Co-operative Arbitration Court Has Exclusive Jurisdiction To Adjudicate Election Disputes Of Co-operative Society: Kerala HC Dismisses Writ Appeal

Justice Anil K. Narendran and Justice Sophy Thomas observed that a writ court cannot exercise its writ jurisdiction to appoint an Advocate Commissioner to oversee the process of polling and counting in election to the Board of Management of Society. The Court observed thus:

“When the provisions under the Kerala Co-operative Societies Act deal with the procedure for adjudication of any dispute arising in connection with the election of the board of management or any officer of a Co-operative Society, exclusively by the Co- operative Arbitration Court constituted under Section 70A of the Act, and a person who indulges in or adopts any corrupt practices, before, during or after the election, including a person who commits any criminal offence against the Electoral Officer or the Returning Officer or other office bearers and employees of a Society, has to be proceeded against for an offence punishable under Section 94 of the Act with imprisonment which may extend up to six months or with fine which may extend up to one thousand rupees or with both, this Court, in the exercise of writ jurisdiction under Article 226 of the Constitution of India, cannot appoint an Advocate Commissioner to oversee the entire proceedings of the polling and counting in an election of the board of management or any officer of the Society.”

The Court noted that as per 70 A of the Kerala Co-operative Societies Act, any dispute arising in connection with the election of any office of the society will be referred to Co-operative Arbitration Court and Courts shall not have the jurisdiction to entertain such disputes.

The appellant-Cooperative Society was conducting elections for appointing the Managing Committee of the Society. They approached the High Court under Article 226 of the Constitution for appointing an Advocate Observer for overseeing the entire proceedings of the polling and counting scheduled on October 15, 2023. Other reliefs in the writ petition included direction for police protection, direction to Returning Officer for verifying identity cards, permission for video recording polling and counting.

The single judge by disposed of the writ petition by directing the Station House Officer to provide adequate police protection for conducting the elections smoothly. The Court also directed that the Returning Officer shall arrange videography, on request from the Society. However, the Court declined to appoint an Advocate Observer. Against declining the relief sought for appointment of an Advocate Observer, the appellant Society has approached the High Court by way of a writ appeal.

The counsel for the appellant Society argued that Advocate Observers were appointed for overseeing the election processes at other Co-operative banks.

On the other hand, the Counsel for the State Co-operative Election Commission contended that the writ petition was disposed as the appellant Society failed to make out a case for the appointment of an Advocate Observer to oversee the process of election.

The Court stated that in a plaint or written statement only facts were pleaded whereas in a writ petition or counter affidavit, not just facts, but also evidence in proof of such facts were also to be pleaded and annexed to it. It relied upon the Apex Court decision in Bharat Singh v. State of Haryana (1988) and observed that there was a distinction between the pleadings made in a plaint and written statement filed under the Civil Procedure Code as compared to the pleadings in a writ petition or a counter affidavit.

“when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point.

“While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.”

The Court relied upon the Apex Court decision in M/s. Larsen and Toubro Ltd. v. State of Gujarat (1998) and stated that a good pleading will contain all the details and particulars, if there was non-compliance of any statutory requirement. It also referred to the landmark decision in Narmada Bachao Andolan v. State of Madhya Pradesh (2011) to state that a party has to plead its case by substantiating his averments in the pleadings with sufficient evidence. Relying upon Narmada Bachao Andolan (supra), the Court noted that it has no obligation to entertain pleas or grant reliefs based on incomplete pleadings.

The Court found that, in the writ petition, the appellant society has not made out a case for the appointment of an Advocate Observer to oversee the process of the election. It noted that the writ petition lacked sufficient averments to prove the necessity of appointing an Advocate Observer for overseeing the election process.

The Court further noted that matters relating to election of the board of management or any officer of a Co-operative Society was exclusively dealt by the Co- operative Arbitration Court constituted under Section 70A of the Kerala Co-operative Societies Act. The Court thus noted that the appellant society cannot invoke the jurisdiction of the writ court under Article 226 of the Constitution for appointment of an Advocate Commissioner to oversee the entire proceedings of polling and counting.

On the above observations, the Court dismissed the writ appeal.

Counsel for the respondents: Senior Counsel C M Nazar and K M Rashmi

Citation: 2023 LiveLaw (Ker) 561

Case title: Malanad Service Co-Operative Bank Ltd. v. Station House Officer & Ors. 

Case number: W.A.NO.1729 OF 2023

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