Dismissed

Thelliyoor Service Co-Operative Bank Ltd. No. a 361 v. the State Co-Operative Election Commission

Kerala HC12 Nov 2018WP(C)/34862/2018

Case brief

AI extract

What is this about?

Petitioner sought to quash an election notification but approached the court without authorization from the Managing Committee and with an unauthorized list. The court dismissed the withdrawal plea, citing abuse of process, and imposed exemplary costs.

What did the court decide?

Petition dismissed with exemplary costs of Rs. 25,000 payable to the Kerala State Legal Services Authority within one month.

Thelliyoor Service Co-Operative Bank Ltd. No. a 361 Vs… — Cooperative Societies | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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MONDAY ,THE 12TH DAY OF NOVEMBER 2018 / 21ST KARTHIKA, 1940

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WP(C).No. 34862 of 2018

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PETITIONER/S:

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THELLIYOOR SERVICE CO-OPERATIVE BANK LTD NO. A 361 REPRESENTED BY PRESIDENT, THELLIYOOR P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT

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BY ADVS. SRI.P.N.MOHANAN SMT.AMRUTHA SURESH

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RESPONDENT/S:

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1 THE STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ELECTION COMMISSIONER, 3RD FLOOR, COBANK TOWERS, PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM- 695 033

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2 THE ELECTORAL OFFICER TO THELLIYOOR SERVICE COOPERATIVE BANK,THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (G), MALAPPALLY, PATHANAMTHITTA - 685 585.

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3 THE RETURNING OFFICER TO THELLIYOOR SERVICE COOPERATIVE BANK,EZHUMATOOR UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (G), MALLAPPALLY, PATHANAMTHITTA - 685 585.

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4 N. JAYAN,MANAGING COMMITTEE MEMBER, THELLIYOOR SERVICE CO-OPERATIVE BANK LTD. NO.A 361, THELLIYOOR P.O., MALLAPPALLY, PATHANAMTHITTA DISTRICT, RESIDING AT PULIKKAL HOUSE, KOLABHAGOM POST, THADIYOOR, MALLAPPILLY, PATHANMTHITTA - 689 545.

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5 THE REGISTRAR OF CO-OPERATIVE SOCIETIES DEPARTMENT OF CO-OPERATION, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O., THIRUVANANTHAPURAM - 14.

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6 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) PATHANAMTHITTA - 689 645.

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WP(C).No. 34862 of 2018

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BY ADVS. SRI.T.P.PRADEEP SMT.NITHYA VIJAYAN SRI.P.K.SATHEES KUMAR SRI.S.SREEDEV SMT C.S.SHEEJA,SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 34862 of 2018

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JUDGMENT

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This writ petition is filed by the Thelliyoor

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Service Co-operative Bank Ltd., a Co-operative Society registered under the Kerala Co-operative

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Societies Act, 1969 and the rules made thereunder, represented by its President, seeking

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a writ of certiorari to quash Ext.P4 communication dated 23.10.2018 of the 2^nd respondent Electoral Officer, whereby the Secretary of the Society was informed that the preliminary voters list in terms of Ext.P1 election notification dated 15.10.2018 issued by the 1^st respondent State Co-operative Election Commission could not be published, since the Secretary of the Society, who is the Chief Executive Officer, failed to submit the voters list duly approved by the Managing Committee, within the time limit specified. The petitioner has also sought for other consequential reliefs,

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including a writ of mandamus commanding

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WP(C).No. 34862 of 2018

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respondents 1 and 2 to publish the preliminary

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voters list approved by the Managing Committee in its meeting held on 23.10.2018 and to proceed with Ext.P1 election notification dated

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15.10.2018 issued by the 1^st respondent State Cooperative Election Commission.

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On 25.10.2018, when this writ petition came up for admission, the learned Senior

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Government Pleader sought time to get instructions.

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came up for consideration the 4^th respondent, who

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is a member in the Managing Committee of the petitioner Society, entered appearance through

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counsel and sought time to file counter affidavit.

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The 2^nd respondent Electoral Officer has

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filed a counter affidavit dated 30.10.2018,

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wherein it has been stated that the preliminary voters list could not be published on 23.10.2018

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WP(C).No. 34862 of 2018

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at 11.00 a.m., within the time limit specified in Ext.P1 election notification, since the Managing Committee of the Society approved the voters list only by 11.30 a.m. Therefore, the 1^st respondent State Co-operative Election Commission cancelled Ext.P1 election notification, by issuing Ext.R2(c) notification dated 26.10.2018.

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Today, when the case is taken up for

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further consideration, a counter affidavit has

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been filed by the 4^th respondent, as 'Bench mark', wherein it has been stated that the Managing

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Committee of the Society has not taken any decision authorising the President to file this writ petition, representing the Society. In the said counter affidavit it has also been stated that the voters list handed over by the President of the Society to the 2^nd respondent Electoral

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Officer was not the one prepared by the Chief Executive Officer of the Society, as contemplated under sub-rule (4) of Rule 35A of the Kerala Co-

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WP(C).No. 34862 of 2018

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operative Societies Rules and that, the same was handed over to the 2^nd respondent after the time stipulated in Ext.P1 notification for publication of preliminary voters list.

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Heard the learned counsel for the

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petitioner, the learned Senior Government Pleader appearing for respondents 1 to 3, 5 and 6 and

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also the learned counsel for the 4^th respondent.

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The learned counsel for the petitioner

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seeks permission to withdraw this writ petition.

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On a specific query made by this Court as

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to whether the petitioner wants to file reply affidavit to the counter affidavit filed by the 4^th respondent, the learned counsel for the petitioner would submit that the petitioner does not want to file any reply affidavit. The learned counsel would also submit that, as per the byelaws of the petitioner Society, the Society

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has to be represented in legal proceedings, by its Secretary and not by its President.

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WP(C).No. 34862 of 2018

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In paragraph 2 of the writ petition it is

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averred that as the Secretary is not well on

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account of some locomotive problem, the President

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is authorised to represent the petitioner

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Society. During the course of arguments, the learned counsel for the petitioner could not

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point out any document, whereby the President of the Society is authorised by the Managing Committee to file this writ petition.

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In Usha Nanthini v. Regional Transport Authority, Palakkad and another [2018 (2) KHC 89]

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this Court held that, once it is found that the petitioner has approached this Court invoking the extraordinary jurisdiction under Article 226 of

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the Constitution of India by suppressing material

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facts and making false statements, such an

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attempt made by the petitioner to abuse the

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process of this Court has to be dealt with

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appropriately. In such cases this Court has ample

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power to decline the permission sought for

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WP(C).No. 34862 of 2018

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withdrawal of the writ petition. Dismissal of such writ petitions imposing exemplary costs is inevitable, in order to prevent abuse of process of this Court and to preserve purity of judicial proceedings. Paragraphs 26 to 28 of the said judgment read thus:

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“26. In Dnyandeo Sabaji Naik v. Pradnya Prakash Khadekar [(2017) 5 SCC 496] : [2017 SCC Online SC 211] a Three-Judge Bench of the Apex Court held that the Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.

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A litigant who invokes the extraordinary jurisdiction of this Court under Art.226 of the Constitution must come with clean hands and clean objects. Any attempt made by a litigant to mislead this Court, either by suppressing

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WP(C).No. 34862 of 2018

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materials facts or by filing false affidavits or giving false statements should be curbed with an iron hand. A litigant has every right to withdraw the writ petition filed under Art.226 of the Constitution. However, once it is found that he has approached this Court suppressing materials facts or by filing false affidavits or giving false statements, this Court has ample power to decline the permission sought for withdrawal of that writ petition. Dismissal of such writ petitions imposing exemplary costs is inevitable, and even necessary, in order to prevent abuse of the process of this Court and to preserve the purity of judicial proceedings.

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In the instant case, a reading of the reply affidavit filed by the petitioner dated 09/01/2018 would show that the said affidavit has been drafted in a casual manner harbouring the notion that this Court is required to grant permission for withdrawal of the writ petition as a matter of course. Once it is found that the petitioner has approached this Court suppressing materials facts and making false statements, such an attempt made by the petitioner to abuse the process of this Court has to be dealt with appropriately. In such circumstances, the dismissal of this writ petition imposing exemplary costs is inevitable, declining the permission sought for withdrawal of the same.”

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The law laid down in the decision of this

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WP(C).No. 34862 of 2018

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Court in Usha Nanthini's case (supra) stands affirmed by a Division Bench of this Court in the judgment dated 21.02.2018 in W.A.No.455 of 2018. Paragraph 4 of the said judgment reads thus:

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“4. After going through the impugned judgment and the material in the writ appeal, we find that the appellant faces a grave chargesuppressing the material facts and misleading the Court. In fact, Usha Nanthini herself, on the learned Single Judge's direction, filed an affidavit pleading that she may be pardoned “if any wrong information is made in the writ petition.” She pleaded with the Court to permit her to withdraw the writ petition. The learned Single Judge refused-rightly so.”

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It is well settled that, a litigant who

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invokes the extraordinary jurisdiction of this Court under Article 226 of the Constitution must

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come with clean hands and clean objects. The

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judicial proceedings are sacrosanct, and no person would be allowed to abuse the judicial process, particularly, in public law remedy. In writ proceedings, the Court places implicit faith

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on the parties and their pleadings, as it does

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WP(C).No. 34862 of 2018

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not indulge in any fact finding or roving enquiry

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of what has been asserted. Since Article 226 of

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the Constitution of India espouses equity jurisprudence, a litigant who has approached the Court with unclean hands, without disclosing full facts, is not entitled for any reliefs.

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As held by the Apex Court in Dnyandeo

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Sabaji Naik's case (supra) a litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture

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along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth.

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Once it is found that there is

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misrepresentation, the petitioner, who takes

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liberty to the truth, has to be dealt with

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WP(C).No. 34862 of 2018

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appropriately. In such circumstances, dismissal

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of this writ petition imposing cost is inevitable, thereby declining the permission sought for withdrawal of the same.

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In such circumstances, this writ petition

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is dismissed imposing a cost of Rs.25,000/- (Rupees Twenty Five Thousand only) on the petitioner, which shall be paid to the Kerala State Legal Services Authority, an authority constituted under the Legal Services Authorities Act, 1987 providing free legal service to the weaker sections of the society. Such payment shall be made within a period of one month from the date of receipt of a certified copy of this

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judgment. In case the petitioner fails to pay the cost of Rs.25,000/- (Rupees Twenty Five Thousand only) within the time limit specified as above,

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it would be open to the Kerala State Legal

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Services Authority to recover the said amount by initiating revenue recovery proceedings, in terms

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WP(C).No. 34862 of 2018

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of G.O.(Ms.)No.107/2011/RD dated 26.2.2011,

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whereby the provisions under the Revenue Recovery Act, 1968 were made applicable to the recovery of amounts due from any person or class of persons to the said Authority.

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The Registry shall issue a copy of this judgment to the Member Secretary, Kerala State Legal Services Authority, Kochi.

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Sd/-

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ANIL K.NARENDRAN,JUDGE

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WP(C).No. 34862 of 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF ELECTION NOTIFICATION DATED 15.10.2018 OF THE FIRST RESPONDENT.

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EXHIBIT P2 A TRUE COPY OF DESCENDING NOTE DATED 23.10.2018 OF THE FOURTH RESPONDENT. EXHIBIT P3 A TRUE COPY OF THE PROCEEDINGS DATED 23.10.2018. EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 23.10.2018 OF THE SECOND RESPONDENT.

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RESPONDENTS' EXHIBITS :

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EXHIBIT R2(A)	TRUE COPY OF THE COMPLAINT SUBMITTED BY THE 4TH RESPONDENT DATED 23.10.2018
EXHIBIT R2(B)	TRUE COPY OF THE MINUTES OF TE PETITIONER'S SOCIETY DATED 23.10.2018
EXHIBIT R2(C)	TRUE COPY OF THE ORDER NO. (1)7872/2018/SCEC DATED 26.10.2018
EXHIBIT R4(A)	TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 6TH RESPONDENT DATED 23.10.2018.

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AV/13/11

Thelliyoor Service Co-Operative Bank Ltd. No. a 361 v. the State Co-Operative Election Commission

Case brief

What is this about?

What did the court decide?

Thelliyoor Service Co-Operative Bank Ltd. No. a 361 v. the State Co-Operative Election Commission

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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