A. Nazarudeen @ A. Abdul Nazar v. Registrar of Co-operative Societies, The Election Commissioner, The Assistant Registrar (General) (Electoral Officer), The Returning Officer, Kollurvila Service Co-operative Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 19TH DAY OF SEPTEMBER 2018 / 28TH BHADRA, 1940** ## **WP(C).No. 30332 of 2018** ## **PETITIONER:** ## **A. NAZARUDEEN @ A. ABDUL NAZAR AGED 62 YEARS** **MEMBERSHIP NO. 3090, KOLLURVILA SERVICE CO- OPERATIVE BANK, NEAR PALLIMUKKU, KOLLAM DIST. RESIDING AT KALLUMOOTTIL VEEDU, VADAKKEVILA POST, KOLLAM** **BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENTS:** - **1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM - 695001** - **2 THE ELECTION COMMISSIONER THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM 695 001** - **3 THE ASSISTANT REGISTRAR,(GENERAL) (ELECTORAL OFFICER) CO-OPERATIVE SOCIETIES, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOLLAM 691 013.** - **4 THE RETURNING OFFICER, KOLLAM UNIT INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, KOLLAM 691 013.** - **5 THE SECRETARY, KOLLURVILA SERVICE CO-OPERATIVE BANK, NEAR PALLIMUKKU,KOLLAM 691 021.** ## **OTHER PRESENT:** ## **R5 BY SRI.D.SOMASUNDARAM SMT C.S SHEEJA,SENIOR GOVERNMENT PLEADER.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.09.2018, ALONG WITH WP(C).29818/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.30332 of 2018** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is a Member of the 5[th] respondent Co-operative Bank, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding respondents 1 to 4 to implement paragraph 8 of Ext.P1 election notification dated 23.7.2018 issued by the 2[nd] respondent State Co-operative Election Commission, whereby election to the governing body of the 5[th] respondent Co-operative Bank is scheduled to be held on 23.9.2018. 2. On 14.9.2018 when this writ petition came up for admission, the learned Senior Government Pleader sought time to get instructions and accordingly the case was posted to 17.9.2018 for further consideration. 3. On 17.9.2018, the 5[th] respondent Bank entered appearance through counsel and the case was ## **W.P.(C)No.30332 of 2018** ## **:-3-:** ordered to be listed today along with W.P. (C)No.29818 of 2018. 4. Today, by a separate judgment, W.P. (C)No.29818 of 2018 filed by one Remanan challenging the order of the 4[th] respondent Returning Officer rejecting his nomination stands dismissed, without prejudice to his right to invoke the statutory remedy under Section 69 of the Kerala Co-operative Societies Act, 1969, if he is having any dispute in connection with the election to the governing body of the 5[th] respondent Bank. 5. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 4 and also the learned counsel for the 5[th] respondent Bank. 6. The apprehension of the petitioner in this writ petition is that, in the election scheduled to be held on 23.9.2018 to the governing body of the ## **W.P.(C)No.30332 of 2018** ## **:-4-:** 5[th] respondent Bank, the 4[th] respondent Returning Officer will not follow clause (8) of Ext.P1 notification, regarding identification of voters and any such action of the said respondent will be illegal. 7. In paragraph 5 of the writ petition, it is averred that when the petitioner met the 3[rd] respondent Electoral Officer and the 4[th] respondent Returning Officer recently, he was told by the said respondents that production of identity cards in terms of the aforesaid provision, will not be made mandatory, since the voters can easily be identified. In order to substantiate the aforesaid contention, no materials whatsoever have been produced along with the writ petition. In order to substantiate the said contention, the petitioner has produced, along with I.A.No.1 of 2018, Ext.P2 representation dated 12.9.2018, stated to have been ## **W.P.(C)No.30332 of 2018** ## **:-5-:** made before the 4[th] respondent Returning Officer and Ext.P3 Postal Acknowledgment dated 13.9.2018. In Ext.P2 representation dated 12.9.2018, the petitioner has no case that when he met the 3[rd] respondent Electoral Officer or the 4[th] respondent Returning Officer, he was told by the said respondents that production of identity cards in terms of clause (8) of Ext.P1 election notification will not be made mandatory. There is total lack of pleadings in the writ petition filed on 14.9.2018, to substantiate the said contention. 8. The learned Senior Government Pleader on instructions from the 4[th] respondent would submit that the averment in the writ petition that when the petitioner met him recently, he was told that production of identity cards in terms of clause (8) of Ext.P1 election notification will not be made mandatory, is absolutely without any basis, which ## **W.P.(C)No.30332 of 2018** ## **:-6-:** is evident from the fact that the petitioner has no such case in Ext.P2 representation. The learned Senior Government Pleader would also submit that the 4[th] respondent Returning Officer is yet to receive Ext.P2 representation. ## 9. In **Bharat Singh v. State of Haryana (AIR** **1988 SC 2181)** , the Apex Court held that, 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. The Apex Court held further that there is a distinction between a ## **W.P.(C)No.30332 of 2018** **:-7-:** pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter-affidavit. 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. 10. Having considered the pleadings and materials on record, in the light of the law laid down by the Apex Court in the decision referred to supra, conclusion is irresistible that the petitioner has not made out even a prima facie case warranting interference of this Court, in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India. In the absence of any specific case in the writ petition, with supporting materials, the petitioner is not entitle for the ## **W.P.(C)No.30332 of 2018** **:-8-:** reliefs sought for. In the result, this writ petition fails and the same is accordingly dismissed. Sd/- **ANIL K.NARENDRAN JUDGE** ami/19.9.18 ## **APPENDIX** **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 23/7/2018 ISSUED BY THE STATE COOPERATIVE ELECTION COMMISSION EXHIBIT P2 TRUE COPY OF THE COMMUNICATION ADDRESSED TO THE RETURNING OFFICER DATED 12.9.2018. EXHIBIT P3 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT DATED 13.9.2018.** **//TRUE COPY//** **P.A.TO JUDGE** **ami/**