IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE [ENTITY] WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940 [CASE NUMBER] PETITIONER/S: RAMACHANDRAN,AGED 49 YEARS,FORMER PRESIDENT OF JAIL EMPLOYEES WELFARE CO OPERATIVE SOCIETY LTD. NO. C 1971, PALLIKKUNNU PO, KANNUR 670004 BY ADVS. SRI.P.N.MOHANAN SMT.AMRUTHA SURESH SRI.C.P.SABARI RESPONDENT/S: 1 THE STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ELECTION COMMISSIONER, 3RD FLOOR, CO BANK TOWERS, PALAYAM, VIKAS BHAVAN PO,THIRUVANANTHAPURAM, 695033 2 THE ELECTORAL OFFICER TO JAIL EMPLOYEES WELFARE CO- OPERATIVE SOCIETY LTD NO. C. 1971,ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANNUR-670 001 3 THE RETURNING OFFICER TO JAIL EMPLOYEES WELFARE CO- OPERATIVE SOCIETY LTD NO. C. 1971, UNIT INSPECTOR, KANNUR UNIT I, KANNUR 670 001 4 THE CONVENER, ADMINISTRATIVE COMMITTEE OF JAIL EMPLOYEES WELFARE CO-OPERATIVE SOCIETY LTD NO. C- 1971, PALLIKKUNNU P.O, KANNUR-670 004 5 JAIL EMPLOYEES WELFARE CO-OPERATIVE SOCIETY LTD NO. C.1971,REPRESENTED BY SECRETARY, PALLIKKUNNU P.O, KANNUR-670 004 6 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANNUR-670 001 7 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),KANNUR -670 001 BY ADV.SRI.M.SASINDRAN SMT.MABLE C.KURIEN, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: [CASE NUMBER] 2 JUDGMENT
The petitioner, who is a member and former President of the 5th respondent Jail Employees Welfare Co-operative Society, which is a Society registered under the [ACT], and the rules made thereunder, has filed this writ petition under [SECTION] of the [ACT], seeking a writ of mandamus commanding respondents 1 and 2 to remove the persons included as serial Nos.128 to 173 in Ext.P10 final voters list published by the 2 nd respondent Electoral Officer, as they are enrolled by the 4th respondent Administrative Committee and a further direction to respondents 1 and 3 to conduct election to the Managing Committee of the 5th respondent Society in the office of the Society or in Chelad North L.P.School or Radhavilasam UP School, as per Exts.P8 and P9 consent letters issued by the Headmaster of the respective Institutions, instead of conducting election at a distance of 15 kms. from the headquarters of the Society. The petitioner has also sought for an order to take action against the 6th respondent for filing a false statement before this Court in [CASE NUMBER], as evidenced by Ext.P3; and a declaration that the persons included in the voters list having serial No.128 to 173 are not entitled to vote as they are enrolled by the 4 th respondent Administrative Committee.
2. On 30.10.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice for respondents 1 to 3, 6 and 7. Urgent notice by special messenger was ordered to respondents 4 and 5 returnable by 02.11.2018. The learned counsel for the petitioner, after referring to Ext.P1 order dated 25.07.2013 of the Superintendent of Central Prison, Kannur, pointed out that the averment in paragraph 5 of Ext.P3 statement filed by the 6 th respondent Joint Registrar that the office of the 5th respondent Society is located within Kannur Central Prison compound, is factually incorrect. The learned Senior Government Pleader sought time to get instructions, who was directed to get specific instructions from the 3rd respondent Returning Officer as to the averments in paragraph 1 of the writ petition.
3. A statement has been filed on behalf of respondents 2, 3 and 6. Paragraphs 8 and 9 of the said statement deal with the averments made in paragraph 5 of Ext.P3 statement filed by the 6 th respondent Joint Registrar in [CASE NUMBER].
4. A counter affidavit has been filed by the 4th respondent, opposing the reliefs sought for in this writ petition. Along with the counter affidavit, a copy of Ext.R4(a) order dated 26.07.2017 of the 6th respondent Joint Registrar on the complaint made by certain persons regarding the non granting of membership, is placed on record. In the counter affidavit, it is contended that, despite the specific direction contained in Ext.R4(a) order, the Managing Committee of the 5th respondent Society failed to grant 'A' Class membership to those persons, who are already 'C' class members.
5. The petitioner has filed a reply affidavit dated 10.11.2018 producing therewith Ext.P11 photograph of the Society building and also the sales centre.
6. On 16.11.2018, during the course of arguments, the learned counsel for the 4th respondent pointed out that the Secretary of the 5th respondent Society has already obtained consent letter from the Head Teacher of Puzhathi Central U.P.School, Kanhirathara P.O., Chirakkal, Kannur District for conducting election to the Managing Committee of the Society in the school premises, on 25.11.2018. The learned Senior Government Pleader sought time to get instructions and accordingly, the matter was adjourned.
7. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3, 6 and 7 and also the learned counsel for respondents 4 and 5.
8. During the course of arguments, learned Government Pleader would submit that the 1st respondent [ENTITY] will issue a proper notification regarding the change of venue of election to the Managing Committee of the 5th respondent Society as Puzhathi Central U.P.School, Chirakkal within two days. The said submission is recorded.
9. As already noticed, the grievance of the petitioner in this writ petition are two-fold. One regarding the venue of election and the second regarding inclusion of members with serial No.128 to 173 in Ext.P10 final voters list published by the 2nd respondent Electoral Officer for the election to the Managing Committee of the 5 th respondent Society scheduled to be held on 25.11.2018, in terms of Ext.P7 election notification.
10. As far as the first grievance is concerned, the same now stands redressed, since the learned Government Pleader, on instructions from the 1st respondent [ENTITY], has submitted that the [ENTITY] shall issue a proper notification changing the venue of election as Puzhathi Central U.P.School, Chirakkal within two days.
11. The second grievance of the petitioner is regarding inclusion of members with serial No.128 to 173 in Ext.P10 final voters list published by the 2nd respondent Electoral Officer.
12. During the course of arguments, the learned counsel for the petitioner made available for the perusal of this Court a copy of objection dated 31.10.2018 stated to have been made by the petitioner, before the 2nd respondent Electoral Officer, raising objections to the preliminary voters list. The learned counsel for the petitioner would point out that, endorsement was made by the 2nd respondent Electoral Officer regarding receipt of such objection on 31.10.2018.
13. The learned Government Pleader, after referring to paragraph 23 of the statement filed by respondents 2, 3 and 6, would submit that no such objection has been made by the petitioner within the time limit specified in Ext.P7 election notification. The learned counsel for the 5th respondent Society would also contend that the petitioner has not made any such objection before the 2nd respondent Electoral Officer within the specified time.
14. The question as to whether the petitioner has made any objection to the preliminary voters list within the time limit specified in Ext.P7 election notification need not be adjudicated in this writ petition, especially when the petitioner has not chosen to produce a copy of that objection along with the writ petition or the reply affidavit. Though the petitioner is seeking exclusion of members with serial Nos.128 to 173 in Ext.P10 final voters list, none of those persons have been made party to this writ petition.
15. Having considered the submissions made by the learned counsel on both sides, this Court finds that if the petitioner is having any dispute in connection with the election to the Managing Committee of the 5th respondent Society, which is scheduled to be held on 25.11.2018, in terms of Ext.P7 election notification issued by the 1st respondent [ENTITY], such dispute can be raised before the Co-operative Arbitration Court constituted under [SECTION] of the Act, by invoking the statutory remedy available under [SECTION] of that Act, within one month from the date of election. [SECTION] 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 [SECTION] of the Act. Going by the Explanation to [SECTION], 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. [SECTION] of the Rules deals with the procedure regarding conduct of election to the committee of Societies by the [ENTITY]. If that be so, any dispute in relation to preparation of final voters list by the Electoral Officer or in the conduct of election by the Returning Officer, etc., in exercise of his powers under [SECTION] 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] of the Act, by invoking the statutory remedy available under [SECTION] of that Act, within one month from the date of election.
16. In [PRECEDENT], in the context of [ACT] and [ACT], 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.
17. In [PRECEDENT], in the context of the [ACT] 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.
18. [SECTION] of the [ACT], inserted by the [ACT] deals with Co-operative Societies. [SECTION] inserted by the said Amendment Act deals with election of members of board of Co- operative Societies. As per [SECTION], 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 [SECTION], the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections.
19. In [PRECEDENT] a Three-Judge Bench of the Apex Court held that, [SECTION] of the [ACT] is the mechanism provided by the State Legislature as contemplated under [SECTION] of the [ACT]. After referring to the provisions under [SECTION] 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 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 [SECTION] or the Apex Court under [SECTION], [SECTION] or [SECTION] of the [ACT] can extend the period in election matters.
20. Having considered the submissions made by the learned counsel on both sides and the pleadings and materials on record, conclusion is irresistible that if the petitioner is having any dispute in connection with the election to the Managing Committee of the 5th respondent Society, he has to raise such disputes before the Co- operative Arbitration Court by invoking the statutory remedy available under [SECTION] 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 [SECTION] of the [ACT].
21. In such circumstances, this writ petition is disposed of by recording the submission made by the learned Government Pleader that the 1st respondent [ENTITY] shall issue a proper notification changing the venue of election to the Managing Committee of the 5th respondent Society as Puzhathi Central U.P.School, Kanhirathara P.O., Chirakkal, Kannur District within two days; and without prejudice to the right of the petitioner to raise any dispute arising in connection with the election to the Managing Committee of the 5th respondent Society conducted in terms of Ext.P7 election notification issued by the [ENTITY] by invoking the statutory remedy available under [SECTION] 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 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] of the Act, in connection with the election to the Managing Committee of the 5th respondent Society, untrammelled by any such observations.
[ENTITY], JUDGE [ENTITY]/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 25.07.2013 OF THE [ACT].
EXHIBIT P2 A TRUE COPY OF THE DETAILS OF THE RESOLUTION DATED 21.07.2018 ALONG WITH CONNECTED PAPERS.
EXHIBIT P3 A TRUE COPY OF THE STATEMENT DATED 12.09.2018 FILED FOR AND ON BEHALF OF JOINT REGISTRAR EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 13.09.2018 IN [CASE NUMBER]. EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 17.09.2018 OF THE JOINT REGISTRAR EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 27.09.2018 IN [CASE NUMBER] EXHIBIT P7 A TRUE COPY OF THE ELECTION NOTIFICATION DATED 22.10.2018 OF THE FIRST RESPONDENT.
EXHIBIT P8 A TRUE COPY OF THE CONSENT LETTER DATED 26.10.2018 OF CHALAD NORTH L.P. SCHOOL. EXHIBIT P9 A TRUE COPY OF THE CONSENT LETTER DATED 23.10.2018 OF RADHAVILASAM U.P. SCHOOL. EXHIBIT P10 A TRUE COPY OF THE VOTERS LIST. EXHIBIT P11 A TRUE COPY OF PHOTOGRAPH OF THE SOCIETY AND THE SALES CENTRE RESPONDENTS' EXHIBITS:
ANNEXURE R3(a) TRUE COPY OF THE ORDER DATED 26.07.2017 ANNEXURE R3(b) A TRUE COPY OF THE RELEVANT PAGES OF THE BYE-LAW ANNEXURE R3(c) A TRUE COPY OF THE ONLINE APPLICATION ANNEXURE R3(d) A TRUE COPY OF THE CERTIFICATE DATED 10.10.2018 ANNEXURE R4(a) A TRUE COPY OF THE ORDER DATED 26.7.2017 ISSUED BY THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G)KANNUR, TO GRANT MEMBERSHIP ANNEXURE R4(b) A TRUE COPY OF THE REQUEST SUBMITTED BY 16'C' CLASS MEMBERS FOR CONVERSION OF THEIR STATUS AS A CLASS ANNEXURE R4(c) A TRUE COPY OF THE REQUEST SUBMITTED BY THE ANOTHER 20 C CLASS MEMBERS, FOR CONVERSION OF THE STATUS AS A CLASS AV/21/11