ANIL AKKARA Vs. STATE CO-OPERATIVE ELECTION COMMISSION

JUDGEMENT

(1.) The petitioner is a member of the 5th respondent bank - a society registered under the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as 'the Act'). He is also a former member of the Kerala Legislative Assembly. Elections to the Managing Committee of the 5th respondent have been notified to be held on 16/4/2023. The petitioner has approached this Court praying inter-alia for a writ of certiorari to quash Ext.P.1 election notification, for directions to prepare a proper voters list and for a declaration that members with any identity card issued by the 5th respondent, together with any other identity card as provided in the explanation to Rule 35A(6)(x) of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as 'the Rules') must be allowed to cast their votes.

(2.) Sri. George Poonthottam learned Senior Counsel appearing for the petitioner on the instructions of Adv.Nisha George would contend that the 5th respondent is a society which provides through its by-laws that it shall have a 'representative general body' as contemplated by Sec. 27(2) of the Act. He refers to the provisions of Ss. 27 and 28 of the Act and to Rules 34, 34A and 35A of the Rules to contend that the holding of elections to the Managing Committee and the Representative General Body must be simultaneous. It is submitted that holding elections to the Managing Committee alone is, therefore, not in accordance with the Act and the Rules. It is submitted the provisions admit of no ambiguity, and elections must be simultaneously held to the Managing Committee and the Representative General Body. It is submitted that where a certain thing has to be done in a particular manner, it has to be done in that manner or not at all. The oft-quoted principle flowing from the ratio in Nazir Ahamed v. King Emperor, AIR 1936 PC 253 is relied on to buttress this contention. Mr. Poonthottam refers to the notification issued in respect of another society and submits that in respect of that society, election to the Managing Committee and the representative general body is proposed simultaneously. He points out with reference to Ext P.5 reply of the Hon'ble Minister for Co-operation on the floor of the Assembly that after the removal of 4464 members (which is under challenge and is now pending before the Supreme Court) the voters list now prepared cannot have 20360 Members. It is submitted that several ineligible persons, including nearly 846 dead persons, have been included in the voter's list, and almost 1000 members have been illegally enrolled by the Administrator who has been in charge of the affairs of the 5th respondent since 12/4/2017. The judgment of Chandrasekhara Menon.J. in Devassy v. Asst. Registrar of Co- operative Societies; 1976 KLT 40 is relied on to contend that a proper voters list is sine qua non for a proper election, and where such a list is not prepared, relief can be granted under Article 226 of the Constitution of India. It is submitted that the stipulation in Ext.P.1 notification that only members with Form 6A identity cards issued after 1/1/2021 will be allowed to vote is illegal as the identity cards issued earlier have not been cancelled. Reference is made to Ext.P7 reply given by the then Hon'ble Minister for Co-operation to a question raised by the petitioner in the 22nd Legislative Assembly, stating that previously issued identity cards have not been cancelled. It is submitted that despite request, a copy of the preliminary voter's list has not been made available to the petitioner. It is submitted that such refusal takes away the right of the petitioner to make an effective objection to the preliminary voter's list.

(3.) Sri.P.P Tajuddin, Learned Special Government Pleader for the Co-operative Department, Sri. C.M Nazar, the learned counsel appearing for the State Co-operative Election Commission and Sri.P.C Sasidharan, the Learned Counsel appearing for the 5th Respondent, are unanimous in contending that there is absolutely no merit in the contentions taken on behalf of the petitioner. Sri.P.C Sasidharan would submit that the writ petition is not maintainable. He states that the petitioner will have to opt for remedies under the statute after the election is completed. He relies on the judgments in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra, (2001) 8 SCC 509; Shaji K Joseph v. V.Viswanath and ors., (2016) 4 SCC 429; Ajitha Kumari and ors v. Priyadarsini Vanitha Coir Vyavasaya Co-operative Society Ltd., 2018 KHC 528 and on Denny V.P v. Joint Registrar of Co-operative Societies, 2019 KHC 4954 in support of his contention that the Writ Petition is not maintainable and that any complaint regarding voters list etc. has to be taken up in accordance with the provisions of the statute after the elections are completed. He relies on the judgment in VSSC Employees Co- operative Society v. Registrar and ors, 1993 KHC 234 to contend that without an identity card as mandated by the Rules, no person can exercise the right of franchise. He also relied on Bhaskaran Pillai K v. Nediyavila Milk Producers co-operative Society and anr., 2008 (4) KHC 438 to contend that no member can insist that a draft of the voter's list must be shared with him and that the mandate of the Rules is only to publish the same by affixture on the Notice Board. It is contended that the provisions of the Act, which set out the procedure for conducting elections to the representative general body and the Managing Committee, are clearly independent provisions and elections to the Managing Committee of a society, [the by-laws of which provide for the constitution of a representative general body] are clearly not dependant on the conduct of election to the representative general body and vice-versa. It is submitted that the elections conducted to the Managing Committee of the 5th respondent society in 2014 also did not provide for the simultaneous conduct of the election to the representative general body. It is submitted that where the provisions do not spell out a consequence of non-compliance of the provisions which contemplate a simultaneous election to the representative general body, the provisions can only be considered directory and not mandatory. Reference is made in this regard to the judgment of a learned single judge of this Court in W.P (C) 31124 of 2022. The Learned Special Government Pleader for the Co-operative Department and the Learned Standing Counsel for the Election Commission have endorsed and reiterated the contentions of Sri. P.C Sasidharan.