Research › Search › Judgment

Kerala High Court · body

2018 DIGILAW 543 (KER)

Ajitha Kumari v. Priyadarsini Vanitha Coir Vyavasaya Co-Operative Society (CVCS) Ltd.

2018-07-10

ANIL K.NARENDRAN

body2018
JUDGMENT : The petitioners, who are stated to be members of Priyadarsini Vanitha Coir Vyavasaya Co-operative Society Ltd. No.A-935, Varanam, Cherthala, the 1st respondent Society, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3rd respondent Electoral Officer to include their names in Ext.P5 final voters list, so as to enable them to exercise their vote and contest in the election to the Managing Committee of that Society, which is scheduled to be held on 26.07.2018, in terms of Ext.P3 election notification dated 31.05.2018 issued by the State Co-operative Election Commission, Kerala, as members of that Society. The petitioners have also sought for an order directing respondents 1 to 3 to ensure that identity cards are issued to the petitioners and other members, who filed applications, in order to exercise their vote in the election. 2. A statement has been filed on behalf of the 3rd respondent Electoral Officer opposing the reliefs sought for in this writ petition. A copy of the objection dated 29.06.2018 submitted by one Leena Razzak to the preliminary voters list published by the Electoral Officer, for excluding the name of the petitioners and two others from the final voters list to be published in terms of sub-rule (4) of Rule 35A of the Kerala Co-operative Societies Rules, 1969 (for brevity, 'the Rules') is placed on record as Annexure R3(a). 3. The petitioners have filed a reply affidavit dated 07.07.2018 reiterating that they are permanently residing within the area of operation of the 1st respondent Society. In support of the said contention, copies of Aadhar card/land tax receipt/ration card/voters list in respect of some of the petitioners (i.e., petitioners 1, 9, 10, 12 and 14) are placed on record as Exts.P6 to P21. 4. Heard the learned counsel for the petitioners and also the learned Senior Government Pleader appearing for respondents 2 to 4. Despite service of notice, none appears for the 1st respondent Society. 5. By Ext.P1 order dated 03.03.2017 of the 2nd respondent Director of Coir Development (wrongly described as 'Director of Coir' in the cause title of the writ petition) the elected committee of the 1st respondent Society was superseded and the Coir Inspector, Cherthala was appointed as the Administrator of the Society, under Section 32 of the Kerala Co-operative Societies Act, 1969 (for brevity, 'the Act'). Ext.P1 order was issued based on an order dated 19.04.2016 of the Project Officer (Coir), Alappuzha. That order of the Project Officer (Coir) was set aside by the judgment of this Court dated 30.11.2016 in W.P. (C)No.16407 of 2016, holding that the said Officer cannot straightaway order realisation of the amount allegedly misappropriated by the Managing Committee, without following the procedure prescribed under the Act. However, this Court made it clear that the judgment dated 30.11.2016 will not preclude the Project Officer (Coir) from taking steps for realisation of the loss, if any, caused by the members of the Managing Committee in accordance with the provisions of the Act. Since Ext.P1 order of supersession dated 03.03.2017 was based on the order dated 19.04.2016 of the Project Officer (Coir), Alappuzha, which has already been set aside by the judgment dated 30.11.2016 in W.P.(C)No.16407 of 2016, this Court by Ext.P2 judgment dated 05.04.2018 in W.P.(C)No.20458 of 2017, set aside that order of supersession and directed the Coir Inspector, Cherthala, who is the Administrator in charge of the 1st respondent Society, to take immediate steps for the conduct of election, within a period of three months from the date of receipt of a copy of that judgment. 6. Pursuant to Ext.P2 judgment of this Court dated 05.04.2018 in W.P.(C)No.20458 of 2017, the State Co-operative Election Commission, Kerala issued Ext.P3 election notification dated 31.05.2018 for conducting election to the Managing Committee of the 1st respondent Society. By filing this writ petition under Article 226 of the Constitution of India, the petitioners seek interference in the process of election conducted pursuant to Ext.P3 election notification issued by the State Cooperative Election Commission. However, the State Co-operative Election Commission is not made a party to this writ petition. 7. Ext.P3 election notification is one issued by the State Cooperative Election Commission, in exercise of its powers under sub-rule (3) of Rule 35A of the Rules. In terms of the said notification, the 3rd respondent Coir Inspector, Alappuzha (South), who is the Electoral Officer appointed by the Election Commission, in exercise of its powers under sub-rule (2) of Rule 35A of the Rules, published a preliminary voters list consisting of 141 members of the 1st respondent Society. In terms of the said notification, the 3rd respondent Coir Inspector, Alappuzha (South), who is the Electoral Officer appointed by the Election Commission, in exercise of its powers under sub-rule (2) of Rule 35A of the Rules, published a preliminary voters list consisting of 141 members of the 1st respondent Society. As per that notification, objections, if any, to the preliminary voters list published at 11.00 am on 23.06.2018 have to be made before the Electoral Officer from 11.00 am on 23.06.2018 till 5.00 pm on 30.06.2018. The Electoral Officer shall consider the objections, if any, made to the preliminary voters list on 02.07.2018, from 11.00 am to 1.00 pm, and the final voters list shall be published on 05.07.2018 at 11.00 am. 8. Going by the averments in the writ petition, there were no objections raised by any members of the 1st respondent Society to Ext.P4 preliminary voters list, in which the name of the petitioners is included. However, the 3rd respondent Electoral Officer published Ext.P5 final voters list, deliberately excluding the name of the petitioners. Though the petitioners have approached the 3rd respondent with a request to include their name in the final voters list and also to issue identity cards, the said respondent expressed his inability do anything, on account of political pressures. 9. As borne out from the statement filed on behalf of 3rd respondent Electoral Officer, after the publication of the preliminary voters list, one Leena Razzak, a member of the 1st respondent Society, submitted Annexure R3(a) objections dated 29.06.2018 for excluding the name of the petitioners and two others from the final voters list to be published under sub-rule (4) of Rule 35A of the Rules, pointing out that they are not permanent residents within the area of operation of the 1st respondent Society, as provided in its bye-laws. On scrutiny of that objections and the supporting documents, the 3rd respondent found that the petitioners and two others are not permanent residents within the area of operation of the 1st respondent Society and as such, they are not entitled to be included in the final voters list. Accordingly, the 3rd respondent published Ext.P5 final voters list, excluding the name of the petitioners and two others from that list. 10. Accordingly, the 3rd respondent published Ext.P5 final voters list, excluding the name of the petitioners and two others from that list. 10. As borne out from Annexure R3(a) objections made by Leena Razzak, the information obtained from Thanneermukkom Grama Panchayat, under the provisions of the Right to Information Act, 2005 that the name of the petitioners and two others is not included in the voters list for that Grama Panchayat, was enclosed along with the said objections. In the statement filed on behalf of the 3rd respondent it has been stated that, the petitioners never approached the said respondent to explain their position. In the said statement, the 3rd respondent has also pointed out that the document produced as Ext.P4 is not the preliminary voters list published by the said respondent, though the number of members included in the preliminary voters list is 141, as shown in Ext.P4. 11. In the reply affidavit dated 07.07.2018, the petitioners have stated that, the document marked as Ext.P4 is a photocopy of the preliminary voters list obtained from the Secretary of the 1st respondent Society. The petitioners would contend that Annexure R3(a) is an objection subsequently created. Along with the reply affidavit, the petitioners have produced copies of Aadhar card/land tax receipt/ration card/voters list in respect of some of the petitioners (i.e., petitioners 1, 9, 10, 12 and 14) as Exts.P6 to P21. As per the reply affidavit, others are also having documents and the petitioners are prepared to produce such documents before the authorities. 12. In paragraph 5 of the statement filed on behalf of the 3rd respondent Electoral Officer it has been stated that, after the publication of the final voters list, the 1st petitioner Smt. Ajitha Kumari and her brother Sri. Shaji forcefully entered the office and took away the final voters list published in the notice board of the Society. Regarding the said incident, the Secretary of the Society has already filed a petition before the Sub Inspector of Police, Muhamma. Though the 1st petitioner has sworn to a reply affidavit dated 07.07.2018, the aforesaid averments made in paragraph 5 of the statement filed on behalf of the 3rd respondent stand uncontroverted. 13. Regarding the said incident, the Secretary of the Society has already filed a petition before the Sub Inspector of Police, Muhamma. Though the 1st petitioner has sworn to a reply affidavit dated 07.07.2018, the aforesaid averments made in paragraph 5 of the statement filed on behalf of the 3rd respondent stand uncontroverted. 13. If the petitioners are having any dispute in connection with the election to the Managing Committee of the 1st respondent Society, which is scheduled to be held on 26.07.2018, in terms of Ext.P3 election notification dated 31.05.2018 issued by the State Co-operative Election Commission, such dispute can be raised before the Co-operative Arbitration Court constituted under Section 70A of the Act, by invoking the statutory remedy available under Section 69 of that Act, within one month from the date of election. Clause (c) of sub-section (2) of Section 69 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 subsection (1) of Section 69 of the Act. Going by the Explanation to clause (c) of sub-section (2) of Section 69, 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. Rule 35A of the Rules deals with the procedure regarding conduct of election to the committee of Societies by the State Co-operative Election Commission. Ext.P5 final voters list is one published by the 3rd respondent Electoral Officer in exercise of his powers under sub-rule (4) of Rule 35A of the Rules. If that be so, any dispute in relation to Ext.P5 final voters list published by the Electoral Officer, in exercise of his powers under sub-rule (4) of Rule 35A 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 70A of the Act, by invoking the statutory remedy available under Section 69 of that Act, within one month from the date of election. 14. 14. In Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha, and another v. State of Maharashtra [ (2001) 8 SCC 509 ], in the context of Maharashtra Co-operative Societies Act, 1960 and Maharashtra Specified Co-operative Societies Elections to Committees Rules, 1971, 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. If there was a breach of rule or certain mandatory provisions of the rules were not complied with while preparing of the electoral roll, the same could be challenged under Rule 81(d)(iv) of the Rules by means of an election petition. The preparation of electoral roll is part of the election process and if there is any breach of the rules in preparing the electoral roll, the same can be called in question after the declaration of the result of the election by means of an election petition before the tribunal. 15. In Shaji K. Joseph v. V. Viswanath [ (2016) 4 SCC 429 ], in the context of the Dental Council (Election) Regulations, 1952 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. 16. Therefore, all disputes with regard to election should be dealt with only after completion of the election. 16. In Jayavarma K. v. State Co-operative Election Commission and others [ 2017 (2) KHC 190 ] a Division Bench of this Court held that, a writ petition can be entertained on well settled parameters in order to correct or smoothen the progress of the election. The instance of rejection of the nomination on totally untenable grounds is an example which could be rectified without upsetting the election calendar. The Division Bench held further that, a writ court should act with circumspection as the inevitable consequence of not holding an election in time is the advent of an Administrator. The appointment of an Administrator, in lieu of an elected Managing Committee, should be the last resort in a democratic process. The salutary principles laid down by the Apex Court in Election Commission of India v. Ashok Kumar [ (2000) 8 SCC 216 ] should apply fortiori when an alternate remedy well exists under the Kerala Co-operative Societies Act, 1969 to question the process of election to a Society registered. 17. Part IXB of the Constitution of India, inserted by the Constitution (97th Amendment) Act, 2011 deals with Co-operative Societies. Article 243ZK inserted by the said Amendment Act deals with election of members of board of Co-operative Societies. As per clause (2) of Article 243ZK, the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a cooperative 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 clause (2) of Article 243ZK, the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections. 18. In Reji Thomas v. State of Kerala [ 2018 (2) KHC 842 ] a Three-Judge Bench of the Apex Court held that, Section 69 of the Kerala Co-operative Societies Act, 1969 is the mechanism provided by the State Legislature as contemplated under clause (2) of Article 243ZK of the Constitution of India. 18. In Reji Thomas v. State of Kerala [ 2018 (2) KHC 842 ] a Three-Judge Bench of the Apex Court held that, Section 69 of the Kerala Co-operative Societies Act, 1969 is the mechanism provided by the State Legislature as contemplated under clause (2) of Article 243ZK of the Constitution of India. After referring to the provisions under sub-section (3) of Section 69 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 Cooperative 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 Article 226 or the Apex Court under Article 32, Article 136 or Article 142 of the Constitution can extend the period in election matters. 19. In the instant case, as per the statement filed on behalf of 3rd respondent Electoral Officer, after the publication of the preliminary voters list, one Leena Razzak, a member of the 1st respondent Society, submitted Annexure R3(a) objections for excluding the name of the petitioners and two others from the final voters list to be published in terms of sub-rule (4) of Rule 35A of the Rules, pointing out that they are not permanent residents within the area of operation of the 1st respondent Society, as provided in the bye-laws of that Society. On scrutiny of that objections and the supporting documents, the 3rd respondent found that the petitioners and two others, who are not permanent residents within the area of operation of the 1st respondent Society, are not entitled to be included in the final voters list. Accordingly, while publishing Ext.P5 final voters list, the 3rd respondent excluded the name of the petitioners and two others. Despite the statement made on behalf of the 3rd respondent that, the exclusion of the name of the petitioners and two others while publishing Ext.P5 final voters list was based on Annexure R3(a) objections made by one Leena Razzak, she is not made a party to this writ petition. 20. Despite the statement made on behalf of the 3rd respondent that, the exclusion of the name of the petitioners and two others while publishing Ext.P5 final voters list was based on Annexure R3(a) objections made by one Leena Razzak, she is not made a party to this writ petition. 20. Ext.P5 final voters list, to the extent of excluding the name of the petitioners from that list, is not under challenge in this writ petition by seeking an appropriate relief. Instead, the petitioners have sought for a writ of mandamus commanding the 3rd respondent Electoral Officer to include their names in Ext.P5 final voters list, so as to enable them to exercise their vote and contest in the election. In the absence of any challenge against Ext.P5 final voters list, to the extent of excluding the name of the petitioners from that list, they cannot seek a writ of mandamus commanding the 3rd respondent to include their names in that final voters list, so as to enable them to exercise their vote and contest in the election, or for the issuance of identity cards by the competent authority. 21. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, if the petitioners have any dispute in relation to Ext.P5 final voters list published by the 3rd respondent Electoral Officer, they will have to raise such dispute before the Co-operative Arbitration Court, by invoking the statutory remedy available under Section 69 of the Act, within one month from the date of election, and as such, they cannot approach this Court seeking interference under Article 226 of the Constitution of India. Therefore, this writ petition is liable to be dismissed, without prejudice to the right of the petitioners to raise any dispute arising in connection with the election before the Co-operative Arbitration Court, by invoking the statutory remedy available under Section 69 of the Act, within one month from the date of election. 22. Before parting with this case, it has to be noted that in the cause title of the writ petition the 2nd respondent Director of Coir Development, Directorate of Coir Development, Coir Bhavan, Nandavanam, Palayam, Thiruvananthapuram-695 033 is wrongly described as Director of Coir, Office of the Director of Coir, Thiruvananthapuram-695 001. 22. Before parting with this case, it has to be noted that in the cause title of the writ petition the 2nd respondent Director of Coir Development, Directorate of Coir Development, Coir Bhavan, Nandavanam, Palayam, Thiruvananthapuram-695 033 is wrongly described as Director of Coir, Office of the Director of Coir, Thiruvananthapuram-695 001. The pin code 695 001' mentioned in the cause title of this writ petition is that of Thiruvananthapuram Head Post Office. As borne out from Ext.P4, the office of the 1st respondent Society is at Varanam P.O., Puthanangadi, which is in Cherthala Taluk and the pin code of Varanam Post Office is 688 555. The 1st respondent Society is presently administered by the Part-time Administrator, namely, the Coir Inspector, Cherthala Circle, Cherthala-688 524. The pin code 688 001' mentioned in the cause title of this writ petition is that of Alappuzha Head Post Office. The official address of the Coir Inspector, Cherthala, who is the Part-time Administrator of the 1st respondent Society; the Coir Inspector, Alappuzha South, who is the Electoral Officer; and the Junior Cooperative Inspector (H.Q.), who is the Returning Officer are also wrongly described in the cause title of the writ petition. 23. Rule 145 of the Rules of the High Court of Kerala, 1971 deals with form and presentation of an application under Article 226 or under Article 227 or under Article 228 of the Constitution of India and Rule 146 deals with contents of the application. As per Rule 146, every application shall set out the provision of law under which it is made, name and description of the petitioner and the respondent, a clear and concise statement of facts, the grounds on which the relief is sought and shall be signed by the petitioner and by his advocate, if he has appointed one, as in Form No.10. Going by Form No.10, the cause title of the writ petition should contain the description and also the address of the parties, intended for service of notice on them. 24. Chapter IV of the Rules of the High Court of Kerala, 1971 deals with service of notices. As per sub-rule (1) of Rule 51, unless otherwise ordered, every notice shall be sent, in the first instance, to the address of the respondent given in the memorandum of appeal or petition, as the case may be, by means of registered post, acknowledgment, prepaid. As per sub-rule (1) of Rule 51, unless otherwise ordered, every notice shall be sent, in the first instance, to the address of the respondent given in the memorandum of appeal or petition, as the case may be, by means of registered post, acknowledgment, prepaid. An acknowledgment purporting to be signed by the respondent shall be deemed to be sufficient proof of service of such notice. As per sub-rule (2) of Rule 51, where the postal article containing the notice is received back by the Court with an endorsement purported to have been made by a postal employee to the effect that the respondent or his agent had refused to take the delivery of postal article containing the notice when tendered to him, the Court shall declare that the notice had been duly served on the respondent. Going by the proviso to sub-rule (2) of Rule 51, where the notice was properly addressed, prepaid and duly sent by registered post, acknowledgment due, the declaration referred to in sub-rule (2) shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid or for any other reason, has not been received by the Court within thirty days from the date of issue of the notice. 25. In Sali Mohan v. Kolazhi Grama Panchayath, Thrissur and others [ 2015 (4) KHC 261 ] this Court held that a postal article with incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, cannot be termed as one 'properly addressed' in order to draw a presumption as to service of document by post, under Section 27 of the General Clauses Act, 1897 or Section 26 of the Interpretation and General Clauses Act, 1125, or under Section 16 or Section 114 of the Evidence Act, 1872. This Court held further that, for drawing a presumption under the proviso to sub-rule (2) of Rule 51 of the Rules of the High Court of Kerala, 1971 that the notice had been duly served on the respondent, one of the essential circumstances is that the notice was 'properly addressed'. Paragraphs 18 and 19 of the said judgment read thus; “18. Paragraphs 18 and 19 of the said judgment read thus; “18. As I have already noticed, Section 27 of the General Clauses Act, 1897 as well as Section 26 of the Interpretation and General Clauses Act, 1125 do not lay down an inflexible or conclusive presumption as to service of notice by registered post. It only states that, a presumption as to service of document by post can be drawn if the circumstances enumerated in Section 27 of the Central Act or Section 26 of the State Act are present, unless the contrary is proved. One of the essential circumstances for drawing such a presumption as to service of document by post is that, the registered postal article should be 'properly addressed'. A postal article with incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, cannot be termed as one 'properly addressed' in order to draw a presumption as to service of document by post, under Section 27 of the Central Act or Section 26 of the State Act, or under Section 16 or Section 114 of the Evidence Act. 19. Similarly, for drawing a presumption under the proviso to sub-rule (2) of Rule 51 of the Rules of the High Court of Kerala, that the notice had been duly served on the respondent, one of the essential circumstances is that the notice was 'properly addressed'. If the postal article containing the notice issued by this Court contain only an incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the respondent resides or carries on business or employed, it cannot be termed as a notice 'properly addressed' to the respondent, in order to draw a presumption under the proviso to sub-rule (2) of Rule 51, that the notice had been duly served on such respondent.” 26. In Sali Mohan's case (supra) it was noted that, this Court vide Notification No.A1-14065/2007 dated 09.10.2007 has instructed that, the actual postal address of the parties, with correct pin code, should be shown in all proceedings filed in this Court and that, no proceedings shall be received without such actual postal address. The said notification was issued, when this Court noted that, the address of the parties given in the memorandum of writ petition, appeal, etc., are not the actual address, as a result of which, the notice and other articles sent by post in such address are returned by the Postal Department stating that 'addressee not known'. 27. In Leela and others v. Vasu and others [ 2018 (1) KHC 876 ] this Court held that, drafting faulty, unscientific and perfunctory pleadings would be a wasteful exercise like building a castle on the seashore without laying a foundation. It may crumble under its own weight at any time. Such slipshod acts are great disservices not only to the litigant, but also to the justice administration system. Paragraph 49 of the said judgment reads thus; “49. Before parting with this case, I may painfully note that the lawyer at the first level unjustifiably failed to marshal the facts correctly and apply the correct legal principles while drafting the plaint. As in so many other cases, architect of the plaint miserably failed to remember the reality that the pleadings in a civil case is the cornerstone of a multi-layer litigation, which may perhaps end up in the highest Court of the land. Drafting faulty, unscientific and perfunctory pleadings would be a wasteful exercise like building a castle on the seashore without laying a foundation. It may crumble under its own weight at any time. Such slipshod acts are great disservices not only to the litigant, but also to the justice administration system.” 28. In the result, for the reasons stated hereinbefore, this writ petition is dismissed; however, without prejudice to the right of the petitioners to raise any dispute arising in connection with the election conducted pursuant to Ext.P3 election notification issued by the State Co-operative Election Commission to the Managing Committee of the 1st respondent Society, before the Co-operative Arbitration Court, by invoking the statutory remedy available under Section 69 of the Act, within one month from the date of that election. 29. 29. It is made clear that the observations, if any, made in this judgment touching the merits of the factual contentions raised by both sides are made for the purpose of disposal of this writ petition, and the Co-operative Arbitration Court shall proceed with any dispute raised by the petitioners, under Section 69 of the Act, in connection with the election to the Managing Committee of the 1st respondent Society, untrammelled by any such observations. No order as to costs.