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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

59

th

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 “I n

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)