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Judgment
V. Bhaskaran Nambiar, J.—Alathur Co-operative Marketing Society has conducted elections to the managing committee of the Society. Under the bye-laws of the Society, four members of the committee have to be elected from the delegates representing primary member societies and three members have to be elected from among individual members. The petitioners are delegates of four societies, who were entitled to vote at the election. This fact is admitted. They submitted their nominations. It is stated that they were rejected on an absolutely wrong interpretation of Rule 45(1) of the Kerala Co-operative Societies Rules, which reads as follows:
Disqualification of a member of a Society to be a Delegate of another Society - (1) No members shall be appointed to represent a society in any other society and vote if, on the date thirty days prior to the date fixed for a meeting for the conduct of any election relating to the society.
(a) he is in default to the society of which he is a member in respect of any loan or loans taken by him for such period as may be specified in its bye-laws or in any case for a period exceeding three months; or
(b) he is a person against whom any decision, award or order referred to in sub-section (3) of Section 70 has been obtained; or
(c) he is a member of the other society in his individual capacity.
(2) ***
It is said that their nominations were rejected on the ground that they were not elected as delegates within thirty days of the election and it is contended that Rule 45(1) is not attracted where the petitioners were not subject to any of the disqualifications mentioned in Rule 45 (1). Counsel for the contesting respondents contend that Rule 45(1) has to be read along with rule 35 of the Co-operative Societies Rules and the rejection of the nomination papers was proper.
After admitting the O. P., in the stay application an order was passed that "the announcement of the result of the election with regard to ''A'' class members (delegates from societies) will be stayed until further orders from this Court." The result of the election of the individual members has been published.
The learned counsel for the petitioner states that in view of the patent illegality committed in the rejection of the nomination of the petitioners, this Court can interfere under Art. 226 of the Constitution notwithstanding the remedy available u/s 69 of the Kerala Co-operative Societies Act. He states, relying on a decision in Devassy v. Asst. Registrar of Co-operative Societies (1976 KLT 40), that under Rule 35(3)(b) of the Kerala Co-operative Societies Rules, the Committee has to prepare a list of the members qualified to vote at election and where the members are really the societies, the list need show only the names of the societies and not the names of the delegates of those societies. If so, when the petitioners societies were already members in the voter list, the delegates of these societies were entitled to submit their nomination. The disqualification under Rule 45(1) not being attracted, nomination papers of the petitioners were validly submitted and the rejection was plainly illegal.
The question for consideration is whether this Court should bypass the remedies available u/s 69 of the Kerala Co-operative Societies Act and invoke its jurisdiction under Art. 226 of the Constitution to interfere in election matters even where fundamental error is committed in the rejection of the nomination papers.
It has to be understood that there is no common law right or any general right for election to the committee of a Co-operative Society. It is a right conferred by statute, the Co-operative Societies Act, or the bye-laws of the Societies. The remedy, therefore, for challenging the election has to be found in the provisions of the Act itself. If so, the discretionary remedy cannot be invoked under Art. 226 of the Constitution. This seems to be the principle stated in several decisions cited before me, some of which I shall refer here. In Nanhoo Mal and Others Vs. Hira Mal and Others, , where the election to the office of the President of a Municipal Board was challenged. The Supreme Court observed thus:
It follows that the right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities Act and it must be subject to the limitations imposed by it. Therefore, the election to the office of the President could be challenged only according to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in no other way. The Act provides only for one remedy that remedy being an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage.
Their Lordships followed the classical statement of law made by Willes, J. in Kolverhampton New Water Works Co. v. Hawkesford (1859) 6 CBNS 336) in the following passage:
There are three classes of cases in which a liability may be established founded upon statute..... But there is a third class, viz, where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.....the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.
The same view is expressed in a later decision of the Supreme Court in Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, . There are two decisions of this Court one, unreported, in O.P. No. 2028 of 1976-C, decision of Mr. Justice Gopalan Nambiyar (as his Lordship then was) and Mr. Justice Balagangadharan Nair, where their Lordships held thus:
Petitioner''s counsel contended that the existence of an alternative remedy is not inflexibly a bar to entertaining this writ petition, and that the same should not now be held against him, this writ petition having been admitted on 31-3-1976 and having remained on the rolls of this Court till now. We see no merit in this objection. The writ petition was filed in this Court within about two days of the holding of the election. There are sufficient pronouncements of this Court that Article 226 is not the appropriate remedy to challenge elections to a Co-operative Society. The matter was decided as early as in 1965 by Mathew, J. of this Court, as he then was, in Velu Pillai v. Registrar of Co-operative Societies (1965 KLT 447). The decision was carried up in W.A. No. 105 of 1965 and the decision was confirmed by one of us (myself) in Unnikrishna Kurup v. Ramunni Nair and others (1967 KLT 934).
To the same effect is the purport of the judgment in Narayanan Nambiar v. Dy. Registrar (1973 KLT 213), where Justice Govindan Nair, as he then was, and Sadasivan, J. held that all disputes in connection with the election can be raised only after the election is over.
The statutory object also seems to be the same as is evident from the Explanation and Section 69(2) which reads:
Dispute to be referred to Registrar.
(1) ............
(a) ............
(b) ............
(c) ............
(d) ............
(e) ............
(f) ............
(g) ............
(h)............
(2) For the purposes of sub-section (1), the following shall also be deemed to be disputes, namely:-
(a) a claim by the society for any debt or demand due to it from a member or the nominee, heirs or legal representatives of a deceased member, whether such debt or demand be admitted or not;
(b) a claim by a surety against the principal debtor where the society has recovered from the surety any amount in respect of any debt or demand due to it from the principal debtor, whether such debt or demand is admitted or not;
(c) any dispute arising in connection with the election of the Board of Management or any officer of the society.
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.
(3).................
(4)..................
Thus the petitioners have an effective and alternative remedy available where they can plead facts and raise all contentions in the presence of contesting parties and secure a decision in the election petition itself. I am bound by the decision of the Supreme Court and those of the Division Bench of this Court and therefore hold that this is not a fit case where the petitioners should be allowed to resort to the remedy under Article 226. However, the petitioners'' counsel relies on two decisions of this Court to support his stand that where there is a flagrant violation of Rules relating to elections, this Court can and should interfere under Art. 226 of the Constitution. He refers to a decision in Devassy v. Asst. Registrar of Co-operative Societies (1976 KLT 40), where Chandrasekhara Menon, J. held that proper electoral roll is a fundamental factor before the election is actually held and if the complaint is that no such roll has been prepared in accordance with the Rules, this court can certainly step in even before the election is actually held and prevent the election being held on the imperfect electoral rolls exercising its jurisdiction under Art. 226 of the Constitution. After laying down this law, the learned Judge, in that case, refused to interfere in that matter.
In the decision in Mavelikkara Co-operative Housing Society Ltd. v. Alleppey District Co-operative Bank (1974 KLT 783), George Vadakkel, J. held that a violation of Rule 35(1) of the Rules which was fundamental in character which affected the basis of the election was sufficient to attract the writ jurisdiction of this Court.
Learned counsel also relied on the decision of the Supreme Court in Bar Council of Delhi and Others Vs. Surjeet Singh and Others, in which the Supreme Court held that where the electoral roll was prepared on the basis of a rule which was found to be void and ultra vires, the alternative remedy of election petition need not be pursued.
In the three cases cited by the counsel for the petitioners, it can be seen that where there is no electoral roll, or it is tainted with patent illegality, and the defect goes to the root of the jurisdiction to conduct election, the courts have held that, in those very limited cases, interference under Art. 226 was possible. But in a case of this nature where there is no challenge to the validity of the electoral roll or the appointment of the Returning Officer, and it is confined only to the rejection of the nomination papers, certainly it is a matter where the parties should be directed to invoke the remedy available to them under the Act for, the right itself is a creature of the statute. The decisions cited by the counsel therefore do not run counter to the propositions laid down by the Supreme Court and the earlier and the later judgments of the two Division Bench rulings of this Court referred to earlier. In view of the urgency of this matter, all parties agreed that only the question of law would be pressed in this O.P. and therefore no counter need be filed. In the view that I have taken, I do not think that the claim of the petitioners can be allowed and the O.P. has only to be dismissed. I may observe that the petitioners may, if they are so advised, file an application u/s 69 of the Kerala Co-operative Societies Act challenging their rejection of nomination and the authority under the Act will dispose of the election petition within two months thereafter. The time limit is fixed as it is brought to my notice that the Election Petitions before the Registrar of Co-operative Societies are not usually disposed of with any sense of urgency and in some cases they are kept pending until the term of the managing committee itself expires. That contingency cannot happen in this case for, if the nomination papers of the petitioner were wrongly rejected, they have to be given an opportunity to stand for election to the committee of the society. Their rights, if any, cannot be defeated by long delay in the disposal of the election petition. The election petition, if filed, will be disposed of with the time limit fixed above. With this observation, this O.P. is dismissed. No costs.