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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Anil K. Narendran, Sophy Thomas, JJ.
Malanad Service Co-Operative Bank Ltd. – Petitioner
Versus
Station House Officer Vagamon Police Station – Respondent
W.A.NO.1729 OF 2023
Decided On : 04-10-2023
Kerala Co-operative Societies Act, 1969 - Section 28B, 69(1), 94(4B) - Constitution of India, 1950 - Article 226 - Appointment of an Advocate Observer - Oversee process of election - Permission to record proceedings of polling - Permission to Society to record proceedings of polling and counting in video and appoint an Advocate Observer to oversee entire proceedings of polling and counting scheduled – Appellant Society has not made out a case for appointment of an Advocate Observer to oversee process of election. (Para 13)
Finding of the Court: Court in exercise of writ jurisdiction under Article 226 of Constitution of India, cannot appoint an Advocate Commissioner to oversee entire proceedings of polling and counting in an election of board of management or any officer of Society – Court find absolutely no merits in argument of learned counsel for appellant that learned Single Judge went wrong in not appointing an Advocate Commissioner to oversee entire proceedings of polling and counting scheduled to be held - Learned Single Judge has already made it clear that, if Society makes a request before 3rd respondent Returning Officer for videography, same shall be arranged at expense of petitioner – Court find no reason to interfere with judgment of learned Single Judge to extent of declining prayer sought for appointment of an Advocate Observer to oversee entire proceedings of polling and counting.
Result: Writ appeal dismissed.
JUDGMENT :
Anil K. Narendran, J.
The appellant, namely, Malanad Service Co-operative Bank Ltd., K. 340, Vagamon, a Co-operative Society registered under the provisions of the Kerala Co-operative Societies Act, 1969, filed W.P.(C)No.30797 of 2023, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1st respondent Station House Officer, Vagamon Police Station, to afford adequate and sufficient police protection for the smooth conduct of the polling and counting scheduled to be held on 15.10.2023, from 9.00 a.m. to 4.00 p.m., at Government High School, Vagamon, to elect the Managing Committee of the Society; a writ of mandamus commanding the 3rd respondent Returning Officer to verify the identity cards brought by the members with the register of identity cards maintained by the Society in Form 6B, in case any dispute arises regarding the identity of the voters; and permission to the Society to record the proceedings of the polling and counting in video and appoint an Advocate Observer to oversee the entire proceedings of the polling and counting scheduled to be held on 15.10.2023, from 09.00 a.m. to 4.00 p.m., at the Government High School, Vagamon.
2. Ext.P1 is a copy of the election notification dated 01.09.2023 issued by the 2nd respondent State Co-operative Election Commission and Ext.P2 is a copy of the representation dated 08.09.2023 made by the Secretary of the Society before the 1st respondent Station House Officer, seeking police protection. Ext.P3 is a copy of the circular dated 20.11.2013 issued by the State Police Chief, in the light of the judgment of this Court dated 17.10.2013 in W.P.(C)No.24603 of 2013, whereby it was ordered that the Police would, by themselves, without any direction from any court, ensure that elections in Co-operative Societies are conducted smoothly, without any disturbance to the law and order.
3. By the impugned judgment, the learned Single Judge disposed of W.P.(C)No.30797 of 2023, directing the 1st respondent to provide adequate police protection for the smooth conduct of the election scheduled to be held on 15.10.2023. If the Society makes a request, the 3rd respondent Returning Officer shall arrange videography at the expense of the Society. However, the prayer for the appointment of an Advocate Observer to oversee the entire proceedings of the polling and counting scheduled to be held on 15.10.2023 was declined. The operative portion of the judgment dated 27.09.2023 reads thus;
(i) The 1st respondent shall provide adequate Police protection for the smooth conduct of the election scheduled to be held on 15.10.2023.
(ii) If the petitioner makes a request before the 3rd respondent for videography, the same shall be arranged at the expense of the petitioner.
(iii) As regards the prayer for the appointment of an observer, I do not think that circumstances warrant such a direction.”
4. Heard Sri. P.V.Baby, the learned Counsel for the appellant Society, Smt. K.M. Rashmi, the learned Senior Government Pleader and Sri. C.M. Nazar, the learned Standing Counsel for the State Co-operative Election Commission.
5. The learned Counsel for the appellant would contend that the learned Single Judge went wrong in not appointing an Advocate Observer to oversee the entire proceedings of the polling and counting scheduled to be held on 15.10.2023, to elect the Managing Committee of the Society. The learned counsel would point out that, in the nearby Kattappana Service Co-operative Bank and Koovappilly Service Co-operative Bank in Kottayam District, a learned Single Judge of this Court appointed Advocate Observers to oversee the election process. The learned counsel has handed over for the perusal of this Court a copy of the interim order dated 22.03.2023 of a learned Single Judge in W.P.(C)No.10049 of 2023, in respect of Anapanthy Service Co-operative Bank Ltd. in Kannur
Kerala Co-operative Societies Act deal with procedure for adjudication of any dispute arising in connection with election of board of management or any officer of a Co-operative Society.
Elections of cooperative societies must adhere strictly to statutory provisions, limiting the court's ability to appoint observers despite any requests.
Rule 35A of Kerala Co-operative Rules, 1969 deals with procedure regarding conduct of election to committee of Societies by State Co-operative Election Commission.
A writ of mandamus can only be issued where a statutory duty exists and there has been a failure to perform it; it cannot mandate actions contrary to statutory provisions.
The denial of voting rights based on discrepancies in the Form 6B register was illegal and not permitted by the KCS Act and Rules. The court set aside the election and directed a fresh polling date i....
The main legal point established in the judgment is that the denial of voting rights based on discrepancies in the Form 6B register was illegal and not permitted by the KCS Act and Rules. The court e....
Elections for a co-operative society must be conducted before the board's term expires, and postponement requires valid legal grounds, not merely the absence of police protection.
Compliance with statutory election procedures within cooperative societies is mandatory to ensure valid electoral processes; neglecting to notify ineligible voters invalidates election actions.
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