K V MATHAI Vs. STATE COOPERATIVE ELECTION COMMISSION

JUDGEMENT

(1.) In this writ petition a member of a society is challenging the notification issued for election to the Board of Directors of the Society on the ground that although the bye-laws of the Society specifically stipulates that election shall be on ward basis, without delimitation of the wards for which election is to be conducted by the general body which alone had the jurisdiction to do so, the present Director Board has adopted a resolution to conduct the election and to request the State Cooperative Election Board to appoint a returning officer which delimitation on the basis of which the election notification has been issued. The facts necessary for disposal of the writ petition which are not at all in dispute, may be summarised as under.

(2.) The period of office of the present Director Board of the 4th respondent Society which is a Federal Society, expires on 1-4-2007. On 27-1-2007, the present Board of Directors adopted a resolution to conduct the election to the next Director Board on 31-3-2007 and to request the State Co-operative Ejection Commission to appoint a returning officer for conducting the election. On 24-2-2007 the petitioner filed Ext. P2 representation before the Election Commission pointing out that as per Clause 31(b) of the Bye-laws of the Society, elections to the Board of Directors can be only on ward basis and since the general body of the Society which was vested with the power of delimitation of wards, have not done it, no election could be conducted before the general body conducts such delimitation of wards. But by Ext. P3 resolution dated 1-3-2007, the Director Board itself decided to have 7 wards, delimitation of which was also done by the said resolution. In accordance with such delimitation of wards, Ext. P4 election notification has been published which is challenged by the petitioner as arbitrary and illegal.

(3.) The 4th respondent Society has filed a counter affidavit justifying the action of the Director Board and Ext. P4. According to them, despite bye-law 31 (b), hitherto the elections to the Director Board have been conducted without delimitation of the area of operation of the Society into wards, including the last election. In keeping with the practice Ext. R4(a) resolution for conducting election and for requesting the Election Commission to appoint a returning officer was forwarded to the Election Commission by Ext. R4(b). However, on the basis of Ext. P2 complaint of the petitioner, by Ext. R4(c) dated 27-2-2007, the Election Commission directed the Society to fix the wards and to inform the office of the Election Commission. Accordingly, on 1-3-2007 the Director Board fixed the wards by Ext. R4(d) resolution and intimated the Election Commission regarding such fixation, on the basis of which the Election Commission has issued the election notification which has been published as per Ext. PI. They assert that the Director Board has the power to fix the wards for election. They also contend that since the election process has already commenced the only remedy available to the petitioner is to file an election petition after the election is over and he cannot validly maintain a writ petition under Article 226 of the Constitution of India challenging the election process. They also point out that during the last election also the petitioner had filed an election petition in which the contention of want of delimitation of wards was taken which was rejected by the Arbitrator and the revision before the Tribunal was also dismissed.