Kerala High Court
Sunny Cherian vs The Electoral Officer on 7 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.HARIPAL
THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942
WA.No.38 OF 2021
AGAINST THE ORDER DATED 22.12.2020 IN WP(C) 27583/2020(W) OF
HIGH COURT OF KERALA
APPELLANTS/PETITIONERS:
1 SUNNY CHERIAN,AGED 54 YEARS
S/O.CHERIAN, KUTTIPPURATHU HOUSE,
KATTAPPANA P.O, IDUKKI DISTRICT, PIN 685 808.
2 REJI THOMAS,AGED 49 YEARS
S/O. THOMAS, AMBATTU HOUSE, UPPUKANDAM P.O,
IDUKKI DISTRICT, PIN 685 514.
3 MATHEW JOSEPH,AGED 60 YEARS
S/O. JOSEPH, PULIKKATHAZHE, KADAMAKKUZHI P.O,
IDUKKI DISTRICT, PIN 685 515.
4 P.J THOMAS,AGED 66 YEARS
S/O. JOSEPH, PORUNNOLIL, KATTAPPANA P.O,
IDUKKI DISTRICT, PIN 685 508.
5 JOY THOMAS, AGED 65 YEARS
S/O. THOMAS, POOVATHUMOOTTIL, KOZHIMALA P.O,
IDUKKI DISTRICT, PIN 685 511.
6 BHAVANA SUBHASH,AGED 55 YEARS
W/O. SUBHASH, MARIPPURATH, VELLAYAMKUDI P.O,
IDUKKI DISTRICT, PIN 685 515.
W.A.No.38 of 2021 2
7 P.S MARYDASAN,AGED 59 YEARS
S/O.SEBASTIAN, PANDYAMAKKAL, KATTAPPANA P.O,
IDUKKI DISTRICT, PIN 685 508.
BY ADVS.SRI.K.K.CHANDRAN PILLAI (SR.)
SMT.S.AMBILY
SRI.SAJI THOMAS
SHRI.MICKY THOMAS
RESPONDENTS/RESPONDENTS:
1 THE ELECTORAL OFFICER,
ELECTION TO THE BOARD OF DIRECTORS OF KATTAPPANA
RURAL DEVELOPMENT CO-OPERATIVE SOCIETY LTD NO.
1591 KATTAPPANA P.O, IDUKKI DISTRICT,
PIN 685 508.
(ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL), OFFICE OF THE ASSISTANT REGISTRAR OF
CO-OPERATIVE SOCIETIES (GENERAL),
NAYARUPARA P.O, IDUKKI DISTRICT, PIN 685 602)
2 THE STATE COOPERATIVE ELECTION COMMISSION
OFFICE OF THE STATE CO-OPERATIVE ELECTION,
VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN 695 033.
3 KATTAPPANA RURAL DEVELOPMENT CO-OPERATIVE
SOCIETY LTD NO 1-591,KATTAPPANA P.O,
IDUKKI, REPRESENTED BY ITS SECRETARY.
4 THE BOARD OF DIRECTORS (RULING FRONT)
KATTAPPANA RURAL DEVELOPMENT CO-OPERATIVE
SOCIETY LTD. NO. 1-591, KATTAPPANA P.O.,
IDUKKI, PIN 685 508
REPRESENTED BY ITS PRESIDENT.
5 M.J VARGHESE, AGED 64 YEARS
S/O. JOSEPH, MUTHUPLACKAL HOUSE,
EZHUKUMVAYAL P.O, IDUKKI DISTRICT, PIN 685 583.
6 K.R SODHARAN, AGED 65 YEARS
S/O. RAMAN, KANJIRAMUKALIL, KATTAPPANA SOUTH
P.O, IDUKKI DISTRICT, PIN 685 515.
W.A.No.38 of 2021 3
7 K.N CHANDRAN, AGED 58 YEARS
S/O. NARAYANAN, KARIMPANATHOTTIYIL,
THOVARAYAR P.O, IDUKKI DISTRICT, PIN 685 511
8 JOINT REGISTRAR OF CO-OPERTIVE SOCIETIES
(GENERAL), PAINAVU P.O, IDUKKI, PIN 685 603.
9 THE SECRETARY, KATTAPPANA RURAL DEVELOPMENT
CO-OEPRATIVE SOCIETY LTD NO. 1-591,
KATTAPPANA P.O, IDUKKI, PIN 685 508.
10 STATE OF KERALA,
REPRESENTED BY THE SPECIAL SECRETARY,
CO-OPERATION DEPARTMENT, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
R1 & R2 BY S.C.SRI.R.LAKSHMI NARAYANAN
R3, R4 & R9 BY S.C.SRI.P.C.SASIDHARAN
R8 & R10 BY G.P.SRI.RENIL ANTO KANDAMKULATHY
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No.38 of 2021 4
JUDGMENT
Ravikumar, J.
This intra-court appeal is directed against the interim order
dated 22.12.2020 in W.P.(C)No.27583 of 2020. The writ petitioners are
the appellants. They filed the writ petition mainly seeking quashment
of Ext.P5 Government Order dated 23.4.2020 extending the period of
Board of Directors of various Co-operative Societies up to January, 2021
and seeking issuance of a writ of mandamus or appropriate writ
commanding the first respondent viz., the Electoral Officer to remove
the names of the members of the third respondent Co-operative Society
as contained in Ext.P22 from the final voters' list published by the first
respondent in connection with the election to the Board of Directors of
the third respondent scheduled as per Exts.P6 and P7. They also
sought declarations on the following lines:-
"e) To declare by the issuance of appropriate writ, order or
direction that the 3rd and 4th respondents are
incompetent to take Ext.P7(a) resolution requesting
the 2nd respondent to conduct election to the Board of
Directors of the 3rd respondent.
f) To declare by the issuance of appropriate writ, order or
direction that the third and 4th respondents have no
competence to admit new members with voting right
to the third respondent on the basis of the extension of
the period of the committee as per Ext.P5;
g) To declare by the issuance of appropriate writ, order or
direction that the enblock enrollment of members to
the 3rd respondent Society as contained in Exts.P16
and P22 without complying with the provisions
contained in Section 16 of the Kerala Cooperative
Societies Act 1969 and Rule 16 of the Kerala
Cooperative Societies Rules 1969 is illegal and
therefore to quash Exts.P16 and P22 by the issuance
of a writ in the nature of certiorari or such other
appropriate writ order or direction ."
By way of an interim relief they prayed thus:-
"For the reasons stated in the writ petition and in the
affidavit accompanying thereto, it is humbly prayed
that this Hon'ble Court may be pleased to stay all
further proceedings by respondents 1 & 2 for
conducting election to the Board of Directors of the 3 rd
respondent Society scheduled on 10.01.2021 pursuant
to Exts.P6 & P7 during the pendency of the above writ
petition before this Hon'ble Court."
The learned Single Judge after hearing the arguments of the learned
counsel on both sides declined to grant the interim relief sought for, as
per the impugned order dated 22.12.2020. This appeal is preferred in
the said circumstances.
2. Heard the learned Senior Counsel Sri.K.K.Chandran Pillai
for the appellants, Sri.P.C.Sasidharan, the learned counsel appearing
for respondent Nos.3, 4 and 9, learned Standing Counsel Sri.R.Lakshmi
Narayanan for respondent Nos.1 and 2 as also the learned Government
Pleader.
3. Ext.P6 is the election notification dated 24.11.2020
issued by the 2nd respondent. Going by the same, election to the
Managing Committee of the third respondent society is to be held on
10.1.2021 from 9 a.m. onwards. Prayer No.(d) in the writ petition itself
would reveal that after issuing a preliminary voters' list in the matter of
conduct of election to the Managing Committee of the third respondent
a final voters' list was also published. The counter affidavit filed in the
writ petition on behalf of respondents 4 to 7 would reveal that the final
voters' list was published on 5.12.2020. These facts are not in dispute.
As noticed hereinbefore, in terms of Ext.P6 election notification election
is scheduled to be held on 10.1.2021. The impugned interim order
passed by the learned Single Judge would reveal that taking into
account the nature of the allegations the Writ Court prima facie arrived
at the conclusion that disputed questions of fact involved for resolution
in the writ petition and they could not be gone into in the writ petition
at present. Taking note of the aforesaid situations as also the decisions
of the Hon'ble Apex Court in S.S.S.J.S. (M.M.) S.D.U. Sanstha v.
State of Maharashtra (AIR 2001 SC 3982), Shaji K. Joseph v.
V.Viswanath [(2016) 4 SCC 429] and Shri Sant Sadguru
Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak
Sanstha and Anr. v. State of Maharashtra and Ors. [(2001) 8 SCC
509] the learned Single Judge declined to pass an interim order as
sought for, virtually, holding that once the election process was
commenced the same shall not be interfered with. We may hasten to
hold that though this Court would be loathe to interfere with an election
process once it is commenced there is no inflexible or invaluable
position interdicting interference with an election process. The
pleadings in this appeal and the writ petition would reveal that the
appellants allege illegality in the matter of extension of the term of
Managing Committees of Co-operative Societies beyond five years as
per Ext.P5 and according to them, the third and fourth respondents got
no competence to admit new members with voting right to the third
respondent society during the extended period of the term. Essentially,
they allege non-compliance with the statutory provisions for enrollment
of members and also allege enmasse enrollment in blatant violation of
the prescribed procedures. The appellants also allege non-consideration
of objections raised by them against the preliminary voters' list.
Virtually, the appellants want to disfranchise a large number of
members whose names figured not only in the preliminary voters' list
but also in the final voters' list and that is why they seek removal of
names of members of the third respondent contained in Ext.P22 from
the final voters' list. The tenor of the pleadings in the writ petition as
also in the writ appeal would undoubtedly go to show that the
appellants are fully aware of the publication of the final voters' list. In
this context, it is to be noted that there is no challenge against the final
voters' list and it is also not produced either in the writ petition or in the
writ appeal. Be that as it may, the indisputable position is that election
is scheduled as per Ext.P6 to be held on 10.1.2021 and in that regard in
terms of the election notification preliminary voters' list as also final
voters' list were published. Ineligibility of a large number of members
of the third respondent society to be eligible for voting is under
challenge raising enmasse enrollment in flagrant violation of the
statutory provisions governing enrollment.
4. Upon hearing the learned Senior Counsel appearing for
the appellants and going through the pleadings in this appeal as also in
the writ petition we do concur with the learned Single Judge that fact
finding exercise to certain extent requires to fix the tenability of the
allegations raised. To what extent such exercise is possible or
permissible in view of the nature of the allegations with supporting
materials is certainly a matter initially for the Writ Court to consider.
The observations and findings of the learned Single Judge in the
impugned interim order can only be taken as prima facie conclusions
and findings arrived at for the purpose of deciding the entitlement of
the appellants to the interim relief sought for. In view of the fact that
the main prayer in the writ petition is for quashment of Ext.P5 whereby
the term of the committee of the third respondent as also all the Co-
operative Societies was extended beyond the period of five years, to be
precise, for a period of five years and six months and consequential
declaration is also sought for to the extent that the third and fourth
respondents were incompetent to admit members into the third
respondent society during the extended period, we are of the
considered view that the conduct of the election as scheduled by itself
would not defeat the case and contentions of the appellants. Certainly,
depending on the fate of challenge against the competency to extend
the term of Co-operative Societies as has been done under Ext.P5 the
legality of enrollment effected during the extended period as also the
right to cast votes by such enrolled members have to be decided.
Several contentions were raised based on various statutory provisions
before us. However, taking note of the aforesaid position as also the
fact that a probe into such matters and any observation or finding
would leave nothing for decision in the writ petition, we are of the view
that without entertaining such contentions at this stage and in view of
the pendency of the writ petition it is only befitting to leave the entire
matter to be decided in the writ petition, however, making it clear that
the entire proceedings including the conduct of election would be
subject to the result of the writ petition. Ordered accordingly.
The Writ Appeal stands disposed of as above.
Sd/-
C.T.RAVIKUMAR
Judge
Sd/-
K.HARIPAL
Judge
TKS
APPENDIX
APPELLANTS'ANNEXURES:
ANNEXURE-1 COPY OF CIRCULAR NO.E(2)27/2011/SCES(CIRCULAR
NO.07/2011) DATED 21.10.2011 OF THE COOPERATIVE
ELECTION COMMISSION.
ANNEXURE-2 COPY OF CIRCULAR NO.E(2)399/2011/SCES(CIRCULAR
NO.09/2012) DATED 10.07.2012 OF THE COOPERATIVE
ELECTION COMMISSION.
ANNEXURE-3 COPY OF LETTER NO C R B. 3931/2020 DATED
10.11.2020 OF THE JOINT REGISTRAR OF CO-
OPERATIVE SOCIETIES, IDUKKI.
ANNEXURE-4 COPY OF LETTER NO 930/2020 DATED 21.12.2020 OF
THE ASSISTANT REGISTRAR OF COOPERATIVE
SOCIETIES, IDUKKI.
TKS
