T K GOVINDAN Vs. K SUDHAKARAN

JUDGEMENT

(1.) W. A. No. 2700/2007: the appellant is the 3rd respondent in the writ petition. The writ, petition was filed under Article 226 of the Constitution of India, challenging the validity of the election held on 23-9-2007 to the Managing Committee of the 5th respondent co-operative Society. The appellant is one of the returned candidates. This Court admitted the writ petition and ordered notice on the respondents. This Court also passed an interim order restraining the newly elected Managing Committee from enrolling new members and also from making appointment of any employees. The appellant filed a counter-affidavit, raising a preliminary objection that the writ petition is not maintainable under Article 226 of the Constitution of India. He submitted that the Co-operative Societies Act is a self-contained code. It provides for an effective alternative machinery for resolution of election disputes. Further, it was also contended that as the disputes raised in this writ petition mainly fall within the realm of disputed questions of fact, the writ petition should be dismissed and the writ petitioners should be turned away to invoke the statutory remedy available to them. The appellant also prayed for vacating the interim order. But, the learned Single judge overruled the objections raised on behalf of the appellant regarding the maintainability of the writ petition. The interim order was modified and it was ordered that if there is any urgent necessity for making appointment of employees in the society, the respondents in the writ petition can move for permission of the Court to effect appointments. Feeling aggrieved by the said order dated 19-10-2007, this writ appeal is filed.

(2.) SRI T. P. Kelu Nambiar, learned senior counsel appearing for the appellant submitted that the impugned order is an order, adversely affecting the interest of the appellant and therefore, it is appealable under Section 5 (i) of the kerala High Court Act. Reference was made to the principles laid down by this court in K, S. Das v. State of Kerala, 1992 (2) K. L. T. 358 (F. B. ). The relevant portion of the said Judgment, relied on by the learned senior counsel reads as follows:

(3.) THE learned senior counsel Mr. Kelu Nambiar took us through the findings in the impugned order regarding the merits of the case. Though, the word "prima facie" is used when stating those findings, it is submitted that they will prejudice the appellant at the time of final hearing. The appellant is being harassed by compelling him to face the trial of a writ petition, which is, ex facie, not maintainable, it is contended. He pointed out that the writ petitioners have a right to move the Co-operative Arbitration Court, challenging the election and if they are dissatisfied with the decision of the said Court, they have a right of appeal to the kerala Co-operative Tribunal, which is manned by a District Judge. In view of the alternative and efficacious remedy available to them, the writ petition should not have been entertained, it is submitted. Therefore, the learned senior counsel prayed for allowing the appeal.