Vattavila Vijayakumar vs The State Co-Operative Election Commission & Ors.

W.P(C)No.7029 of 2026 has been filed challenging Ext.P2 notification issued by the State Co-operative Election Commission to the Managing Committee of Kerala State Handloom Weavers (HANTEX) Co-operative Society Ltd. (hereinafter referred to as 'the HANTEX') on the ground that the notification is contrary to the provisions of sub-section (1CA) of Section 28 of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as 'the 1969 Act’). The petitioner has also raised a contention that the voters' list, which is on record as Ext.P7, has been published by the Electoral Officer, violating the provisions contained in Rule 35A (4) of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as 'the 1969 Rules’). The petitioner is thus before this Court to quash Exts.P2 and P7 and for a direction to the State Co-operative Election Commission to issue a fresh election notification in compliance with the mandate of Section 28 (1CA) of the 1969 Act and for a further direction to respondents 2 to 4 to publish the voters' list strictly following the mandate of Rule 35A (4) of the 1969 Rules. The petitioner has also sought a direction that certain societies included in the voters’ list be removed from the list.

W.P(C)No. 16968 of 2026 has been filed challenging the election notification on the ground that the notification is not in accordance with the provisions contained in Section 28 (1CA) of the 1969 Act.

Sri. P. N. Mohanan, the learned counsel appearing for the petitioner in WP(C)No.7029 of 2026, would refer to the provisions of Section 28 (1CA) and Section 28A of the 1969 Act and also to the provisions of Rule 35A (4) of the 1969 Rules to contend that Ext.P2 notification and Ext.P7 voters’ list are liable to be interfered with. It is submitted that Section 28 (1CA) of the 1969 Act was introduced by way of amendment inserted vide the Act No.9 of 2024 dated 07.06.2024. It is submitted that after the introduction of Section 28 (1CA) of the 1969 Act, every election notification must contain provisions for providing the reservations as contemplated by the provisions of Section 28 (1CA) of the 1969 Act. It is submitted that where the election notification itself is contrary to the law, the entire process of election commencing from the issuance of the notification should be declared illegal. It is submitted that no objection can be taken to the maintainability of this writ petition on the ground that the challenge must be raised in an election petition. The learned counsel referred to the decision of the Supreme Court in Devendra Kumar v. State of Uttaranchal and Others, (2013) 9 SCC 363, and in particular to paragraph 25 thereof, to contend that where the election notification itself is contrary to law, every proceeding following that notification is also bad in law. It is submitted that the said decision is also authority for the proposition that where the notification itself is not in accordance with the law, the Election Commission and any contesting respondent cannot be heard to contend that the proceedings before this Court should not be concluded on merits and the party should be relegated to the remedy of an election petition. It is submitted that the provisions of Section 28 (1CA) of the 1969 Act intend to provide representation for the persons below the age of 40 on the managing committee of each society and further provide that one such member below the age of 40 shall also be a woman. It is submitted that where the election notification seeks to defeat legislative mandate, the said notification must be set aside. The learned counsel has also handed over to me the notifications issued by the State Co-operative Election Commission for election to the Venkulam H.W.C (P & S) Society and the Kollode Handloom Polyester Weavers Co-operative Society issued on 17.02.2026 and 11.02.2026 respectively to contend that the Election Commission had clearly taken into consideration the mandate of Section 28 (1CA) of the 1969 Act while issuing the election notification in respect of the aforesaid societies. It is stated that, however, the Election Commission purposefully avoided the mandate of Section 28 (1CA) of the 1969 Act while issuing Ext.P2 notification, thereby vitiating the entire election process. The learned counsel also referred to the provisions of Rule 35A (4) of the 1969 Rules and submitted that the failure to indicate the details of the delegates as contemplated by the said Rule vitiates Ext.P7 voters’ list.

Sri. R. T. Pradeep, the learned counsel appearing for the petitioner in W.P(C)No. 16968 of 2026, supports the contentions taken on behalf of the petitioner in W.P(C)No. 7029 of 2026. The learned counsel referred to the provisions of Section 28 (1CA) and Section 28A of the 1969 Act at great length to drive home the point that any election notification ignoring the mandate of Section 28 (1CA) of the 1969 Act must be declared illegal and ought to be set aside. The learned counsel also contends that there cannot be any objection to the maintainability of the writ petition, as any election process starts with the issuance of the notification and where the notification is bad for any reason whatsoever, the entire process of election must also be declared bad. The learned counsel brought to my notice the judgment of the Supreme Court in Reji Thomas and Others v. State of Kerala and others, (2018) 16 SCC 778. It is submitted that the ratio of Reji Thomas (supra) is authority for the proposition that where the court had passed an interim order directing that all further proceedings will be subject to the result of the writ petition, an objection regarding the maintainability of the writ petition cannot be taken at a later stage. It is submitted that in the light of the law laid down in Reji Thomas (supra), the petitioner cannot be relegated to his remedy of filing an election petition.

Sri. C. M. Nazar, the learned counsel appearing for the State Co-operative Election Commission, Sri. Suman Chakravarthy, the learned counsel appearing for HANTEX, Sri. Harisankar N. Unni, the learned counsel appearing for the additional respondents 11, 15, 19, and 20 in W.P(C) No. 7029 of 2026, and Sri. P. C. Sasidharan, the learned counsel who appeared for the impleading petitioners in the connected W.P(C)No. 8487 of 2026 (which has been disposed of by separate judgment today), contends in the main that the provisions of Section 28 (1CA) of the 1969 Act do not apply to apex societies. It is submitted that an apex society is defined in Section 2(a) of the 1969 Act to be a society having the whole of the State as its area of operation and having as its members only other societies with similar objects and declared as such by the Registrar. Sri. P. C Sasidharan referred extensively to the provisions of Section 28 (1CA) of the 1969 Act to contend that the reservations as contemplated by the said provision cannot be applied in the matter of election to the managing committee of an apex society where the members are the primary societies and where the reservations based on age and the reservations based on gender cannot be applied. The learned counsel also referred to the provisions of Rule 44A of the 1969 Rules to contend that delegates of primary societies alone are entitled to vote and be elected as members of the committee of the apex society. It is submitted that if the provisions of Section 28 (1CA) of the 1969 Act are deemed to extend to apex societies, there is no mechanism to ensure that a person with the qualification prescribed in that provision will be nominated as the delegate of the primary society. In other words, it is contended that where the electorate for election to the managing committee of an apex society consists solely of delegates of primary societies and where the eligibility to become members of the managing committee of the apex society is also confined to such delegates, the question of providing any reservation as contemplated by the provisions of Section 28 (1CA) of the 1969 Act does not arise. The learned counsel also contends that the mandate of Rule 35A (4) of the 1969 Rules has been exempted for the preparation of the voters' list in respect of elections to the managing committee of apex societies by the Government in exercise of its power under Section 101 of the 1969 Act, read with Rule 181 of the 1969 Rules. Reference is made in this regard to the judgment of a learned Single judge of this Court in W.P(C)No.617 of 2015 [Ext.R4(a) produced along with the counter affidavit filed by the 4^th respondent in W.P(C)No. 7029 of 2026]. It is submitted that the judgment of this Court in W.P(C)No. 617 of 2015 refers to the notification issued by the Government on 22.01.2013, exempting central or apex societies from the purview of Rule 35A (4) of the 1969 Rules.

The learned counsel appearing for the petitioners in these writ petitions would submit in reply that the impugned notification itself contemplated reservation for women, and if the argument that the provisions of Section 28 (1CA) of the 1969 Act do not apply to apex societies is accepted, the question of providing reservation for women also does not arise.

Having heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondents, I am of the view that the petitioners have not made out a case for interference with the election notification (Ext.P2 in W.P(C)No. 7029 of 2026 and Ext.P1 in W.P(C)No. 16968 of 2026) on the ground that the notification is against the mandate of Section 28 (1CA) of the 1969 Act.

Section 28 (1CA) of the 1969 Act reads as follows:-

A reading of Section 28 (1CA) of the 1969 Act indicates that the reservation contained therein is for two categories:-

The definition of an apex society is contained in Section 2(a) of the 1969 Act which reads thus:

In Section 2(a) of the 1969 Act, the membership of an apex society is clearly reserved for the other societies, and no membership for individuals is contemplated. In fact, Section 2(a) of the 1969 Act uses the phrase ‘only other societies’. In such a situation, the question of applying the age or gender qualification in Section 28 (1CA) of the 1969 Act does not arise for consideration. The contention of the learned counsel appearing for the petitioners that the reservation as contemplated by the provisions of Section 28A of the 1969 Act has been provided in Ext.P2 notification does not lead me to conclude that the reservation in Section 28 (1CA) of the 1969 Act applies to apex societies. A reading of Section 28A of the 1969 Act indicates that where the reservation contemplated by sub-section (1) of Section 28A of the 1969 Act does not materialize for any reason, sub-section (3) of Section 28A of the 1969 Act reserves to the Government or to the Registrar of Co-operative Societies the right and authority to nominate any person from amongst the members of the Society to be a member of the Managing Committee. Such a provision is absent in the case of the reservations contemplated by Section 28 (1CA) of the 1969 Act.

There is yet another reason as to why the reservations provided in Section 28 (1CA) of the 1969 Act cannot apply to apex societies. Rule 44A of the 1969 Rules reads thus:-

Thus, the electorate in the election to the committee of an apex society consists exclusively of delegates of the primary societies that are members of the apex society, and these delegates alone can offer themselves as candidates for election to the committee of the apex society. The delegates must also be members of the committee of the primary society, except in a case where the primary society is under administratorship. In the absence of any provision that ensures that persons with the qualifications mentioned in Section 28 (1CA) of the 1969 Act will be nominated as delegates of primary societies, it would be impossible to ensure that the reservations in Section 28 (1CA) of the 1969 Act can be applied to committees of apex societies. My attention has not been drawn to any other Rule in the 1969 Rules or any provision in the 1969 Act dealing with qualifications/disqualifications of delegates to apex societies, which would ensure that the reservations in Section 28 (1CA) of the 1969 Act could be achieved.

The contention of the learned counsel appearing for the petitioners that a reservation for women has been provided in the Election notification in question, and therefore the reservations in Section 28 (1CA) of the 1969 Act can be applied to apex societies, must be rejected. As already noted, such a reservation is on account of the application of Section 28A of the 1969 Act. That provision through Section 28A (3) of the 1969 Act expressly reserves to the Government or the Registrar the authority to nominate in case such a reservation is not achievable for any reason. Such a provision is absent in Section 28 (1CA) of the 1969 Act, though the provisions of Section 28 (1CA) of the 1969 Act refer to the provisions of Section 28A of the 1969 Act, the said reference is only for the purpose of indicating that the reservation for women contemplated by Section 28 (1CA) of the 1969 Act will be counted against the three seats reserved for women in Section 28A.

Coming to the contention of the learned counsel for the petitioner in W.P(C)No. 7029 of 2026 that there has been a violation of Rule 35A (4) of the 1969 Rules in the preparation of the voters’ list produced as Ext.P7 in that writ petition, I must hold that where the voters’ list is prepared with reference to the members and in a situation where the members are primary societies, the question of complying with the provisions of Rule 35A (4) of the 1969 Rules in the case of an apex society does not arise. Though the notification dated 22.01.2013 exempting central or apex societies from the purview of Rule 35A (4) of the 1969 Rules has not been placed for my consideration, the judgment of this Court in W.P(C)No.617 of 2015 indicates that such a notification had been issued exempting the central or apex societies from the purview of Rule 35A (4) of the 1969 Rules. Therefore, the contention based on Rule 35A (4) of the 1969 Rules also cannot be sustained.

For all these reasons, these writ petitions will stand dismissed.

At this stage, Sri. P. N. Mohanan, the learned counsel appearing for the petitioner in W.P(C)No.7029 of 2026, would contend that there are some discrepancies between the tabulation sheet prepared by the Returning Officer at the time of counting and the results now produced before this Court, which have been perused by this Court. As rightly pointed out by the learned counsel appearing for the respondents, this is not a matter within the scope of the present writ petition, and even if it were, this Court would be justified in relegating such issues to be adjudicated in a duly constituted election petition.

The records produced by the Returning Officer in a sealed cover as directed by this Court, shall be returned to the Returning Officer by the Registry.

Exhibit P1 TRUE COPY OF THE ORDER DATED 13.01.2025 OF THE GOVERNMENT

Exhibit P2 TRUE COPY OF THE ELECTION NOTIFICATION DATED 10.02.2026 ISSUED BY THE ELECTION COMMISSION

Exhibit P3 TRUE COPY OF THE PRELIMINARY VOTERS LIST PUBLISHED BY THE SECOND RESPONDENT ON 12.02.2026

Exhibit P4 TRUE COPY OF THE OBJECTION DATED 14.02.2026 SUBMITTED BY THE PETITIONER

Exhibit P5 TRUE COPY OF THE JUDGMENT OF VELLOOR SCB V. STATE OF KERALA REPORTED IN 2015 (1) KLT 38

Exhibit P6 TRUE COPY OF THE CIRCULAR NO.2/2025 DATED 07.05.2025 ISSUED BY THE ELECTION COMMISSION

Exhibit P7 TRUE COPY OF THE FINAL VOTERS LIST

Exhibit P8 TRUE COPY OF THE MINUTES OF THE MEETING OF THE GENERAL BODY

Exhibit P9 TRUE COPY OF THE DETAILS FURNISHED BY THE FOURTH RESPONDENT REGARDING THE NUMBER AS 366 WHO SUBMITTED AUTHORIZATION

Exhibit P10 TRUE COPY OF THE RELEVANT LIST OF DELEGATES FROM WHOSE AUTHORIZATION RECEIVED

Exhibit P11 TRUE COPY OF THE COMPLAINT DATED 12.03.2026 OF THE PETITIONER BEFORE THE RETURNING OFFICER

Exhibit P12 TRUE COPY OF THE LETTER DATED 12.03.2026 SUBMITTED BY THE PETITIONER BEFORE THE RETURNING OFFICER

Exhibit P13 TRUE COPY OF THE JUDGMENT DATED 12.02.2025 IN W.A.NO.299/2025

Exhibit P14 TRUE COPY OF THE NOTICE DATED 21.02.2026 OF THE FOURTH RESPONDENT TO THE MEMBER SOCIETIES

Exhibit P15 TRUE COPY OF THE OBJECTION DATED 17.02.2026 OF THE KALLUNAD HANDLOOM WEAVERS’ CO-OPERATIVE SOCIETY

Exhibit-R4(a) A TRUE COPY OF THE JUDGMENT DATED 08.01.2015 IN WP(C) NO.617/2015 OF THIS HON’BLE COURT

Exhibit-R4(b) A TRUE COPY OF THE DECISION NO.35 DATED 29.12.2020

Exhibit-R4(c) A TRUE COPY OF THE DECISION NO.8 DATED 25.06.2021 CONSTITUTING A SUB-COMMITTEE TO RECONSIDER THE EARLIER DISQUALIFICATION

Exhibit-R4(d) A TRUE COPY OF THE ORDER DATED 12.02.2024 BY THE REGISTRAR OF HANDLOOM CO-OPERATIVE SOCIETIES

Exhibit-R4(e) A TRUE COPY OF THE GOVERNMENT ORDER NO.SO/30/25/ID DATED 13.01.2025

Exhibit-R4(f) A TRUE COPY OF THE DECISION NO.15 DATED 11.01.2022

Exhibit P1 TRUE COPY OF ELECTION NOTIFICATION NO.E(2) 952/2026/S.C.E.C. DATED 10.2.2026 FOR THE CONDUCT OF ELECTION TO THE BOARD OF DIRECTORS OF 3RD RESPONDENT BY THE 4TH RESPONDENT