REJI THOMAS & ORS.versusTHE STATE OF KERALA & ORS.

                          [2018] 6 S.C.R. 805                             805


                      REJI THOMAS & ORS.                                  A
                                  v.
                THE STATE OF KERALA & ORS.
                   (Civil Appeal No. 4001 of 2018)
                           APRIL 19, 2018                                 B
   [KURIAN JOSEPH, MOHAN M. SHANTANAGOUDAR
               AND NAVIN SINHA, JJ.]
        Kerala Cooperative Societies Act, 1969 – s. 69 – Whether the
High Court, in exercise of its power u/Art. 226 of the Constitution
                                                                          C
could extend the statutory period prescribed u/s.69(3), within which
an election petition under the Kerala Cooperative Societies Act,
1969 could be entertained – Held: s.69 of the Act is the mechanism
provided by the State Legislature as contemplated u/Art. 243 ZK (2)
of the Constitution of India – Once the mechanism provided under
the Statute provides for a time schedule for preferring an election       D
petition, then in the absence of a provision in the Statute for
enlarging the time under any given circumstances, no court, whether
the High Court u/Art. 226 or Supreme Court u/Arts. 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
                                                                          E
strict interpretation of the provisions – Matter remitted to High Court
for consideration afresh – Constitution of India – Art.243 ZK(2) –
Election Laws – Limitation – Interpretation of Statutes.
      Disposing of the matters, the Court
      HELD: The matters need to be considered afresh by the               F
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         G
High Court. [Para 14] [813-C-D]
      Smita Subhash Sawant v. Jagdeeshwari Jagdish Amin
      & Ors. (2015) 12 SCC 169 : [2015] 9 SCR 600 ; Union

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                                 805
806            SUPREME COURT REPORTS                          [2018] 6 S.C.R.


A           of India & Anr. v. Kirloskar Pneumatic Co. Ltd.
            (1996) 4 SCC 453 : [1996] 2 Suppl. SCR 326 – relied
            on.
                                Case Law Reference
            [2015] 9 SCR 600                   relied on         Para 11
B
            [1996] 2 Suppl. SCR 326           relied on          Para 12
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4001
      of 2018.
            From the Judgment and Order dated 02.03.2017 of the High Court
C     of Kerala at Ernakulam in WP (C) No. 34019 of 2016
                                         WITH
            Civil Appeal Nos. 4002-4006 of 2018
            Special Leave Petition (Civil) Nos. 16136-16140, 25720 &
D     30308-30312 of 2017 and Special Leave Petition (Civil) No. 9858 of
      2018.
             Kapil Sibal, P. V. Surendra Nath, V. Giri, Sr. Advs., Renjith
      Thampan, AAG, Kerala, George Poonthottam, Atul Shankar Vinod, Dileep
      Pillai, Ajay K. Jain, Vikas Pathak, M. P. Vinod, Ms. Resmitha
E     R. Chandran, Ms. Lekha Sudhakaran, G. Prakash, Jishnu M.L.,
      Ms. Priyanka Prakash, Ms. Beena Prakash, Vijay Shankar V. L.,
      Vijay Mohan V., V. K. Biju, C. K. Sasi, Ms. Nayantara Roy, Manukrishnan
      G., Hminder Lal Advs. for the Appellants.
            The Judgment of the Court was delivered by
F           KURIAN, J.
            SLP (C) No. 15765 of 2017 and SLP (C) Nos.15768-15772
            of 2017
            1. Leave granted.
G           2. Whether the High Court, in exercise of its power under Article
      226 of the Constitution of India could 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.
H
  REJI THOMAS & ORS. v. THE STATE OF KERALA & ORS.                         807
                    [KURIAN, J.]

      3. The dispute pertains to the election to the Thiruvalla East       A
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 :-
                                                                           B
      “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             C
      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         D
      by G. O. (P) No. 100/16 dated 15/10/2016 all members of 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          E
      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          F
      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/
                                                                           G
      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:                                                          H
808     SUPREME COURT REPORTS                         [2018] 6 S.C.R.


A        “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
B
         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
C     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
D     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
E        of a co-operative society if he, (a) is not using the services
         of the society 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
F        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-
G     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
H
REJI THOMAS & ORS. v. THE STATE OF KERALA & ORS.                     809
                  [KURIAN, J.]

  as per Section 29(1)(b) of the Kerala Co-operative Societies       A
  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
                                                                     B
  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.
  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     C
  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   D
  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      E
  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             F
  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’.
                                                                     G
  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.”                                       H
810            SUPREME COURT REPORTS                           [2018] 6 S.C.R.


A            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.”
B
      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.
C     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 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
D           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
E           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
F     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 :-

G           “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 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
H
  REJI THOMAS & ORS. v. THE STATE OF KERALA & ORS.                             811
                    [KURIAN, J.]

      Managing Committee of the bank was held subject to the result            A
      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
                                                                               B
      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              C
      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     D
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 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                 E
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             F
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    G
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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812            SUPREME COURT REPORTS                          [2018] 6 S.C.R.


A           “(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.
B
            (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:
C
            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
D     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
E     period in election matters. In the matter of limitation in election cases,
      the Court has to adopt strict 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
F     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
G     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
H
  REJI THOMAS & ORS. v. THE STATE OF KERALA & ORS.                              813
                    [KURIAN, J.]

      authorities to act contrary to law. In particular, the Customs            A
      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
                                                                                B
      Court clothing the authorities with its power under Article
      226 or the power of a civil 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.               C

       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       D
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               E
Judgment dated 05.12.2016 will continue.
      These appeals are disposed of as above.
      SLP (C) Nos. 16136-16140 of 2017, 25720 of 2017, 30308-30312
of 2017 and 9858 of 2018                                                        F
       In view of the Judgment passed above, these Special Leave
Petitions are also disposed of.


Ankit Gyan                                               Matters disposed of.
                                                                                G




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