDENTS:
1 STATE CO-OPERATIVE ELECTION COMMISSION
REPRESENTED BY ITS SECRETARY, CO-BANK TOWERS,
THIRUVANANTHAPURAM
2 ELECTORAL OFFICER
THE MUKKOM SERVICE CO OPERATIVE BANK LTD NO.F1241,
OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE
SOCIETIES (GENERAL), KOZHIKODE
3 THE RETURNING OFFICER
THE MUKKOM SERVICE CO OPERATIVE BANK LTD NO.F1241,
KUNNAMANGLAM UNIT INSPECTOR, OFFICE OF THE ASSISTANT
REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL),
KOZHIKODE
4 THE MUKKOM SERVICE CO-OPERATIVE BANK LTD NO.F1241,
MANASSERY, MUKKOM, KOZHKODE-673 602,
REPRESENTED BY ITS SECRETARY
R4 BY ADV. SRI.P.P.JACOB
SRI K.P HARISH,SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)No.33685 of 2018
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J U D G M E N T
The petitioner, who is a member of the 4 th respondent Service Co-operative Bank which is a Co- operative 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 respondents to prepare and publish the voters list including all the members who are illegally removed from Ext.P3 final voters list published on 15.10.2013. The petitioner has also sought for an order directing respondents 1 to 3 to conduct election to the managing committee of the 4th respondent Bank after finalisation of the voters list, duly rectifying Ext.P3, after including all the eligible members. The petitioner has also sought for other consequential reliefs.
W.P.(C)No.33685 of 2018
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2. On 15.10.2018, 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 4th respondent Bank.
The learned Senior Government Pleader sought time to get instructions from the 2nd respondent Electoral Officer.
3. The pleadings and materials on record would show that election to the Managing Committee of the 4th respondent Bank is scheduled to be held on 11.11.2018 in terms of Ext.P1 notification dated 3.10.2018 issued by the 1st respondent State Co- operative Election Commission. As per the said notification, a preliminary voters list was published on 8.10.2018. Objections, if any, to the preliminary list were called for from 11.00 p.m. on 8.10.2018 to 5.00 p.m. on 15.10.2018. According to W.P.(C)No.33685 of 2018 :-4-:
the petitioner, he submitted Ext.P2 objection before the 2nd respondent Electoral Officer against exclusion of his name from the preliminary voters list published in terms of Ext.P1 notification. Ext.P6 is another objection dated 11.10.2018 stated to have been made by other members of the 4 th respondent Bank. After considering the objections received to Ext.P4 preliminary voters list, the 2nd respondent Electoral Officer published a final voters list, on 17.10.2018. In the final voters list, the name of the petitioner is not included. Feeling aggrieved, the petitioner has filed this writ petition seeking various reliefs.
4. A counter affidavit has been filed by the 4th respondent Bank, wherein it has been stated that final voters list contains the name of eligible members who are entitled to exercise their voting right in the election to the Managing Committee of W.P.(C)No.33685 of 2018 :-5-:
the 4th respondent Bank scheduled to be held on 11.11.2018 in terms of Ext.P1 notification. In the said counter affidavit it has also been stated that, there was enhancement of share value to Rs.500/- vide Ext.R4(a) amendment made to the bye-
laws. Relying on the documents produced along with the counter affidavit, the 4th respondent Bank would contend that the amendment made to the bye-laws was registered with the Joint Registrar of the Co- operative Societies, Kozhikode and that necessary publications were also effected in newspapers. Even in the year 2016, the publications were effected in newspapers giving an opportunity to the members to remit the enhanced share value. The petitioner and others, who have not remitted the enhanced shared value in terms of the aforesaid amendment, find no place in the final voters list published in terms of Ext.P1 notification and their exclusion is W.P.(C)No.33685 of 2018 :-6-:
perfectly legal which warrants no interference in this writ petition.
5. The fact that the name of the petitioner is not included in the final voters list published pursuant to Ext.P1 election notification is not in dispute. The fact that the petitioner has not remitted the enhanced share value of Rs.500/- in terms of the amendment made to the bye-laws of the 4th respondent Bank is also not in dispute.
6. If the petitioner is having any dispute in connection with the election to the Managing Committee of the 4th respondent Society, which is scheduled to be held on 11.11.2018, in terms of Ext.P1 election notification 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 W.P.(C)No.33685 of 2018 :-7-:
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. If that be so, any dispute in relation to preparation of final voters list by the Electoral Officer, in exercise of his powers under W.P.(C)No.33685 of 2018 :-8-:
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 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 W.P.(C)No.33685 of 2018 :-9-:
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 courts, possibly no election would be completed without court's order. Very often, for frivolous reasons, candidates or others approach the courts W.P.(C)No.33685 of 2018 :-10-:
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 consequence of not W.P.(C)No.33685 of 2018 :-11-:
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 W.P.(C)No.33685 of 2018 :-12-:
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.
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 Co- W.P.(C)No.33685 of 2018
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operative 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.
12. 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 election to the managing committee of the 4th respondent Bank scheduled to be held on 11.11.2018 in terms of Ext.P1 notification issued by the 1st respondent State Co-operative W.P.(C)No.33685 of 2018 :-14-:
Election Commission, he has 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.
13. 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 Bank, 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 W.P.(C)No.33685 of 2018 :-15-:
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 4th respondent Bank, untrammelled by any such observations.
Sd/-
ANIL K.NARENDRAN JUDGE ami/7.11.18 W.P.(C)No.33685 of 2018 :-16-:
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ELECTION NOTIFICATION DATED 3.10.2018 EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 11.10.2018 EXHIBIT P3 TRUE COPY OF THE FINAL VOTERS LIST DATED 15.10.2013 EXHIBIT P4 TRUE COPY OF THE PRELIMINARY VOTERS LIST DATED 8.10.2018 EXHIBIT P5 TRUE COPY OF THE REPRESENTATION TO THE 1ST RESPONDENT STATE CO-OPERATIVE ELECTION COMMISSION DATED 11.10.2018 EXHIBIT P6 TRUE COPY OF REPRESENTATION DATED 11.10.2018 EXHIBIT P7 TRUE COPY OF THE INFORMATION DATED 20.10.2018 ISSUED BY THE PUBLIC INFORMATION OFFICER.
RESPONDENTS' EXTS.:
EXT.R4(a) TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE RESOLUTION NO.8(6) OF THE COMMITTEE DATED 13.11.15 EXT.R4(b) TRUE PHOTOCOPY OF THE GENERAL BODY NOTICE PUBLISHED IN CHANDRIKA DAILY DATED 19.11.2015 EXT.R4(c) TRUE PHOTOCOPY OF THE GENERAL BODY NOTICE PUBLISHED IN VEEKSHANAM DAILY DATED 19.11.2015 W.P.(C)No.33685 of 2018 :-17-:
EXT.R4(d) TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE GENERAL BODY RESOLUTION NO.9 DATED 5.12.2015 EXT.R4(e) TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE FOURTH RESPONDENT TO THE JOINT REGISTRAR DATED 26.12.2015 EXT.R4(f) TRUE PHOTOCOPY OF THE PROCEEDING ISSUED BY THE JOINT REGISTRAR DATED 26.9.2016 EXT.R4(g) TRUE PHOTOCOPY OF THE PAPER NOTIFICATION PUBLISHED IN MATHRUBHUMI DAILY DATED 10.11.2016 EXT.R4(h) TRUE PHOTOCOPY OF THE PAPER NOTIFICATION PUBLISHED IN MALAYALA MANORAMA DAILY DATED 10.11.2016.
//TRUE COPY// ami/ P.A.TO JUDGE