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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4001 OF 2018

[@ SPECIAL LEAVE PETITION (C) NOS. 15765 OF 2017] REJI THOMAS & ORS.                         Appellant(s)

                               VERSUS THE STATE OF KERALA & ORS.    Respondent(s)

WITH CIVIL APPEAL NO. 4002-4006 OF 2018

[@ SPECIAL LEAVE PETITION (C) NOS. 15768-15772 OF 2017] WITH

SPECIAL LEAVE PETITION (C) NOS.16136-16140 OF 2017 WITH

SPECIAL LEAVE PETITION (C) NOS. 25720 OF 2017 WITH

SPECIAL LEAVE PETITION (C) NOS. 30308-30312 OF 2017 WITH

SPECIAL LEAVE PETITION (C) NOS. 9858 OF 2018

J U D G M E N T

KURIAN, J. SLP (C) No. 15765 OF 2017 and SLP (C) Nos.15768-15772 OF 2017 1. Leave granted. 2. Whether the High Court, in exercise of its power under Article 226 of the Constitution of India could

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have extended the statutory period, within which an Election  Petition  under  the  Kerala  Cooperative Societies Act, 1969 (in short, “the Act”) should have been entertained, is the legal question arising for consideration in these appeals.

3. The  dispute  pertains  to  the  election  to  the Thiruvalla  East  Cooperative  Bank  Ltd.  (hereinafter referred  to  as,  “Cooperative  Society”).   Writ Petition (C) No. 34019 of 2016 and other connected matters filed before the High Court of Kerala pertain to  the  election  to  the  Cooperative  Society.   The prayers in the writ petition read as follows :-

“i)  Issue  a  writ  of  certiorari,  or  other appropriate writ, order or direction to quash Ext.  P3  election  notification,  Ext.  P4 preliminary  voters  list,  and  Ext.  P9  final voters list.

ii) To direct the respondents to prepare an electoral role including all the members of the  society  and  publish  and  conduct  the election with that voters list.   

iii) To  declare  that  the  exclusion  of members from the voters list for the ensuring election  prepared  applying  Section  16A  and 19A  of  the  Cooperative  Societies  Act  is inoperative and that in view of the exemption order issued by the Government by G. O. (P) No.  100/16  dated  15/10/2016  all  members  of

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the  society  are  entitled  to  exercise  their franchise in the election.   

iv) Issue  a  writ  of  mandamus  or  other appropriate  writ,  order  or  direction directing  the  respondents  to  prepare  the voters  list  including  all  members  of  the society  and  re-notify  the  election  in accordance with law.”

4. The  learned  Single  Judge  referred  all  the matters to a Larger Bench by order dated 27.10.2016. The Division Bench, as per order dated 01.11.2016 passed  an  interim  order.   The  order  reads  as follows :-

“1.  We  would  not  have  normally  interfered with  the  election  process  to  the  managing committee of the Thiruvalla East Co-operative Bank  Limited  but  for  the  startling developments unfolded. It is not in dispute that the election calender has been published pursuant  to  the  judgment  in  W.A.  No. 1869/2016  as  per  which  the  polling  has  to take place on 05/11/2016. But what baffles us is  the  fact  that  the  final  voters  list contains  only  28  members  as  against  611 members found in the preliminary voters list published.  The  reason  for  such  drastic depletion in the number of members eligible to vote has been disclosed in the statement filed by the electoral officer as follows:

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"Out of more than 70,000 members of the society in the 57th General Body Meeting, only 94 members attended the meeting.  In  58th  General  Body Meeting,  121  members  attended  the meeting. It is recorded that in the 59th General Body Meeting, 749 members attended  the  meeting.  A  perusal  of the  attendance  in  three  consecutive General Body Meetings would show that only 33 members have attended all the three  consecutive  General  Body Meetings  and  out  of  the  said  33 members, only 28 members availed the service  of  the  Bank  for  the  two consecutive years."  

Thus the reason for exclusion of 611-28 = 583 members is that they have not attended three general  body  meetings  of  the  society consecutively  in  order  to  be  eligible  for figuring as a voter.

2. There is no hesitation for us to hold that  the  statutory  provision  contained  in Section 16A(1)(b) of the Kerala Co-operative Societies Act has been misconstrued by the electoral officer. The same reads as follows:

"16A.  Ensuring  participation  of members  in  the  management  of societies :-

(1) no member shall be eligible to continue  to  be  a  member  of  a co-operative  society  if  he,  (a)  is not using the services of the society

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for  two  consecutive  years  or  using the services below the minimum level as may be prescribed in the rules or the bye-laws;

(b)  has  not  attended  three consecutive general meetings of the society and such absence has not been condoned  by  the  members  in  the general meeting."

Thus only members who have not attended at least  any  one  of  the  three  consecutive general  body  meetings  of  the  society  are alone ineligible to continue as a member of the Co-operative Bank. The exclusion of 583 members from the preliminary voters list in the final voters list on the basis of the misinterpretation of the statutory provision is prima facie illegal.

3.  An  Annual  General  Body  Meeting  has obviously to be convened for the purpose of election  in  the  prescribed  manner  as  per Section 29(1)(b) of the Kerala Co-operative Societies Act. But the quorum for a General Meeting  in  order  to  transact  business therein  is  50  as  per  Clause  22  of  the bye-laws  of  the  Co-operative  Bank  in question.  No election can be conducted even if  all  the  28  members  are  present  in  the General Meeting when the number falls short of  50  as  the  quorum  specified  in  the bye-laws.  The General Meeting convened to conduct an election in compliance with the judgment  in  W.A.  No.  1869/2016  would  be reduced into a mockery in the circumstances.

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This is one way of entrusting the management of a Co-operative Bank to an Administrator under the Kerala Co-operative Societies Act in the guise of an election. We are also of the prima facie opinion that the Government Order  dated  15/10/2016  granting  exemption under Section 101 of the Act does not apply to this Co-operative Bank.

4. We are not for a moment holding that all these 611 members found in the preliminary voters list are eligible to vote as the same is open to question in an election dispute, whether a register in Form 32 on the basis of which the list of 611 members has been prepared has to be gone into under Section 69 of the Kerala Co-operative Societies Act. Similarly the infraction if any of Section 16A  and  19A  of  the  Kerala  Co-operative Societies  Act  are  also  matters  to  be adjudicated as and when a statutory dispute is  raised.  The  cut-off  date  for implementation of the amended provision of Rule  18A  of  the  Kerala  Co-operative Societies  Rules  has  been  clarified  to  be 26/11/2016  in  SLP  No.  27046/2016.  The judgment  in  Pradeep  U.R.  and  Another  v. Kerala  State  Co-operative  Election Commission and Others  2016 (4) KHC 93 (FB) stands  modified  as  above.   The implementation of the amended provisions of the  Kerala  Co-operative  Societies  Act  and the Rules does not therefore depend on the birth of a 'Co-operative year'.

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Interest  of  justice  would  be  met  by directing the election to go on as scheduled permitting all the 611 members aforesaid to cast  their  vote  in  the  election  to  the managing committee. The same would however be  provisional  and  subject  to  these  writ petitions and also the invocation of Section 69  of  the  Kerala  Co-operative  Societies Act.”

5. The  above  order  was  challenged  before  this Court.  The appeals were disposed of by a common Judgment dated 05.12.2016.  The Judgment took note of the fact that the writ petitions were pending before the High Court and it was only appropriate that the writ petitions be disposed of on merits.  It was specifically made clear that “all contentions raised by the writ petitioners are left open before the High

Court.”   It  was  also  noted  in  the  Judgment  that elections have been conducted on 05.11.2016 and 13 members have been elected to the Managing Committee and,  therefore,  this  Court  permitted  the  said Committee  to  continue  in  office  subject  to  final orders passed in the writ petitions.  It was also made  clear  that  the  Committee  shall  not  take  any policy decisions.  Paragraphs 5 and 6 of the Judgment dated 05.12.2016 read as follows :-

“5. Though several contentions are taken by the parties, we do not propose to go into

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the  merits  of  the  matter  since  the  writ petitions are pending before the High Court. Since,  by  the  time  this  Court  passed  the order dated 11.11.2016, a Managing Committee had already been elected on 5.11.2016, we dispose  of  these  appeals  permitting  the Committee elected on 5.11.2016 to manage the affairs of the Society for the time being, on a provisional basis with the rider that the said Committee shall only perform the day-to-day work of the Co-operative Society and shall not take any policy decision, till the writ petitions are disposed of.   

6. All  contentions  raised  by  the  writ petitioners are left open before the High Court.”

6. The writ petitions were heard by the High Court leading  to  the  impugned  Judgment  dated  02.03.2017. The Division Bench was of the view that the disputes raised in the writ petitions were fit to be tried as an election dispute under Section 69 of the Act and hence,  declined  to  consider  the  contentions  on merits.   The  operative  portion  of  the  impugned Judgment reads as follows :-

“11. We therefore relegate the petitioners to the alternate statutory remedy available under Section 69(3) of the Act wherein all the factual and legal issues could be gone into.   It  is  pointed  out  that  a  dispute

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arising  in  connection  with  the  election should be raised within one month from the date of election as per the Act.  But we notice  that  the  election  to  the  Managing Committee of the bank was held subject to the  result  of  the  writ  petitions  only  by virtue of the interim order.  Therefore it is  clarified  that  any  dispute  raised  in connection with the election to the Managing Committee of the bank within one month from today shall be dealt with as per law. What exactly  should  be the arrangement in the meanwhile is  the  further question since more than three months have elapsed since the conduct of election.  The  Supreme Court has  permitted  the  Managing  Committee  to perform the day-to-day work on provisional basis  without  taking  any  policy  decision. We  make  it  clear  that  the  status  quo  as ordered by the Supreme Court in its judgment dated 05.12.2016 shall hold the field till the culmination of the dispute.”

Contextually, it is also significant to note that even in the interim order dated 01.11.2016, the Court had taken the view that certain disputes regarding the eligibility, infractions, if any, of Sections 16A and 19A of the Act etc. are all subject matter of the Statutory dispute under Section 69 of the Act.     7. It may be noted that the election had already been conducted on 05.11.2016.  Under Section 69(3) of

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the Act, “No dispute arising in connection with the election of the Board of Management or an officer of

the society shall be entertained by the Cooperative

Arbitration  Court unless it is referred to it within

one month from the date of the election.”

8. The  Division  Bench,  however,  was  of  the  view that since the writ petitioners had approached the High Court prior to the election and since by way of an interim order, the election was permitted to be conducted  as  scheduled  making  it  subject  to  the result of the writ petitions and also Section 69 of the Act, it is only appropriate that while relegating the  parties  to  the  Arbitration  Court  trying  the election dispute, a further period of thirty days be granted.   

9. Whether,  in  view  of  the  statutory  period prescribed under Section 69(3), the High Court could have extended the period, is the question.   

10. Article 243ZK of the Constitution of India, which provides  for  Election  of  Members  to  the  Managing Committee  of  a  Cooperative  Society,  reads  as follows :-

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“(1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so  as  to  ensure  that  the  newly  elected members  of  the  board  assume  office immediately on the expiry of the office of members of the outgoing board. (2)  The  superintendence,  direction  and control  of  the  preparation  of  electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law:

Provided  that  the  Legislature  of  a  State may, by law, provide for the procedure and guidelines  for  the  conduct  of  such elections.”

11. Section 69 of the Act is the mechanism provided by  the  State  Legislature  as  contemplated  under Article  243  ZK  (2)  of  the  Constitution  of  India. 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 this Court under Article 32, 136 or 142  of  the  Constitution  can  extend  the  period  in election  matters.   In  the  matter  of  limitation  in election  cases,  the  Court  has  to  adopt  strict

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interpretation  of  the  provisions.    This  Court  in Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin & Ors. reported  in  (2015)  12  SCC  169,  though  in  a different context, has held at paragraph 33 that “In the  absence  of  any  provision  made  in  the  Act  for

condoning the delay in filing the election petition,

the Chief Judge had no power to condone the delay in

filing  the  election  petition  beyond  the  period  of

limitation prescribed in law”.

12. In Union of India & Anr. vs. Kirloskar Pneumatic Co. Ltd. reported in (1996) 4 SCC 453, at paragraph 10, this Court has held as under :-

“.......The  power  conferred  by  Articles 226/227 is designed to effectuate the law, to enforce the rule of law and to ensure that the several authorities and organs of the State act in accordance with law.  It cannot  be  invoked  for  directing  the authorities  to  act  contrary  to  law.   In particular,  the  Customs  authorities,  who are the creature of the Customs Act, cannot be directed to ignore or act contrary to Section  27,  whether  before  or  after amendment.  Maybe the High Court or a civil court is not bound by the said provisions but the authorities under the Act are.  Nor can there be any question of the High Court clothing  the  authorities  with  its  power under Article 226 or the power of a civil

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court.   No  such  delegation  or  conferment can ever be conceived.”

13. It has also to be noted that while passing the interim  order  dated  01.11.2016,  the  High  Court  had specifically noted that the same was subject to the writ petitions and also Section 69 of the Act.   

14. In the above circumstances, we are of the view that the matters need to be considered afresh by the High Court since the Court could not have relegated the  parties  to  the  alternative  remedy  under  the Statute  by  enlarging  the  time  for  preferring  the election dispute.  Accordingly, the impugned Judgment to that extent is set aside.  The writ petitions are remitted to the High Court for fresh consideration. It will be open to the parties to raise all available contentions before the High Court.  We request the High  Court  to  dispose  of  the  writ  petitions expeditiously.

15. We make it clear that till the writ petitions are disposed  of  by  the  High  Court,  the  interim arrangement made by this Court in the Judgment dated 05.12.2016 will continue.

These appeals are disposed of as above.  

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SLP  (C)  Nos.    16136-16140  OF  2017,  25720  OF  2017, 30308-30312 OF 2017 and   9858 OF 2018

In  view  of  the  Judgment  passed  above,  these Special Leave Petitions are also disposed of.   

.......................J.               [ KURIAN JOSEPH ]  

.......................J.               [ MOHAN M. SHANTANAGOUDAR ]

.......................J.               [ NAVIN SINHA ]  

New Delhi; April 19, 2018.

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ITEM NO.8               COURT NO.5               SECTION XI-A                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Petition for Special Leave to Appeal (C)  No. 15765 of 2017 REJI THOMAS  & ORS.                                Appellant(s)                                 VERSUS THE STATE OF KERALA AND ORS.   Respondent(s) WITH SLP (C) Nos. 15768-15772 of 2017(XI-A) SLP(C) No. 16136-16140/2017 (XI-A) (FOR ADMISSION and I.R. and IA No.6174/2018-EXEMPTION FROM FILING  O.T.) SLP(C) No. 25720/2017 (XI-A) SLP(C) No. 30308-30312/2017 (XI-A) (FOR ADMISSION and I.R. and IA No.108373/2017-CONDONATION OF DELAY  IN FILING SLP) SLP(C) No. 9858/2018 (XI-A)   Date : 19-04-2018 These matters were called on for hearing today. CORAM :  HON'BLE MR. JUSTICE KURIAN JOSEPH          HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR          HON'BLE MR. JUSTICE NAVIN SINHA For Appellant(s) Mr. Kapil Sibal, Sr. Adv.  

Mr. George Poonthottam, Adv.  Mr. Atul Shankar Vinod, Adv.  Mr. Dileep Pillai, Adv.  Mr. Ajay K. Jain, Adv. Mr. Vikas Pathak, Adv.  Mr. M. P. Vinod, AOR Mr. P. V. Surendra Nath, Sr. Adv.  Ms. Resmitha R. Chandran, Adv.  Ms. Lekha Sudhakaran, Adv.  Mr. V. Giri, Sr. Adv.  Mr. G. Prakash, AOR Mr. Jishnu M. L., Adv.  Ms. Priyanka Prakash, Adv.  Ms. Beena Prakash, Adv.  Mr. Vijay Shankar V. L., Adv. Mr. Vijaya Mohan V., Adv.   Mr. V. K. Biju, AOR

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Mr. Renjith Thampan, AAG, Kerala  Mr. C. K. Sasi, Adv.  Ms. Nayantara Roy, Adv.  Mr. Manukrishnan G., Adv.  

                   Mr. Himinder Lal, AOR                                          

   UPON hearing the counsel the Court made the following                              O R D E R SLP (C) NOS. 15765 OF 2017 and SLP (C) NOS. 15768-15772 OF 2017  

Leave granted.  The appeals are disposed of in terms of the signed reportable

Judgment.   Pending Interlocutory Applications, if any, stand disposed of.

  SLP (C) Nos.    16136-16140 OF 2017, 25720 OF 2017, 30308-30312 OF 2017 and   9858 OF 2018

In view of the Judgment passed in Civil Appeal No. 4001 Of 2018 [@ SLP (C) NO. 15765 OF 2017] and Civil Appeal Nos. 4002-4006 of 2018 [@ SLP (C) NOs. 15768-15772 OF 2017], these Special Leave Petitions are disposed of in terms of the same reportable Judgment.

Pending Interlocutory Applications, if any, stand disposed of.

(JAYANT KUMAR ARORA)                              (RENU DIWAN)    COURT MASTER                                ASSISTANT REGISTRAR

(Signed reportable Judgment is placed on the file)