Disposed

V.Balaram v. the Co-Operative Arbitration Court (Northern)

Kerala HC10 Jan 2019WP(C)/61/2019

Case brief

AI extract

What is this about?

A co-operative bank election was stayed before polling. The Court held that the Arbitration Court lacked authority to entertain the election dispute at that stage and that its order was reviewable under Article 226. It set aside the stay and consequential order, restricted interim administration, and directed steps to complete the election.

What did the court decide?

Election stay and consequential order set aside; Administrator restricted to day-to-day affairs; directions issued for a polling resolution and election notification.

V.Balaram Vs the Co-Operative Arbitration Court (Northern) — Election Law | Kerala HC (2019)

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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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THURSDAY, THE 10TH DAY OF JANUARY 2019 / 20TH POUSHA, 1940

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WP(C).No. 61 of 2019

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PETITIONERS:

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1 V.BALARAM, MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT VELLOOR HOUSE, GURUVAYOOR, THRISSUR DISTRICT.

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2 YATHEENDRADAS, MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT PONNARASSERY HOUSE, MANATHALA, PUNNA P.O., CHAVAKKAD-680 057.

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3 VENUGOPALAN, MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT KODAMANA HOUSE, IRINGAPPURAM-680 103, THRISSUR DISTRICT.

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4 UDAYAN K.P., MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT KURUVANGATT PUTHEN VEETTIL, GURUVAYOOR, THRISSUR DISTRICT680 046.

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5 VEERAMANI K.D., MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT KIZHAKKAKATH, BLANGAD, KADAPPURAM, THRISSUR DISTRICT-680 052.

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6 SUBAIDA, MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT KANAMBULLY HOUSE, MANATHALA, CHAVAKKAD, THRISSUR DISTRICT-680 058.

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7 NIKHIL G. KRISHNAN, MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT VEETTIKKEEZHY HOUSE, GURUVAYUR, THRISSUR DISTRICT-680 030.

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8 RASEENA R.V., MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT VALIYAKATH HOUSE, R.K.RESIDENCY, POOKKULAM ROAD, CHAVAKKAD, THRISSUR DISTRICT-680 035.

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9 SHIJITHA, MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT CHOZHIDAKATH HOUSE, THIRUVATHRA, CHAVAKKAD P.O., THRISSUR -680 034.

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10 BINEESH A.B., MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT APPANATH HOUSE, BLANGAD, KADAPPURAM, THRISSUR DISTRICT-680 052.

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11 MURALEEDHARAN, MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT VAKKAYIL, SREENILAYAM, PUTHENBALLI P.O., THRISSUR -680 065.

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12 KRISHNAKUMAR K., MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT KUNNATHULLY HOUSE, PALUVAI P.O., THRISSUR DISTRICT-680 063.

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13 ABOOBACKER, MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT RAMANATH HOUSE, THAIKKAD, GURUVAYUR, THRISSUR DISTRICT-680 054.

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14 ANTO THOMAS, MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT CHEERAN HOUSE, PERAKAM, THRISSUR DISTRICT-680 506.

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15 SATHAR K.V., MEMBER AND CANDIDATE, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT, RESIDING AT KARUPPAMVEETTIL, MUTHUVATTOOR, CHAVAKKAD P.O., THRISSUR -680 040.

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BY ADVS.GEORGE POONTHOTTAM (SR.) SRI.ARUN CHANDRAN SMT.NISHA GEORGE

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RESPONDENTS:

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1 THE CO-OPERATIVE ARBITRATION COURT (NORTHERN), KOZHIKODE-673 001, REPRESENTED BY ITS SECRETARY.

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2 T.T.SIVADASAN, S/O. THAMY, THARAYIL VEEDU, KAVEED P.O., KOTTAPPADY, THRISSUR DISTRICT-680 505.

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3 V.V.JOY, AGED 49 YEARS, S/O VARADUNNY, VADAKKOOTT VEEDU, THAMARAYOOR P.O., THRISSUR DISTRICT-680 505.

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4 THE GURUVAYOOR CO-OPERATIVE URBAN BANK LTD.NO.F.1652, H.O.GURUVAYUR, THRISSUR DISTRICT, PIN-680 101, REPRESENTED BY THE GENERAL MANAGER.

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5 STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS SECRETARY.

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6 THE ELECTORAL OFFICER/ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES, CHAVAKKAD, THRISSUR-680 058.

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7 THE RETURNING OFFICER,

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GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F.1652, H.O. GURUVAYUR, THRISSUR DISTRICT-680 101.

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ADDL.8THE JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, THRISSUR, PIN-680003. (ADDL.R8 IS SUO MOTU IMPLEADED AS PER ORDER DATED 10/01/2019)

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BY ADVS. R4 BY SRI.D.SOMASUNDARAM R2 BY SRI.P.C.SASIDHARAN R3 BY SRI.RAJIT

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R5 TO R7 SMT C.S.SHEEJA, SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2019, ALONG WITH WP(C).235/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)Nos.61 and 235 of 2019

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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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THURSDAY, THE 10TH DAY OF JANUARY 2019 / 20TH POUSHA, 1940

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WP(C).No. 235 of 2019

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PETITIONERS:

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1 THE GURUVAYOOR CO-OPERATIVE URBAN BANK LTD. NO.F1652, GURUVAYOOR,

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REPRESENTED BY ITS GENERAL MANAGER.

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2 THE BOARD OF DIRECTORS OF THE GURUVAYOOR COOPERATIVE URBAN BANK LTD.NO.F.1652, GURUVAYOOR, REPRESENTED BY ITS CHAIRMAN YATHEENDRADAS, PONNARASSERY VEEDU, PUNNA MANATHALA, CHAVAKKAD, THRISSUR.

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BY ADV. SRI.D.SOMASUNDARAM

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RESPONDENTS:

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1 THE CO-OPERATIVE ARBITRATION COURT (NORTHERN), KOZHIKODE-680 505.

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2 T.T.SIVADASAN, THARAYIL VEEDU, P.O. KAVEED KOTTAPPADY, THRISSUR DISTRICT-680 505.

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3 V.V.JOY, VADAKKOTTU VEEDU, P.O. THAMARAYOOR, THRISSUR-680 505.

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4 STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM-695 033.

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5 ELECTORAL OFFICER, ASSISTANT REGISTRAR, CHAVAKKAD, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD., GURUVAYOOR-680 058.

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6 RETURNING OFFICER, GURUVAYOOR CO-OPERATIVE URBAN BANK LTD., GURUVAYOOR-680 101.

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7 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THRISSUR-680101.

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BY ADVS. R2 BY SRI.P.C.SASIDHARAN R3 BY SRI.RAJIT R4 TO R7 BY SMT.C.S.SHEEJA, SR. GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2019, ALONG WITH WP(C).61/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)Nos.61 and 235 of 2019

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JUDGMENT

Since common issues are raised, these writ petitions are heard together and being disposed of by this common judgment.

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W.P.(C) No.61 of 2019:- The petitioners in this writ petition, who are members of the 4^th respondent Bank, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, who have submitted their nomination in the election to the Board of Directors of the said Society, in terms of Ext.P1 notification dated 09.11.2018 issued by the 5^th respondent State Co-operative Election Commission, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P3 ARC No.55 of 2018 filed by respondents 2 and 3 before the 1^st respondent Cooperative Arbitration Court; Ext.P4 interlocutory application, i.e., I.A.No.165 of 2018 filed in ARC No.55 of 2018; and also Ext.P5 interim order dated 27.12.2018 of that court in I.A.No.165 of 2018 in ARC No.55 of 2018. The petitioners have also sought for a

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declaration that the interim order passed by the Co-operative Arbitration Court as per Ext.P5 is an action without authority and by abusing the position as the Presiding Officer of that court, by the present incumbent in that office; and a writ commanding the respondents to conduct election on a day that may be fixed by this Court, preferably on 12.01.2019.

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2.1. On 03.01.2019, when this writ petition came up for admission, this Court issued urgent notice on admission by special messenger to respondents 1 to 3, returnable by 07.01.2019. The 4^th respondent entered appearance through counsel and the learned Special Government Pleader entered appearance for respondents 5 to 7.

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2.2. A counter affidavit has been filed by the 2^nd respondent opposing the reliefs sought for in this writ petition. The 3^rd respondent has also filed a counter affidavit. The petitioners have filed a reply affidavit to the counter affidavit filed by the 2^nd respondent.

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W.P.(C) No.235 of 2019:- This writ petition is filed

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by the 4^th respondent Society in W.P.(C) No.61 of 2019, along with its Board of Directors, seeking a writ of certiorari to quash Ext.P2 interim order dated 27.12.2018 of the 1^st respondent Co-operative Arbitration Court in I.A.No.165 of 2018 in ARC No.55 of 2018 (which is Ext.P5 order in W.P.(C)No.61 of 2019) and Ext.P2(a) consequential order dated 29.12.2018 issued by the 4^th respondent State Co-operative Election Commission. The petitioners have also sought for a declaration that, as per law, the 1^st respondent Co-operative Arbitration Court gets jurisdiction to entertain an arbitration case with regard to the election to a Society only after the election, if it is referred to it, within one month from the date of election. So entertaining an ARC with regard to disputes regarding election in a Society before the election and passing the impugned order staying the election are without jurisdiction. The further reliefs sought for are a writ of mandamus commanding respondents 4 to 6 to conduct election (polling) as per Ext.P1 notification on any date prior to 11.01.2019, so as to ensure what is envisaged in Article 243ZK of

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the Constitution of India; and a writ of mandamus commanding the 7^th respondent to appoint three persons from the existing Board of Directors of the Society to function as Administrative Committee, if in any circumstances the election is to take place after 11.01.2019.

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3.1. On 04.01.2019, when this writ petition came for admission, urgent notice on admission by Special Messenger was ordered to respondents 1 to 3. The learned Senior Government Pleader took notice on admission for respondents 4 to 7.

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3.2. A counter affidavit has been filed by the 3^rd respondent opposing the reliefs sought for in this writ petition. The learned counsel for the petitioners has filed a memo dated 09.01.2019, producing therewith a copy of the request dated 08.01.2019 submitted by the General Manager in-charge of the petitioner Society to the 4^th respondent State Co-operative Election Commission, enclosing therewith a copy of the resolution dated 08.01.2019 of the Board of Directors to conduct election on 12.01.2019.

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Heard the learned Senior Counsel for the petitioners in W.P.(C) No.61 of 2019, the learned counsel for the petitioners in W.P(C) No.235 of 2019, the learned Special Government Pleader for the official respondents and also the respective counsel for the party respondents.

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The issue that arises for consideration in this writ petitions is as to whether any interference under Article 226 of the Constitution of India is warranted on the order dated 27.12.2018 in I.A.No.165 of 2018 in ARC No.55 of 2018 of the Co-operative Arbitration Court (Ext.P5 in W.P.(C)No.61 of 2019 and Ext.P2 in W.P.(C)No.235 of 2019) and also the consequential order issued by the State Co-operative Election Commission dated 29.12.2018 (Ext.P2(a) in W.P.(C)No.235 of 2019).

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Another relief sought for in W.P.(C)No.61 of 2019 is a

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writ of certiorari to quash Ext.P3 plaint in ARC No.55 of 2018 and Ext.P4 interlocutory application, i.e., I.A.No.165 of 2018. If ARC No.55 of 2018 and I.A.No.165 of 2018 are not maintainable, the petitioners can raise the question of maintainability, as a

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preliminary issue, before the Co-operative Arbitration Court. The power of this Court under Article 226 of the Constitution of India cannot be exercised to quash the plaint in ARC No.55 of 2018 or I.A.No.165 of 2018 in that ARC.

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The pleadings and materials on record would show that, in terms of Ext.P1 notification dated 09.11.2018 issued by the State Co-operative Election Commission, the election to the Board of Directors of the Society is scheduled to be held on 30.12.2018. As per the said notification, the preliminary voters list was published on 28.11.2018, which was finalised on 07.12.2018. Nominations were submitted on 17.12.2018 and they were scrutinised on 18.12.2018. Thereafter, the list of valid nominations were published by the Returning Officer on 19.12.2018.

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There was objection as to the final voters list published by the Electoral Officer, which was the subject matter of challenge in W.P.(C)No.40379 of 2018 filed by some of the members of the Society and W.P.(C)No.40447 of 2018 filed by the Society. The 2^nd

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respondent in W.P.(C)Nos.61 and 235 of 2019 namely, Shri. T.T. Sivadasan was the 14^th respondent in W.P.(C)No.40379 of 2018 and the 12^th respondent in W.P.(C) No.40447 of 2018. W.P.(C) No.40379 of 2018 was filed by the members of the Society, seeking a writ of certiorari to quash the order dated 06.12.2018 issued by the Electoral Officer, whereby the final voters list in the election to the Board of Directors of the Society, which was scheduled to be held on 30.12.2018, was finalised. The petitioners therein have also sought for a writ of mandamus commanding the respondents therein to include them and other members, who are included in the list of members produced as Ext.P16 in that writ petition, in the final voters list and allow them to cast their votes in the election to the Board of Directors of the Society. W.P.(C) No.40447 of 2018 was filed by the Society, seeking an order to quash the very same order dated 06.12.2018, which was produced as Ext.P12. A writ of mandamus was also sought for, commanding the respondents therein to include the members, who are in the list produced as Ext.P13 (which was Ext.P16 in the

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other writ petition), in the final voters list and allow them to cast their votes in the election scheduled to be held on 13.12.2018.

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The aforesaid writ petitions were dismissed by the judgment dated 17.12.2018 (Ext.P3 in W.P.(C)No.235 of 2019), whereby it was held that, if the petitioners are having any dispute in relation to the election to the Board of Directors of the Society, which is scheduled to be held on 30.12.2018, in terms of Ext.P5 notification issued by the State Co-operative Election Commission, they have to raise such dispute before the Co-operative Arbitration Court, by invoking the statutory remedy available under Section 69 of the Kerala Co-operative Societies Act, within a period of one month from the date of election, and as such, they cannot approach this Court, seeking interference under Article 226 of the Constitution of India. The dismissal of the writ petitions by the aforesaid judgment was without prejudice to the right of the petitioners therein to raise any dispute in connection with the election to the Board of Directors of the Society, conducted in terms of the election notification dated 09.11.2018,

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by invoking the statutory remedy available under Section 69 of the Act, within a period of one month from the date of election.

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Immediately, after the dismissal of both writ petitions, the 2^nd respondent herein, namely, Mr. T.T. Sivadasan, along with one Mr. V.V. Joy, the 3^rd respondent herein have approached the 1^st respondent Co-operative Arbitration Court, by filing ARC No.55 of 2018, invoking clause (c) of sub-section (2) of Section 69 of the Kerala Co-operative Societies Act, read with Rule 67 of the Kerala Co-operative Societies Rules. A reading of the averments in ARC No.55 of 2018, a copy of which is placed on record as Ext.P3 in W.P.(C) No.61 of 2019, would show that their challenge is against the finalisation of the voters list by the Electoral Officer, i.e., order dated 19.12.2018, which was originally under challenge before this Court in W.P.(C) Nos.40379 of 2018 and 40447 of 2018. Various reliefs have also been sought for in ARC No.55 of 2018, namely, a declaration that the final voters list published on 07.12.2018 is not valid; to set aside acceptance of the nomination of respondents 6 to 13 in that ARC; to cancel the election

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scheduled to be held on 30.12.2018 in terms of the final voters list published on 07.12.2018; etc. The aforesaid ARC is one filed on 27.12.2018.

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Along with ARC No.55 of 2018, respondents 2 and 3 herein have filed I.A.No.165 of 2018, a copy of which is placed on record as Ext.P4 in W.P.(C) No.61 of 2019, seeking stay of the election to the Board of Directors of the Society, which was scheduled to be held on 30.12.2018. In that interlocutory application, the 1^st respondent Co-operative Arbitration Court passed Ext.P5 order dated 27.12.2018, which reads thus:-

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“The Plaint, affidavit and Petition are filed by the Petitioners in ARC 55/2018. The request in the Petitioner as well as in the Affidavit filed by the Petitioners, is for staying the election scheduled to be held on 30.12.2018 to the Director Board of the 1^st Respondent Bank, being conducted by the Respondent No.5, the Returning Officer, Guruvayur Unit Inspector, Assistant Registrar (General), Co-operative Societies, Chavakkad.

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I have perused the Plaint as well as the Affidavit filed by the Petitioners and the Petition for staying the election scheduled to be held on 30.12.2018. I have also heard the Counsel for the Petitioners. On a perusal of the documents

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as well as the argument advanced by the Petitioners' counsel, a Prima-facie case has been made out in this matter. So, for the interest of justice I am inclined to grant interim stay for a period of one month to the election scheduled to be held on 30.12.2018 for electing the Board of Directors of the Respondent Bank, i.e., Guruvayur Sahakarana Urban Bank Ltd. No.F-1652. The case is posted to 22.01.2019. Issue Urgent Notice to all the Respondents.” 12. As far as the challenge made in this writ petition

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against the order dated 27.12.2018 in I.A. No.165 of 2018 in ARC No.55 of 2018 (Ext.P5 in W.P.(C)No.61 of 2019 and Ext.P2 in W.P. (C)No.235 of 2019) and also the consequential order dated 29.12.2018 of the State Co-operative Election Commission (Ext.P2(a) in W.P.(C) No. 235 of 2019) is concerned, the issue that has to be decided is as to whether the provisions under Section 69 of the Kerala Co-operative Societies Act can be invoked by a member of the Society, raising a dispute in connection with the election to the Managing Committee or the Board of Directors of that Society, before the conduct of election. While deciding that issue, this Court has also to consider the question of maintainability of this writ petition raised by the

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learned counsel for the 2^nd and 3^rd respondents, by contending that the order dated 27.12.2018 of the Co-operative Arbitration Court is a judicial order of civil court, which cannot be challenged by invoking the writ jurisdiction under Article 226 of the Constitution of India and the remedy open to the petitioners is to invoke the supervisory jurisdiction under Article 227 of the Constitution of India. The learned counsel for the 3^rd respondent would contend further that the embargo under sub-section (3) of Section 69 of the Act has application only when a dispute is referred to the Co-operative Arbitration Court by invoking the provisions under Section 69 of the Act and it has no application when a person approaches that Court with an ARC.

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Chapter IX of the Kerala Co-operative Societies Act, substituted by the Kerala Co-operative Societies (Amendment) Act, 1999 deals with settlement of dispute. As per Section 69 of the Act, disputes have to be decided by the Co-operative Arbitration Court and the Registrar. As per sub-section (1) of Section 69, notwithstanding anything contained in any law for the

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time being in force, if a dispute arises as to any of the matters enumerated in clauses (a) to (h) of sub-section (1), such dispute shall be referred to the Co-operative Arbitration Court constituted under Section 70A of the Act, in the case of non-monetary disputes, and to the Registrar, in the case of monetary disputes and the Arbitration Court or the Registrar, as the case may be, shall decide such dispute and no other court or other authority shall have jurisdiction to entertain a suit or other proceedings in respect of such disputes.

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Sub-section (2) of Section 69 of the Act provides that for the purpose of sub-section (1), the disputes enumerated in clauses (a) to (d) of sub-section (2) shall also be deemed to be disputes. Clause (c) of sub-section (2) of Section 69 provides that any dispute arising in connection with the election to the Board of Management or any office of the Society shall also be deemed to be a dispute for the purpose of sub-section (1) of Section 69 of the Act. As per Explanation to clause (c) of sub-section (2) of Section 69, a dispute arising at any stage of an election

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commencing from the convening of the general body meeting for the election shall be deemed to be a dispute arising in connection with the election. Sub-section (3) of Section 69 provides that no dispute arising in connection with the election to the Board of Management or an officer of the society shall be entertained by the Co-operative Arbitration Court, unless it is referred to it within one from the date of election.

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The provisions under Section 69 of the Act, referred to hereinbefore, make it explicitly clear that if a member of a Society is having any dispute in connection with the election to the Board of Directors or the Managing Committee of that Society, his remedy is to invoke the jurisdiction of the Co-operative Arbitration Court, under Section 69 of the Act, within one month from the date of election. In view of Explanation to clause (c) of subsection (2) of Section 69 of the Act, a dispute arising at any stage of the election commencing from the convening of the general body meeting for the election shall be deemed to be a dispute arising in connection with the election. Rule 35A of the Kerala Co-

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operative Societies Rules deals with the procedure regarding the conduct of election to the Committee of the Society by the State Co-operative Election Commission. Sub-rule (4) of Rule 35A deals with publication of final voters list. If that be so, any dispute in relation to the final voters list published by the electoral officer is a dispute arising in connection with the election, which has to be raised before the Co-operative Arbitration Court constituted under Section 70A of the Kerala Co-operative Societies Act, by invoking the statutory remedy available under Section 69 of the Act.

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As already noticed, the proceedings issued by the Electoral Officer dated 06.12.2018, whereby the final voters list for the elect ion to the Board of Directors of the Society, which was scheduled to be held on 30.12.2018 was finalised was under challenge in W.P.(C) Nos.40 379 and 40447 of 2018 filed before this Court, which ended in dismissal by the judgment dated 17.12.2018, whereby it was made clear that the remedy open for raising such disputes in connection with the election to the Board of Directors of the Society is to approach the Co-operative

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Arbitration Court, by invoking the provisions under Section 69 of the Act, within one month from the date of election.

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After referring to sub-section (3) of Section 69 of the Kerala Co-operative Societies Act, the learned counsel for the 3^rd respondent would contend that the embargo in sub-section (3) has application only when a dispute is referred to the Cooperative Arbitration Court and as such the said provision has no application when a member of a Society approaches that court by filing a petition, i.e., an A.R.C.

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Chapter IX of the Kerala Co-operative Societies Rules, substituted with effect from 02.05.2000, deals with the procedure for settlement of disputes. Rule 67 deals with reference of disputes, payment of expenses and decisions on disputes. Subrule (1) of Rule 67 provides that the reference of any dispute to the Co-operative Arbitration Court and to the Registrar under Section 69 of the Act shall be in writing. As per sub-rule (2), such an application shall be accompanied by a list of relevant records on which the dispute is based and a receipted challan to evidence

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payment of the fees fixed under clause (a) of the sub-rule (7), for deciding the dispute. In the case of an application, filed for and on behalf of a Society, a certified copy of the resolution adopted by the committee resolving to file the application, shall also be filed. As per sub-rule (3), non-monetary disputes are to be filed before the Co-operative Arbitration Court and monetary disputes are to be filed before the Registrar.

¶146

A reading of the provisions of Rule 67 of the Kerala Cooperative Societies Rules would make it explicitly clear that the reference of a dispute to the Co-operative Arbitration Court or to the Registrar, as the case may be, under Section 69 of the Kerala Co-operative Societies Act can only be made by way of an application in writing, as provided under sub-rules (1) and (2) of Rule 67. In such circumstances, the contention of the learned counsel for the 3^rd respondent that the embargo in sub-section (3) of Section 69 of the Act has application only when a dispute is referred to Co-operative Arbitration Court and not in a case in which a person approaches the Arbitration Court with a petition,

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i.e., an A.R.C., can only be repelled and I do so.

¶150

The learned counsel for the 2^nd respondent in W.P. (C)No.61 of 2019 would also raise a contention that sub-section (3) of Section 69 of the Act has no application in the case of an election to the Managing Committee or Board of Directors of a Society, since clause (c) of sub-section (2) of Section 69 takes within its sweep only a dispute arising in connection with the election of the Board of Management or any officer of the Society.

¶151

In this context, the learned Senior Counsel for the petitioners in W.P.(C)No.61 of 2019 would place reliance on the judgment of a Division Bench of this Court in Narayanan

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Nambiar v. Deputy Registrar of Co-operative Societies

¶153

(1973 KLT 213) , wherein this Court was dealing with the election to the Managing Committee of Azhikode Service Cooperative Bank, which was scheduled to be held on 25.6.1972. After referring to the provisions under Section 69 of the Act, as it stood prior to the substitution of Chapter IX of the Kerala Cooperative Societies Act by the Kerala Co-operative Societies

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(Amendment) Act, 1999, the Division Bench held that in view of sub-section (3) of Section 69, the period of limitation for raising a dispute in connection with the election is one month from the date of election. Therefore, the 1^st respondent Registrar of Cooperative Societies had no jurisdiction under Section 69 of the Act to entertain such an application on the eve of election. Paragraphs

¶157

2 to 5 of the said decision read thus;

¶158

“2. Counsel for the petitioner has contended on the principle of the decision in Dr. Narayan Shankar Khare v. Election Commission of India (AIR 1957 SC 694) that under Section 69 of the Act the Deputy Registrar of Cooperative Societies has no jurisdiction to act under the section in relation to any dispute in connection with an election, before the election bad taken place. The Supreme Court decision was given with reference to the provision in Article 71(1) of the Constitution which is in these terms:

¶159

"71(1) All doubts and disputes arising out of or in connection with the election of a President or Vice President shall be inquired into and decided by the Supreme Court whose decision shall be final".

¶160

The Supreme Court observed:

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"Article 71(1) confers jurisdiction and power on

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the Supreme Court to inquire into and decide "all doubts and disputes arising out of or in connection with the election of a President or Vice President". The word "election" occurring in Article 71(1) must be given the same wide meaning as comprising the entire election process culminating in a candidate being declared elected, therefore, the inquiry is to be made after such completed election. i. e., after a candidate is declared to be elected as President or Vice President as the case may be."

¶165

The principle of this decision has been applied by the Bombay High Court in Madhukar Ganpatrao Somvanshi v. Sheshrao Narayanarao Biradar and others (AIR 1972 Bom.129) in interpreting Section 91 of the Maharashtra Cooperative Societies Act, 1960. Section 91 of that Act provides among other things for the settlement of any dispute touching the constitution and elections of the office bearers of a society.

¶166

Similarly Section 69(1) of the Act has empowered the Registrar to settle various disputes mentioned in clauses (a) to (h) of sub-section (1) of Section 69. Sub-section (2) of that Section states that for the purposes of sub-section (1) "any dispute arising in connection with the election of the Board of Management or any officer of the society"

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shall be deemed to be disputes. There is an explanation to clause (c) of sub-section (2) which is in these terms:

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“Explanation.-- A dispute arising at any stage of an election commencing from the convening of the general body meeting for the election shall be deemed to be a dispute arising in connection with the, election."

¶171

Sub-sections (3) and (4) may also be extracted:

¶172

"(3) No dispute arising in connection with the election of the Board of Management or an officer of the society shall be entertained by the Registrar unless it is referred to him within one month from the date of the election.

¶173

(4) If any question arises whether a dispute referred to the Registrar under this section is a dispute as defined in clause (i) of Section 2, the decision thereon of the Registrar shall be final".

¶174

We do not think it is possible notwithstanding the explanation to clause (c) of sub-section (2) of Section 69 of the Act to read the section in a manner different from which Section 91 of the Maharashtra Co-operative Societies Act, 1960 has been interpreted by the Bombay High Court. Article 71(1) of the Constitution has been interpreted by the Supreme Court in the decision that we have referred to subsection (3) provides that the period of limitation is one

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month from the date of the election. This also shows that the disputes in connection with the election can be raised only after an election. The first respondent therefore had no jurisdiction under Section 69 of the Act on the eve of the election that was fixed for the 25^th June to deal with an application for stay purporting to be based on certain disputes pertaining to the election and pass the order Ext.P2 on 23.6.72 staying the election. This ill conceived order of the first respondent has given rise to two other original petitions before this Court.”

¶178

In Shri Sant Sadguru Janardan Swami (Moingiri

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Maharaj) Sahakari Dugdha Utpadak Sanstha, and another

¶180

v. State of Maharashtra [(2001) 8 SCC 509] , in the context of

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Maharashtra Co-operative Societies Act, 1960 and Maharashtra Specified Cooperative Societies Elections to Committees Rules, 1971, the Apex Court held that, the preparation of provisional list of voters, filing of objection against the provisional list of voters, consideration of the objection by the Collector and finalising the list of voters, all occur in the Rules which cover the entire process of election. The Rules framed for election of specified Societies are complete code in itself, providing for the entire process of election beginning from the stage of preparation of the provisional voters'

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list, decision on the objection by the Collector, finalisation of electoral rolls, holding of election and declaration of the result of election.

¶185

In Shaji K. Joseph v. V. Viswanath [(2016) 4 SCC

¶186

429] , in the context of the Dental Council (Election) Regulations, 1952 the Apex Court held that, whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that, if the process of election is interfered with by the courts, possibly no election would be completed without court's order. Very often, for frivolous reasons, candidates or others approach the courts and by virtue of interim orders passed by the courts, the election is delayed or cancelled, in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. Therefore, all disputes with regard to election should be dealt with only after completion of the election.

¶187

In Jayavarma K. v. State Co-operative Election Commission and others [2017 (2) KHC 190] a Division Bench

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of this Court held that, a writ petition can be entertained on well settled parameters in order to correct or smoothen the progress of the election. The instance of rejection of the nomination on totally untenable grounds is an example which could be rectified without upsetting the election calendar. The Division Bench held further that, a writ court should act with circumspection as the inevitable consequence of not holding an election in time is the advent of an Administrator. The appointment of an Administrator, in lieu of an elected Managing Committee, should be the last resort in a democratic process. The salutary principles laid down by the Apex Court in Election Commission of India v. Ashok Kumar [(2000) 8 SCC 216] should apply fortiori when an alternate remedy well exists under the Kerala Co-operative Societies Act, 1969 to question the process of election to a Society registered.

¶191

Part IXB of the Constitution of India, inserted by the Constitution (97th Amendment) Act, 2011 deals with Co-operative Societies. Article 243ZK inserted by the said Amendment Act

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deals with election of members of board of Co-operative Societies. As per clause (2) of Article 243ZK, the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a cooperative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law. As per the proviso to clause (2) of Article 243ZK, the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections.

¶195

In Reji Thomas v. State of Kerala [2018 (2) KHC 842] a Three-Judge Bench of the Apex Court held that, Section 69 of the Kerala Co-operative Societies Act, 1969 is the mechanism provided by the State Legislature as contemplated under clause (2) of Article 243ZK of the Constitution of India. After referring to the provisions under sub-section (3) of Section 69 of the said Act, which provides that no dispute arising in connection with the election of the Board of Management or an officer of the society shall be entertained by the Co-operative Arbitration Court unless it is referred to it within one month from

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the date of the election, the Apex Court held that, once the mechanism provided under the Statute provides for a time schedule for preferring an election petition, in the absence of a provision in the Statute for enlarging the time under any given circumstances, no Court, whether the High Court under Article 226 or the Apex Court under Article 32, Article 136 or Article 142 of the Constitution can extend the period in election matters.

¶199

It was after relying on the law laid down in the decisions referred to supra in paragraphs 22, 23, 24 and 26, that this Court by the judgment dated 17.12.2018 dismissed W.P. (C)Nos.40379 and 40447 of 2018, by holding that, if the petitioners therein are having any disputes arising in connection with the election to the Board of Directors of the Society, they have to raise such disputes before the Co-operative Arbitration Court, by invoking statutory remedy available under Section 69 of the Act, within a period of one month from the date of election. However, immediately after that judgment, the 2^nd respondent herein, (who was the 14^th respondent in W.P.(C)No.40379 of 2018

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and the 12^th respondent in W.P.(C)No.40447 of 2018), along with the 3^rd respondent herein, moved A.R.C.No.55 of 2018 before the 1^st respondent Co-operative Arbitration Court, invoking Section 69 of the Act, raising dispute as to the final voters list published by the Electoral Officer in the process of election to the Board of Directors of the Society, which was scheduled on 30.12.2018, in terms of Ext.P1 election notification.

¶203

A reading of the plaint in A.R.C.No.55 of 2018 would make it explicitly clear that the filing of W.P.(C)Nos.40447 of 2018 and 40379 of 2018 and also the outcome of the said writ petitions were not disclosed before the 1^st respondent Co-operative Arbitration Court. The plaint in A.R.C.No.55 of 2018 is placed on record as Ext.P8 in W.P.(C)No.235 of 2019. It was nothing but a calculated attempt made by respondents 2 and 3 herein to secure orders from that court, suppressing material facts. Moreover, in view of the statutory provisions contained in sub-section (3) of Section 69 of the Act, and the law laid down by the Division Bench of this Court in Narayanan Nambiar's case (supra), such a plaint

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should not have been entertained by the Co-operative Arbitration Court. The contention to the contra raised by the learned counsel for the 2^nd respondent is untenable.

¶207

Going by the provisions under Section 69 of the Act, the Co-operative Arbitration Court constituted in terms of Section 70A of the Act has the jurisdiction to entertain non-monetary dispute enumerated in clauses (a) to (d) of sub-section (2) of Section 69 of the Act, in respect of a Society. In view of the provisions under sub-section (3), in relation to disputes in connection with election, i.e., a dispute falling under clause (c) of sub-section (2), the Co-operative Arbitration Court has power to entertain such disputes only after the date of election, within the time limit stipulated in sub-section (3). The object of such a provision is to ensure that the process of election is not delayed or cancelled on account of any interference made by the Cooperative Arbitration Court and that, after the election, the elected committee takes charge before the expiry of the term of the existing committee. It was without noticing the embargo

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under sub-section (3) of Section 69 of the Act and also the law laid down in the decisions referred to supra, that the 1^st respondent Co-operative Arbitration Court has passed the order dated 27.12.2018 in I.A.No.165 of 2018 in A.R.C.No.55 of 2018, whereby the entire process of election to the Board of Directors of the 1^st respondent Society has been stalled. In such circumstances, the order dated 27.12.2018 of the 1^st respondent Co-operative Arbitration Court (Ext.P5 in W.P.(C)No.61 of 2019 and Ext.P2 in W.P.(C)No.235 of 2019), which is one issued absolutely without any authority of law, and also the consequential order, i.e., Ext.P2(a) order of the State Cooperative Election Commission in W.P.(C)No.235 of 2019, cannot be sustained in law.

¶211

The next issue that has to be decided is as to whether an interlocutory order passed by the Co-operative Arbitration Court constituted under Section 70A of the Kerala Co-operative Societies Act, in a reference made under Section 69 of the Act, can be interfered with by this Court, invoking the writ jurisdiction

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under Article 226 of the Constitution of India.

¶215

The provisions under Section 70A of the Kerala Cooperative Societies Act, which deals with constitution of Cooperative Arbitration Courts would show the Co-operative Arbitration Courts are constituted by the Government to exercise the powers and discharge functions conferred on it under the provisions of the Act. As per sub-section (2) of Section 70A, the qualifications, term, salary and allowances and other conditions of service of the person to be appointed as the Co-operative Arbitration Court shall be such, as may be decided by the Government from time to time. As per sub-section (3), the Government shall make rules for regulating the procedure and disposal of business of the Co-operative Arbitration Court. Section 70 of the Act deals with award on disputes. As per sub-section (1) of Section 70 of the Act, the Co-operative Arbitration Court, on receipt of reference of a dispute under sub-section (1) of Section 69, shall pass an award in accordance with the provisions of the Act and the rules and the bye-laws made thereunder and such

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award shall, subject to the provisions of Section 82, be final. Subsection (2) provides that, the Co-operative Arbitration Court may, pending award of a dispute referred to it under Section 69, make such interlocutory orders as it may deem necessary in the interests of justice. Sub-section (3) provides further that, the Cooperative Arbitration Court shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit in respect of the matters enumerated in clauses (i) to (v) of that sub-section.

¶219

As per sub-rule (4) of Rule 67 of the Kerala Cooperative Societies Rules, the Presiding Officer of the Co-operative Arbitration Court shall be an Advocate having not less than 7 years bar experience, who shall be appointed by Government for a period of three years, as per the terms and conditions fixed by Government. The Presiding Officer shall be assisted by a Secretary not below the rank of an Assistant Registrar of Cooperative Societies. Sub-rule (5) of Rule 67 provides further that the Co-operative Arbitration Court or the Registrar or the person

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deciding the disputes or the Arbitrator shall have power to administer oaths, to require the attendance of all parties concerned and of witnesses and to require the production of all books and documents relating to the matter of the dispute.

¶223

A reading of the provisions under the Kerala Cooperative Societies Act and the Rules made thereunder would make it explicitly clear that what is contemplated under Section 69 of the Act is resolution of disputes by way of arbitration. In the case of monetary disputes, such resolution of the dispute will be done by the Registrar of the Co-operative Societies or a person duly authorised by the Registrar. On the other hand, in the case of non-monetary disputes, (after the substitution of Chapter IX of the Act by the Kerala Co-operative Societies (Amendment) Act, 1999) it has to be done by the Co-operative Arbitration Court. The relevant provisions under the Act and the Rules referred to hereinbefore would show that while exercising the powers under Section 69 of the Act, the Co-operative Arbitration Court constituted under Section 70A, acts as a quasi judicial authority

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and not a civil court over which this court can exercise

¶227

supervisory jurisdiction under Article 227 of the Constitution of India.

¶228

34. In Surya Dev Rai v. Ram Chander Rai [(2003) 6

¶229

SCC 675] , the law laid down by the Apex Court is that the High Court can exercise its extraordinary jurisdiction under Article 226 to interfere with a judicial order passed by a court of competent jurisdiction now stands overruled by the decision of a Three-Judge Bench in Radhey Shyam v. Chhabi Nath [(2015) 5 SCC 423] , wherein the Apex Court held that, judicial orders of Civil Courts are not amenable to a writ of certiorari under Article 226 and that the scope of Article 227 is different from Article 226. In Ram Kishan Fauji v. State of Haryana [(2017) 5 SCC 533] a Three-Judge Bench of the Apex Court followed the law laid down in Radhey Shyam's case (supra) while holding that, a writ petition which assails the order of a civil court in the High Court has to be understood, in all circumstances, to be a challenge under Article 227 of the Constitution and determination by the

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High Court under the said Article.

¶233

In Life Insurance Corporation of India v. Nandini

¶234

J. Shah and others [AIR 2018 SC 1197] , in the context of Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, a Three-Judge Bench of the Apex Court held that the challenge to an order of the District Judge as Appellate Officer had to be filed under Article 227 and not under Article 226 before a Single Judge of the High Court. The Apex Court held further that the Appellate Officer, while exercising powers under Section 9 of the Act, does not act as a persona designata but in his capacity as a pre-existing judicial authority in the district (being a District Judge or judicial officer possessing essential qualification designated by the District Judge). Being part of the district judiciary, the judge acts as a court and the order passed by him will be an order of the subordinate court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction. Paragraphs 48 to 55 of the said judgment reads

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thus;

¶238

“ 48. Even though the respondents have invited our attention to other decisions of High Courts and also of Supreme Court which have analysed the provisions of other legislations, it is unnecessary to dilate on those decisions as we intend to apply the principles underlying the decisions of Three-Judge Bench of this Court in Thakur Das (supra), Asnew Drums Pvt. Ltd. (supra), Maharashtra State Financial Corporation (supra), Ram Chander Aggarwal (supra) and Mukri Gopalan (supra), in particular, to conclude that the Appellate Officer referred to in Section 9 of the 1971 Act, is not a persona designata but acts as a civil court.

¶239

49. In other words, the Appellate Officer while exercising power under Section 9 of the 1971 Act, does not act as a persona designata but in his capacity as a pre existing judicial authority in the district (being a District Judge or judicial officer possessing essential qualification designated by the District Judge). Being part of the district judiciary, the judge acts as a Court and the order passed by him will be an order of the Subordinate Court against which remedy under Article 227 of the Constitution of India can be availed on the matters delineated for exercise of such jurisdiction.

¶240

50. Reverting to the facts of the present case, the respondents had resorted to remedy of writ petition under Article 226 and 227 of the Constitution of India. In view of

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our conclusion that the order passed by the District Judge (in this case, Judge, Bombay City Civil Court at Mumbai) as an Appellate Officer is an order of the Subordinate Court, the challenge thereto must ordinarily proceed only under Article 227 of the Constitution of India and not under Article 226. Moreover, on a close scrutiny of the decision of the learned Single Judge of the Bombay High Court dated 14.08.2012 we have no hesitation in taking the view that the true nature and substance of the order of the learned Single Judge was to exercise power under Article 227 of the Constitution of India; and there is no indication of Court having exercised powers under Article 226 of the Constitution of India as such. Indeed, the learned Single Judge has opened the judgment by fairly noting the fact that the writ petition filed by the respondents was under Articles 226 and 227 of the Constitution of India. However, keeping in mind the exposition of this Court in the case of Ram Kishan Fauji (supra) wherein it has been explicated that in determining whether an order of learned Single Judge is in exercise of powers under Article 226 or 227 the vital factor is the nature of jurisdiction invoked by a party and the true nature and character of the order passed and the directions issued by the learned Single Judge. In paragraph 40 of the reported decision, the Court adverting to its earlier decision observed thus:

¶244

“40. xxx xxx xxx

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Whether the learned Single Judge has exercised the jurisdiction Under Article 226 or Under Article 227 or both, would depend upon various aspects. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. It was reiterated that it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the letters patent appeal to discern and decide whether the order has been passed by the learned Single Judge in exercise of jurisdiction Under Article 226 or 227 of the Constitution or both. The two-Judge Bench further clarified that the Division Bench would also be required to scrutinise whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. The delineation with regard to necessary party not being relevant in the present case, the said aspect need not be adverted to.

¶248

Again in paragraphs 41 and 42, which may be useful for answering the matter in issue, the Court observed thus:

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“41. We have referred to these decisions only to highlight that it is beyond any shadow of doubt that the order of civil court can only be challenged Under Article 227 of the Constitution and from such challenge, no intra-court appeal would lie and in other cases, it will depend upon the other factors as have been enumerated therein.

¶252

At this stage, it is extremely necessary to cull out the conclusions which are deducible from the aforesaid pronouncements. They are:

¶253

42.1 An appeal shall lie from the judgment of a Single Judge to a Division Bench of the High Court if it is so permitted within the ambit and sweep of the Letters Patent.

¶254

42.2 The power conferred on the High Court by the Letters Patent can be abolished or curtailed by the competent legislature by bringing appropriate legislation. 42.3 A writ petition which assails the order of a civil court in the High Court has to be understood, in all circumstances, to be a challenge Under Article 227 of the Constitution and determination by the High Court under the said Article and, hence, no intra-court appeal is entertainable.

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42.4 The tenability of intra-court appeal will depend upon the Bench adjudicating the lis as to how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straitjacket formula for the same.”

¶258

(emphasis supplied)

¶259

51. In the case of Radhey Shyam (supra) decided by a Three- Judge Bench, this Court after analyzing all the earlier decisions on the point, restated the legal position that in cases where judicial order violated the fundamental right, the challenge thereto would lie by way of an appeal or revision or under Article 227, and not by way of writ under Article 226 and Article 32. The dictum in paragraphs 25, 27 and 29 of this decision is instructive. The same read thus:

¶260

“25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all other courts having limited jurisdiction subject to supervision of King's Court. Courts are set up under the Constitution or the laws. All courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision

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Under Article 227. Writ jurisdiction is constitutionally conferred on all High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of Tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to subordinate courts. Control of working of subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence Under Article 227. Orders of civil court stand on different footing from the orders of authorities or Tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence Under Article 227 is constitutional. The expression "inferior court" is not referable to judicial courts, as rightly observed in the referring order in paras 26 and 27 quoted above.

¶264

XXX XXX XXX

¶265

Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari Under Article 226. We are also in

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agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.

¶269

XXX XXX XXX

¶270

Accordingly, we answer the question referred as follows:

¶271

29.1 Judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution;

¶272

29.2 Jurisdiction Under Article 227 is distinct from jurisdiction Under Article 226.

¶273

29.3 Contrary view in Surya Dev Rai is overruled. (emphasis supplied)

¶274

52. Similar view has been expressed in Jogendrasinghji (supra). In this decision, it has been held that the order passed by the Civil Court is amenable to scrutiny only in exercise of jurisdiction under Article 227 of the Constitution of India and no intra court appeal is maintainable from the decision of a Single Judge. In paragraph 30 of the reported decision, the Court observed thus:

¶275

“30. From the aforesaid pronouncements, it is graphically clear that maintainability of a letters

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patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned Single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. Barring the civil court, from which order as held by the three-Judge Bench in Radhey Shyam (supra) that a writ petition can lie only Under Article 227 of the Constitution, orders from tribunals cannot always be regarded for all purposes to be Under Article 227 of the Constitution. Whether the learned Single Judge has exercised the jurisdiction Under Article 226 or Under Article 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court. There can be orders passed by the learned Single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the letters patent appeal to discern and decide whether the order has been

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passed by the learned Single Judge in exercise of jurisdiction Under Article 226 or 227 of the Constitution or both. The Division Bench would also be required to scrutinize whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated, one of the conclusions recorded by the High Court in the impugned judgment pertains to demand and payment of court fees. We do not intend to comment on the same as that would depend upon the rules framed by the High Court.”

¶282

In the concluding part of the reported judgment in paragraph 44, the Court observed thus:

¶283

“44. We have stated in the beginning that three issues arise despite the High Court framing number of issues and answering it at various levels. It is to be borne in mind how the jurisdiction under the letters patent appeal is to be exercised cannot exhaustively be stated. It will depend upon the Bench adjudicating the lis how it understands and appreciates the order passed by the learned Single Judge. There cannot be a straight-jacket formula for the

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same. Needless to say, the High Court while exercising jurisdiction Under Article 227 of the Constitution has to be guided by the parameters laid down by this Court and some of the judgments that have been referred to in Radhey Shyam (supra).”

¶287

53. In paragraph 45.2 of the same judgment, the Court authoritatively concluded that an order passed by a Civil Court is amenable to scrutiny of the High Court only in exercise of jurisdiction under Article 227 of the Constitution of India, which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the Civil Court and, therefore, no letters patent appeal would be maintainable.

¶288

54. In the impugned judgment, the Division Bench merely went by the decisions of the Delhi High Court and its own Court in Nusli Neville Wadia (supra) and Prakash Securities Pvt. Ltd. (supra). We do not find any other analysis made by the Division Bench to entertain the Letters Patent Appeal, as to in what manner the judgment of the learned Single Judge would come within the purview of exercise of powers under Article 226 of the Constitution of India. Absent that analysis, the Division Bench could not have assumed jurisdiction to entertain the Letters Patent Appeal

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merely by referring to the earlier decisions of the same High Court in Nusli Neville Wadia and Prakash Securities Pvt. Ltd.

¶292

55. In other words, the Division Bench of the Bombay High Court ought to have dismissed the Letters Patent Appeal filed by the respondents as not maintainable. In that event, it was not open to the Division Bench to undertake analysis on the merits of the case as has been done in the impugned judgment. That was impermissible and of no avail, being without jurisdiction. Indeed, that will leave the respondents with an adverse decision of the learned Single Judge dismissing their writ petition No.4337 of 2012 vide judgment dated 14.08.2012, whereby the eviction order passed by the Estate Officer dated 05.12.2011 and confirmed by the City Civil Court on 03.04.2012 has been upheld.”

¶293

Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, it cannot be said that the order passed by the Co-operative Arbitration Court is a judicial order of a civil court, which can be challenged only by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. In such circumstances, the contention raised by the learned counsel for the 2^nd and 3^rd respondents that the

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order dated 27.12.2018 of the 1^st respondent Co-operative Arbitration Court cannot be challenged, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, can only be repelled and I do so.

¶297

As already noticed, the order dated of the Co-operative Arbitration Court in I.A.No.165 of 2018, whereby the process of election to the Board of Directors of the Society stands interfered with, is absolutely without any authority of law. In view of the embargo contained in sub-section (3) of Section 69 of the Kerala Co-operative Societies Act, the Co-operative Arbitration Court should not have entertained the A.R.C. filed by the 2^nd and 3^rd respondents herein. In such circumstances, the order dated 27.12.2018 in I.A.No.165 of 2018 in A.R.C.No.55 of 2018 of the Co-operative Arbitration Court (Ext.P5 in W.P.(C)No.61 of 2019 and Ext.P2 in W.P.(C)No.235 of 2019) and also the consequential order dated 29.12.2018 (Ext.P2(a) order in W.P.(C)No.235 of 2019) are set aside.

¶298

In the counter affidavit filed by the 2^nd respondent in

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W.P.(C)No.61 of 2019, it is alleged that there are serious irregularities in the preparation of the electoral roll and that, persons with membership Nos.44218 to 46855 are not duly enrolled as members of the Society. The said fact was brought to the notice of the Electoral Officer by submitting Ext.R2 series of representations. The 2^nd respondent would also contend that there are serious financial irregularities including misappropriation of funds of the Society, which was brought to light in an inquiry conducted under Section 66 of the Kerala Co-operative Societies Act, as evidenced by Ext.R2(b) report of the Assistant Registrar dated 5.6.2018. The 3^rd respondent, who has filed counter affidavit in W.P.(C)No.61 of 2019, would also contend that around 3000 members have been newly introduced by the present Board of Directors of the Society, within a span of 2 months from the date of election, when a vigilance case is pending in respect of wide-spread corruption and financial irregularities committed by the present Board of Directors. According to the 3^rd respondent, the attempt of the present Board of Directors, most of whom are

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standing for re-election, is to come to power by hook or crook, as otherwise there is chance of criminal proceedings being initiated against them. The 3^rd respondent would contend further that, out of the total membership of 47,572, identity cards have been issued only to 18,744 members.

¶305

The petitioners have filed a reply affidavit in W.P. (C)No.61 of 2019 denying the allegations in the counter affidavit filed by the 2^nd respondent.

¶306

Section 28B of the Kerala Co-operative Societies Act deals with constitution of State Co-operative Election Commission. As per sub-section (1) of Section 28B, notwithstanding anything contained in the Act or in the Rules, the Government shall by notification in the Gazette, constitute a State Co-operative Election Commission for the superintendence, direction and control of the preparation of electoral rolls and for the conduct of all elections to the Co-operative Societies including election to the President/Vice President and Representative General Body.

¶307

In Velloor Service Co-operative Bank Ltd.,

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Kottayam v. State of Kerala and others (2015 (1) KLT 38) , a Division Bench of this Court has upheld the action of the State

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Co-operative Election Commission in temporarily postponing the election to the Managing Committee of that Society, in exercise of its powers under Section 28B of the Act, on a finding that the final voters list prepared by the Electoral Officer was not one prepared in conformity with the mandate of sub-rule (4) of Rule 35A. Paragraph 9 of the said decision reads thus;

¶312

“9. As we have already noticed, Election Commission has been constituted under Section 28B of the Act for the superintendence, directions and control of the conduct of elections to the Committees and Representative General Bodies of all credit, apex, central and Federal Societies in the State. When Ext.P6 final voters list is found to be one prepared not in conformity with the mandate in sub-rule (4) of Rule 35A, the Election Commission cannot be found fault with in issuing Ext.P4 notification, temporarily postponing the election scheduled to be held on 23.11.2014, in order to ensure a democratic and transparent electoral process by rescheduling the election from the stage of publication of the preliminary voters list. It was in such circumstances, the learned Single Judge repelled the challenge made by the appellant-society against Ext.P4 notification and Ext.P5

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consequential communication issued by the Election Commission. The learned Single Judge has also made it clear that, even if an Administrator or Administrative Committee is appointed, expeditious steps shall be taken to conduct the election. We find absolutely no illegality or irregularity in the judgment of the learned Single Judge, warranting any interference in this writ appeal.”

¶316

In Santhosh Kumar K.A. v. Mugu Service Cooperative Bank Ltd. and others (judgment dated 8.8.2018 in W.A.No.2453 of 2016), another Division Bench of this Court while disapproving the findings in the impugned judgment that the Election Commission cannot interfere in the process of election, held that the constitutional embargo is only for a suitor and not for the Election Commission as evident from Section 28B of the Kerala Co-operative Societies Act. The Election Commission has the power of superintendence over the conduct of election and can issue direction in the preparation of electoral roll, of course, on justifiable grounds. The Division Bench has cautioned that the State Co-operative Election Commission shall interfere only in deserving cases and the object should be to complete the election

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process in a fair manner at the earliest. Paragraphs 2 to 4 of the said decision read thus;

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“2. The appellant submits that the general body of the bank has recently resolved to start the election process afresh after rectifying the defects if any. This assumes significance since Section 16A of the Co-operative Societies Act empowering the active members alone to participate in the election has since been deleted. Interest of justice would be met by issuing a direction to take steps for conduct of election at the earliest preferably within three months. The administrative committee constituted pursuant to the interim order dated 20.12.2016 shall continue to be in office till the election process is complete.

¶321

We however disapprove of the finding in the impugned judgment to the effect that the Election Commission cannot interfere in the election process. The constitutional embargo is only for a suitor and not for the Election Commission as evident from Section 28B of the Kerala Co-operative Societies Act. The Election Commission has the power of superintendence over the conduct of election and can issue directions in the preparation of the electoral roll of course on justifiable grounds.

¶322

We also caution that the Election Commission shall interfere only in deserving cases and the object should be to complete the election process in a fair manner at the earliest. The fact that public funds are utilized which may go waste if

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election is unnecessarily derailed shall also be borne in mind.”

¶326

If there is any violation of the statutory provisions in

¶327

the preparation of electoral roll in the election to the Board of Directors of the Society in question, it is for the State Cooperative Election Commission to issue appropriate directions taking note of the law laid down in the decisions referred to supra. Those factual issues cannot be decided by this Court, in exercise of the writ jurisdiction under Article 226 of the Constitution of India.

¶328

Now what remains to be considered is as to the further course to be taken in the matter. The election to the Board of Directors of the Society was scheduled to be held on 30.12.2018, as the term of the elected committee is to expire on 11.01.2019. The interference in the process of election by the 1^st respondent Co-operative Arbitration Court was on 27.12.2018, when the Returning Officer has taken steps to conduct election, as notified in Ext.P1 notification. Though the petitioners are seeking an order to conduct election on 12.01.2019, the process of election, which was stalled in view of the interim order of the Co-operative

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Arbitration Court, cannot be directed to be conducted within a short span of time, since the Co-operative Election Commission and also the Returning Officer has to take further steps for the conduct of election. Therefore, the request made by the petitioners to conduct election to the Board of Directors of the Society on 12.01.2019 cannot be considered.

¶332

Section 33 of the Act deals with appointment of a new committee or administrator on failure to constitute committee, etc. As per sub-section (1) of Section 33 of the Act, where the term of office of a committee has expired and a new committee has not been constituted, or where a no-confidence motion is passed by the general body against the existing committee or where the existing committee resigns enbloc or where vacancies occur in the committee either by resignation or other wise and the number of remaining members cannot constitute the quorum for the meeting of the committee, or where the committee fails to hold its regular meeting consecutively for six months or where the Registrar is satisfied that a new committee cannot be constituted

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before the expiry of the term of office of the existing committee; or there is stalemate in the constitution or functions of the committee; that a new committee is prevented from entering upon office or a new committee fails to enter upon office, on the date on which the term of office of the existing committee expires, the Registrar may, either suo motu or on the application of any member of the society, after intimating the Circle Cooperative Union, appoint one administrator or an administrative committee consisting of not more than three individuals, one among them as convener, who need not be member of the society to manage the affairs of the society, for a period not exceeding six months as may be specified in the order, which period may, at the discretion of the Registrar and for reasons to be recorded in writing, be extended, from time to time, so, however, that the aggregate period shall not, in any case, exceed one year or till a new committee enters upon office, whichever is earlier.

¶336

The first proviso to sub-section (1) of Section 33 of the Act provides that, before making such order, the Registrar shall

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publish a notice on the notice board of the head office of the society, inviting objections to the making of the order within a period specified in the notice and consider such objections. The second proviso provides further that, it shall not be necessary to publish such notice in cases where the Registrar is satisfied that it is not reasonably practicable to do so. The third proviso provides also that, where a committee, administrator or administrators, as the case may be, is in office at the commencement of the Kerala Co-operative Societies (Amendment) Act, 1992, the Registrar may extend the term of such committee, administrator or administrators, as the case may be, for a further period not exceeding one year from the date of such commencement.

¶340

Therefore, the provisions under sub-section (1) of Section 33 of the Act envisage appointment of an administrator or an administrative committee consisting of not more than three individuals, one among them as convener, who need not be member of the society, to manage the affairs of the society, for a period not exceeding six months as may be specified in the order,

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which period may, at the discretion of the Registrar and for reasons to be recorded in writing, be extended, from time to time, so, however, that the aggregate period shall not, in any case, exceed one year or till a new committee enters upon office, whichever is earlier, where the term of office of a committee of the society has expired and a new committee has not been constituted. Under sub-section (1) of Section 33 of the Act discretion has been conferred on the Registrar to appoint an administrator or an administrative committee. A reading of the provisions under Section 33 would show that sub-section (1) of Section 33 of the Act gives wide discretion on the Registrar to appoint an Administrator or an Administrative Committee consisting of not more than three individuals to manage the affairs of the Society. The Registrar has to exercise such powers considering the fact situation of these cases.

¶344

Learned Senior Counsel for the petitioner in W.P. (C)No.61 of 2019 and also the learned counsel for the petitioners in W.P.(C)No.235 of 2019 would submit that since the term of the

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present Board of Directors will expire on 12.01.2019, the Joint Registrar may be directed to appoint a competent person as Administrator to manage the day-to-day affairs of the Society and to take necessary steps to ensure that the election to the Board of Directors is conducted within a short span of time.

¶348

The learned Senior Government Pleader would submit that the Joint Registrar shall take necessary steps to ensure that an Administrator is appointed to the Society on or before 12.01.2019. The said submission is recorded. It is made clear that the Administrator appointed pursuant to the order to be passed by the Joint Registrar shall not take any policy decision or enrol new members or make appointments and he shall only manage the day-to-day affairs of the Society.

¶349

It is for respondents 4, 6 and also 7^th respondent to ensure that the Administrator appointed to manage the day-today affairs of the Society takes necessary steps to conduct election to the Board of Directors of the Society, after complying with the statutory requirements, without any further delay. In

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case no interference is made by the State Co-operative Election Commission on the electoral roll, on any justifiable grounds and

¶353

with an object to complete the process of election in a fair manner, it is for the Administrator to pass a resolution regarding the date of polling and forward it to the State Co-operative Election Commission through proper channel within two weeks from the date of receipt of a certified copy of this judgment. Based on the resolution so taken by the Administrator, the State Co-operative Election Commission shall issue appropriate notification for the conduct of polling and declaration of result.

¶354

The writ petitions are disposed of as above.

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Sd/-

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ANIL K. NARENDRAN

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JUDGE

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yd/ami/10.1.19

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APPENDIX OF WP(C) 61/2019

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PETITIONERS' EXHIBITS:

¶363

EXHIBIT P1 TRUE COPY OF THE ORDER NO.E(1) 8844/2018/S.C.E.C. DATED 9.11.2018 WITH ELECTION NOTIFICATION ISSUED BY THE STATE CO-OPERATIVE ELECTION COMMISSION. EXHIBIT P2 TRUE COPY OF THE FINAL LIST OF CANDIDATES AS PUBLISHED BY THE RETURNING OFFICER DATED 19.12.2018. EXHIBIT P3 TRUE COPY OF THE ARBITRATION CASE NO.55 OF 2018 FILED BY RESPONDENTS 2 AND 3 BEFORE THE IST RESPONDENT DATED 27.12.2018. EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR STAY FILED IN ARC NO.55 OF 2018 FILED BY RESPONDENTS 2 AND 3 BEFORE THE IST RESPONDENT DATED 27.12.2018. EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 27.12.2018 IN I.A.NO.165 OF 2018 IN ARC NO. 55 OF 2018 PASSED BY THE IST RESPONDENT. EXHIBIT P6 TRUE COPY OF THE APPLICATION FORM DATED 14.9.2018 ALONG WITH THE ADHAR CARD OF SRI.JOHNY (JOBY C.I.) EXHIBIT P6(a) TRUE COPY OF THE LETTER DATED 7.1.2019 GIVEN BY SRI.JOBY C.I. TO THE GENERAL MANAGER.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R2(a)(i) TRUE COPY OF THE REQUEST DATED 23.12.2018 MADE BY PERSONS BEFORE THE ASSISTANT REGISTRAR (GENERAL)

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WP(C) 61/2019
EXHIBIT R2(a)(ii)	TRUE MADE REGIS	COPY BY TRAR	OF THE REQUEST DATED 23.12.2018 PERSONS BEFORE THE ASSISTANT (GENERAL)
EXHIBIT R2(a)(iii)	TRUE MADE REGIS	COPY BY TRAR	OF THE REQUEST DATED 23.12.2018 PERSONS BEFORE THE ASSISTANT (GENERAL)
EXHIBIT R2(a)(iv)	TRUE MADE REGIS	COPY BY TRAR	OF THE REQUEST DATED 24.12.2018 PERSONS BEFORE THE ASSISTANT (GENERAL)
EXHIBIT R2(a)(v)	TRUE MADE REGIS	COPY BY TRAR	OF THE REQUEST DATED 24.12.2018 PERSONS BEFORE THE ASSISTANT (GENERAL)
EXHIBIT R2(b)	TRUE	COPY	OF THE ENQUIRY REPORT DATED
	5.6.2 (GENE ACT.	018 RAL)	OF THE ASSISTANT REGISTRAR UNDER THE RIGHT TO INFORMATION

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TRUE COPY

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P.A. TO JUDGE

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APPENDIX OF WP(C) 235/2019

¶374

PETITIONERS' EXHIBITS:

¶375

EXHIBIT P1	TRUE COPY OF THE ELECTION NOTIFI DATED 9.11.2018.	CATION
EXHIBIT P2	TRUE COPY OF THE INTERIM ORDER 27.12.2018 IN I.A.NO.165/2018 ARC.55/2018 OF THE IST RESPONDENT.	DATED IN
EXHIBIT P2(a)	TRUE COPY OF THE CONSEQUENTIAL NO.E(1)8844/2018/S.C.E.C. DATED 2018 ISSUED BY THE 4TH RESPONDENT.	ORDER 29-12-
EXHIBIT P3	TRUE COPY OF THE COMMON JUDGMENT 17.12.2018 IN WPC NOS.40379/2 40447/2018.	DATED 018 &
EXHIBIT P4	TRUE COPY OF THE NO.CRB.1233/14/KDIS. DATED 18.8.20	ORDER 14.
EXHIBIT P5	TRUE COPY OF APPLICATION 25.10.2018.	DATED
EXHIBIT P6	TRUE COPY OF INTERIM ORDER 3.5.2018 IN WPC NO.17025/2018(C) O HONOURABLE COURT.	DATED F THIS
EXHIBIT P7	A TRUE COPY OF THE LIST OF CONT CANDIDATES.	ESTING
EXHIBIT P8	TRUE COPY OF ARC 55/2018 I.A.165/2018.	AND

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RESPONDENTS' EXHIBITS:NIL

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TRUE COPY

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P.A. TO JUDGE

V.Balaram v. the Co-Operative Arbitration Court (Northern)

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V.Balaram v. the Co-Operative Arbitration Court (Northern)

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