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2019 Supreme(Ker) 21
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Anil K.Narendran, J.
V.Balaram and Ors. – Petitioners
Versus
The Co-Operative Arbitration Court (Northern), Kozhikode and Ors. – Respondents
WP(C).No. 61, 235 of 2019
Decided On : 10-01-2019
For the Petitioner: George Poonthottam (Sr.), Sri. Arun Chandran, Smt. Nisha George, Advs.
For the Respondent: Sri. D.Somasundaram, Sri. P.C. Sasidharan, Sri. Rajit, Smt. C.S. Sheeja, Senior Government Pleader, Advs.
Important points
The constitutional embargo is only for a suitor and not for the Election Commission as evident from Section 28B of the Kerala Co-operative Societies Act- Election Commission has the power of superintendence over the conduct of election and can issue direction in the preparation of electoral roll, of course, on justifiable grounds- This assumes significance since Section 16A of the Co-operative Societies Act empowering the active members alone to participate in the election has since been deleted- The administrative committee constituted pursuant to the interim order dated 20.12.2016 shall continue to be in office till the election process is complete.
Headnote:The Kerala Co-operative Societies Act, 1969- The Constitution of India Article 226- Section 69, Rule 67, sub-section (3) of Section 69, Section 70A, sub-section (2) of Section 69, sub-section (1) of Section 69, Article 71(1), The Maharashtra Co-operative Societies Act, 1960 Section 91- Article 243ZK, Article 32, Article 136 or Article 142, Article 227, Section 9 of the 1971 Act, Section 28B, sub-section (1) of Section 28B, sub-rule (4) of Rule 35A
Facts of the case
The petitioners in this writ petition, who are members of the 4th respondent Bank, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, who have submitted their nomination in the election to the Board of Directors of the said Society, in terms of Ext.P1 notification dated 09.11.2018 issued by the 5th respondent State Co-operative Election Commission, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 ARC No.55 of 2018 filed by respondents 2 and 3 before the 1st respondent Cooperative Arbitration Court; Ext.P4 interlocutory application, i.e., I.A.No.165 of 2018 filed in ARC No.55 of 2018; and also Ext.P5 interim order dated 27.12.2018 of that court in I.A.No.165 of 2018 in ARC No.55 of 2018- The petitioners have also sought for a declaration that the interim order passed by the Co-operative Arbitration Court as per Ext.P5 is an action without authority and by abusing the position as the Presiding Officer of that court, by the present incumbent in that office; and a writ commanding the respondents to conduct election on a day that may be fixed by this Court, preferably on 12.01.2019.
Finding of the courts
The Administrator appointed to manage the day-to-day affairs of the Society takes necessary steps to conduct election to the Board of Directors of the Society, after complying with the statutory requirements, without any further delay-In case no interference is made by the State Co-operative Election Commission on the electoral roll, on any justifiable grounds and with an object to complete the process of election in a fair manner, it is for the Administrator to pass a resolution regarding the date of polling and forward it to the State Co-operative Election Commission through proper channel within two weeks from the date of receipt of a certified copy of this judgment- Based on the resolution so taken by the Administrator, the State Co-operative Election Commission shall issue appropriate notification for the conduct of polling and declaration of result.
Result : Disposed of
Since common issues are raised, these writ petitions are heard together and being disposed of by this common judgment.
2. W.P.(C) No.61 of 2019 :-
The petitioners in this writ petition, who are members of the 4th respondent Bank, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, who have submitted their nomination in the election to the Board of Directors of the said Society, in terms of Ext.P1 notification dated 09.11.2018 issued by the 5th respondent State Co-operative Election Commission, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 ARC No.55 of 2018 filed by respondents 2 and 3 before the 1st respondent Cooperative Arbitration Court; Ext.P4 interlocutory application, i.e., I.A.No.165 of 2018 filed in ARC No.55 of 2018; and also Ext.P5 interim order dated 27.12.2018 of that court in I.A.No.165 of 2018 in ARC No.55 of 2018. The petitioners have also sought for a declaration that the interim order passed by the Co-operative Arbitration Court as per Ext.P5 is an action without authority and by abusing the position as the Presiding Officer of that court, by the present incumbent in that office; and a writ commanding the respondents to conduct election on a day that may be fixed by this Court, preferably on 12.01.2019.
2.1. On 03.01.2019, when this writ petition came up for admission, this Court issued urgent notice on admission by special messenger to respondents 1 to 3, returnable by 07.01.2019. The 4th respondent entered appearance through counsel and the learned Special Government Pleader entered appearance for respondents 5 to 7.
2.2. A counter affidavit has been filed by the 2nd respondent opposing the reliefs sought for in this writ petition. The 3rd respondent has also filed a counter affidavit. The petitioners have filed a reply affidavit to the counter affidavit filed by the 2nd respondent.
3. W.P.(C) No.235 of 2019 :-
This writ petition is filed by the 4th respondent Society in W.P.(C) No.61 of 2019, along with its Board of Directors, seeking a writ of certiorari to quash Ext.P2 interim order dated 27.12.2018 of the 1st respondent Co-operative Arbitration Court in I.A.No.165 of 2018 in ARC No.55 of 2018 (which is Ext.P5 order in W.P.(C)No.61 of 2019) and Ext.P2(a) consequential order dated 29.12.2018 issued by the 4th respondent State Co-operative Election Commission. The petitioners have also sought for a declaration that, as per law, the 1st respondent Co-operative Arbitration Court gets jurisdiction to entertain an arbitration case with regard to the election to a Society only after the election, if it is referred to it, within one month from the date of election. So entertaining an ARC with regard to disputes regarding election in a Society before the election and passing the impugned order staying the election are without jurisdiction. The further reliefs sought for are a writ of mandamus commanding respondents 4 to 6 to conduct election (polling) as per Ext.P1 notification on any date prior to 11.01.2019, so as to ensure what is envisaged in Article 243ZK of the Constitution of India; and a writ of mandamus commanding the 7th respondent to appoint three persons from the existing Board of Directors of the Society to function as Administrative Committee, if in any circumstances the election is to take place after 11.01.2019.
3.1. On 04.01.2019, when this writ petition came for admission, urgent notice on admission by Special Messenger was ordered to respondents 1 to 3. The learned Senior Government Pleader took notice on admission for respondents 4 to 7.
3.2. A counter affidavit has been filed by the 3rd respondent opposing the reliefs sought for in this writ petition. The learned counsel for the petitioners has filed a memo dated 09.01.2019, producing therewith a copy of the request dated 08.01.2019 submitted by the General Manager in-charge of the petitioner Society to the
