IN THE HIGH COURT OF AT

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, P.O, , 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 W.A.No.38 of 2021 5

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 3rd 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 W.A.No.38 of 2021 6

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 W.A.No.38 of 2021 7

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 W.A.No.38 of 2021 8

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 W.A.No.38 of 2021 9

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 W.A.No.38 of 2021 10

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 W.A.No.38 of 2021 11

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