REJI THOMAS & ORS. versus THE STATE OF KERALA & ORS. on 19 April 2018

1. Leave granted.

G2. Whether the High Court, in exercise of its power under Article226 of the Constitution of India could have extended the statutory period,within which an Election Petition under the Kerala Cooperative SocietiesAct, 1969 (in short, “the Act”) should have been entertained, is the legalquestion arising for consideration in these appeals.

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3. The dispute pertains to the election to the Thiruvalla EastCooperative Bank Ltd. (hereinafter referred to as, “CooperativeSociety”). Writ Petition (C) No. 34019 of 2016 and other connectedmatters filed before the High Court of Kerala pertain to the election tothe Cooperative Society. The prayers in the writ petition read asfollows :- “i) Issue a writ of certiorari, or other appropriate writ, orderor direction to quash Ext. P3 election notification, Ext. P4preliminary voters list, and Ext. P9 final voters list.

ii) To direct the respondents to prepare an electoral roleincluding all the members of the society and publish andconduct the election with that voters list.

iii) To declare that the exclusion of members from the voterslist for the ensuring election prepared applying Section 16Aand 19A of the Cooperative Societies Act is inoperative andthat in view of the exemption order issued by the Governmentby G. O. (P) No. 100/16 dated 15/10/2016 all members of thesociety are entitled to exercise their franchise in the election.

iv) Issue a writ of mandamus or other appropriate writ, orderor direction directing the respondents to prepare the voterslist including all members of the society and re-notify theelection in accordance with law.”

4. The learned Single Judge referred all the matters to a LargerBench by order dated 27.10.2016. The Division Bench, as per orderdated 01.11.2016 passed an interim order. The order reads as follows :- “1. We would not have normally interfered with the electionprocess to the managing committee of the Thiruvalla EastCo-operative Bank Limited but for the startling developmentsunfolded. It is not in dispute that the election calender hasbeen published pursuant to the judgment in W.A. No. 1869/2016 as per which the polling has to take place on 05/11/2016. But what baffles us is the fact that the final voters listcontains only 28 members as against 611 members found inthe preliminary voters list published. The reason for suchdrastic depletion in the number of members eligible to votehas been disclosed in the statement filed by the electoral officeras follows:

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“Out of more than 70,000 members of the society in the57th General Body Meeting, only 94 members attendedthe meeting. In 58th General Body Meeting, 121 membersattended the meeting. It is recorded that in the 59[th] GeneralBody Meeting, 749 members attended the meeting. Aperusal of the attendance in three consecutive GeneralBody Meetings would show that only 33 members haveattended all the three consecutive General Body Meetingsand out of the said 33 members, only 28 members availedthe service of the Bank for the two consecutive years.”

Thus the reason for exclusion of 611-28 = 583 members isthat they have not attended three general body meetings ofthe society consecutively in order to be eligible for figuringas a voter.

2. There is no hesitation for us to hold that the statutoryprovision contained in Section 16A(1)(b) of the KeralaCo-operative Societies Act has been misconstrued by theelectoral officer. The same reads as follows:

“16A. Ensuring participation of members in themanagement of societies :-

(1) no member shall be eligible to continue to be a memberof a co-operative society if he, (a) is not using the servicesof the society for two consecutive years or using theservices below the minimum level as may be prescribed inthe rules or the bye-laws; (b) has not attended three consecutive general meetingsof the society and such absence has not been condonedby the members in the general meeting.”

Thus only members who have not attended at least any one ofthe three consecutive general body meetings of the societyare alone ineligible to continue as a member of the Co-operative Bank. The exclusion of 583 members from thepreliminary voters list in the final voters list on the basis ofthe misinterpretation of the statutory provision is prima facieillegal.

3. An Annual General Body Meeting has obviously to beconvened for the purpose of election in the prescribed manner

as per Section 29(1)(b) of the Kerala Co-operative SocietiesAct. But the quorum for a General Meeting in order to transactbusiness therein is 50 as per Clause 22 of the bye-laws of theCo-operative Bank in question. No election can be conductedeven if all the 28 members are present in the General Meetingwhen the number falls short of 50 as the quorum specified inthe bye-laws. The General Meeting convened to conduct anelection in compliance with the judgment in W.A. No. 1869/2016 would be reduced into a mockery in the circumstances.This is one way of entrusting the management of aCo-operative Bank to an Administrator under the KeralaCo-operative Societies Act in the guise of an election. We arealso of the prima facie opinion that the Government Orderdated 15/10/2016 granting exemption under Section 101 ofthe Act does not apply to this Co-operative Bank.

4. We are not for a moment holding that all these 611 membersfound in the preliminary voters list are eligible to vote as thesame is open to question in an election dispute, whether aregister in Form 32 on the basis of which the list of 611members has been prepared has to be gone into under Section69 of the Kerala Co-operative Societies Act. Similarly theinfraction if any of Section 16A and 19A of the Kerala Co-operative Societies Act are also matters to be adjudicated asand when a statutory dispute is raised. The cut-off date forimplementation of the amended provision of Rule 18A of theKerala Co-operative Societies Rules has been clarified to be26/11/2016 in SLP No. 27046/2016. The judgment in PradeepU.R. and Another v. Kerala State Co-operative ElectionCommission and Others 2016 (4) KHC 93 (FB) standsmodified as above. The implementation of the amendedprovisions of the Kerala Co-operative Societies Act and theRules does not therefore depend on the birth of a‘Co-operative year’.

Interest of justice would be met by directing the election to goon as scheduled permitting all the 611 members aforesaid tocast their vote in the election to the managing committee. Thesame would however be provisional and subject to these writpetitions and also the invocation of Section 69 of the KeralaCo-operative Societies Act.”

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A5. The above order was challenged before this Court. The appealswere disposed of by a common Judgment dated 05.12.2016. TheJudgment took note of the fact that the writ petitions were pending beforethe High Court and it was only appropriate that the writ petitions bedisposed of on merits. It was specifically made clear that “all contentionsraised by the writ petitioners are left open before the High Court.”BIt was also noted in the Judgment that elections have been conducted on05.11.2016 and 13 members have been elected to the ManagingCommittee and, therefore, this Court permitted the said Committee tocontinue in office subject to final orders passed in the writ petitions. Itwas also made clear that the Committee shall not take any policy decisions.CParagraphs 5 and 6 of the Judgment dated 05.12.2016 read as follows :-

“5. Though several contentions are taken by the parties, wedo not propose to go into the merits of the matter since thewrit petitions are pending before the High Court. Since, bythe time this Court passed the order dated 11.11.2016, aDManaging Committee had already been elected on 5.11.2016,we dispose of these appeals permitting the Committee electedon 5.11.2016 to manage the affairs of the Society for the timebeing, on a provisional basis with the rider that the saidCommittee shall only perform the day-to-day work of the Co-operative Society and shall not take any policy decision, tillEthe writ petitions are disposed of.

6. All contentions raised by the writ petitioners are left openbefore the High Court.”

6. The writ petitions were heard by the High Court leading to theFimpugned Judgment dated 02.03.2017. The Division Bench was of theview that the disputes raised in the writ petitions were fit to be tried asan election dispute under Section 69 of the Act and hence, declined toconsider the contentions on merits. The operative portion of the impugnedJudgment reads as follows :- G“11. We therefore relegate the petitioners to the alternatestatutory remedy available under Section 69(3) of the Actwherein all the factual and legal issues could be gone into. Itis pointed out that a dispute arising in connection with theelection should be raised within one month from the date ofelection as per the Act. But we notice that the election to the H

Managing Committee of the bank was held subject to the resultof the writ petitions only by virtue of the interim order.Therefore it is clarified that any dispute raised in connectionwith the election to the Managing Committee of the bank withinone month from today shall be dealt with as per law. Whatexactly should be the arrangement in the meanwhile is thefurther question since more than three months have elapsedsince the conduct of election. The Supreme Court haspermitted the Managing Committee to perform the day-to-daywork on provisional basis without taking any policy decision.We make it clear that the status quo as ordered by the SupremeCourt in its judgment dated 05.12.2016 shall hold the fieldtill the culmination of the dispute.”

Contextually, it is also significant to note that even in the interimorder dated 01.11.2016, the Court had taken the view that certain disputesregarding the eligibility, infractions, if any, of Sections 16A and 19A ofthe Act etc. are all subject matter of the Statutory dispute under Section69 of the Act.

7. It may be noted that the election had already been conductedon 05.11.2016. Under Section 69(3) of the Act, “No dispute arising inconnection with the election of the Board of Management or anofficer of the society shall be entertained by the CooperativeArbitration Court unless it is referred to it within one month fromthe date of the election.”

8. The Division Bench, however, was of the view that since thewrit petitioners had approached the High Court prior to the election andsince by way of an interim order, the election was permitted to beconducted as scheduled making it subject to the result of the writ petitionsand also Section 69 of the Act, it is only appropriate that while relegatingthe parties to the Arbitration Court trying the election dispute, a furtherperiod of thirty days be granted.

9. Whether, in view of the statutory period prescribed under Section69(3), the High Court could have extended the period, is the question.

10. Article 243ZK of the Constitution of India, which provides forElection of Members to the Managing Committee of a CooperativeSociety, reads as follows :- ABC

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A“(1) Notwithstanding anything contained in any law made bythe Legislature of a State, the election of a board shall beconducted before the expiry of the term of the board so as toensure that the newly elected members of the board assumeoffice immediately on the expiry of the office of members ofthe outgoing board.B

(2) The superintendence, direction and control of thepreparation of electoral rolls for, and the conduct of, allelections to a co-operative society shall vest in such anauthority or body, as may be provided by the Legislature of aState, by law:

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Provided that the Legislature of a State may, by law, providefor the procedure and guidelines for the conduct of suchelections.”

11. Section 69 of the Act is the mechanism provided by the StateDLegislature as contemplated under Article 243 ZK (2) of the Constitutionof India. Once the mechanism provided under the Statute provides fora time schedule for preferring an election petition, in the absence of aprovision in the Statute for enlarging the time under any givencircumstances, no court, whether the High Court under Article 226 orthis Court under Article 32, 136 or 142 of the Constitution can extend theEperiod in election matters. In the matter of limitation in election cases,the Court has to adopt strict interpretation of the provisions. This Courtin Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin & Ors.reported in (2015) 12 SCC 169, though in a different context, has held atparagraph 33 that “In the absence of any provision made in the ActFfor condoning the delay in filing the election petition, the ChiefJudge had no power to condone the delay in filing the electionpetition beyond the period of limitation prescribed in law”.

12. In Union of India & Anr. vs. Kirloskar Pneumatic Co. Ltd.reported in (1996) 4 SCC 453, at paragraph 10, this Court has held asunder :-G

“.......The power conferred by Articles 226/227 is designedto effectuate the law, to enforce the rule of law and to ensurethat the several authorities and organs of the State act inaccordance with law. It cannot be invoked for directing the H

authorities to act contrary to law. In particular, the Customsauthorities, who are the creature of the Customs Act, cannotbe directed to ignore or act contrary to Section 27, whetherbefore or after amendment. Maybe the High Court or a civilcourt is not bound by the said provisions but the authoritiesunder the Act are. Nor can there be any question of the HighCourt clothing the authorities with its power under Article226 or the power of a civil court. No such delegation orconferment can ever be conceived.”

13. It has also to be noted that while passing the interim orderdated 01.11.2016, the High Court had specifically noted that the samewas subject to the writ petitions and also Section 69 of the Act.

14. In the above circumstances, we are of the view that the mattersneed to be considered afresh by the High Court since the Court couldnot have relegated the parties to the alternative remedy under the Statuteby enlarging the time for preferring the election dispute. Accordingly,the impugned Judgment to that extent is set aside. The writ petitions areremitted to the High Court for fresh consideration. It will be open to theparties to raise all available contentions before the High Court. Werequest the High Court to dispose of the writ petitions expeditiously.

15. We make it clear that till the writ petitions are disposed of bythe High Court, the interim arrangement made by this Court in theJudgment dated 05.12.2016 will continue.

These appeals are disposed of as above.

SLP (C) Nos. 16136-16140 of 2017, 25720 of 2017, 30308-30312

of 2017 and 9858 of 2018

In view of the Judgment passed above, these Special LeavePetitions are also disposed of.

Ankit Gyan

Matters disposed of.

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