Abdul Rahim and Shaji v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941** ## **WP(C).No.22242 OF 2019(E)** ## **PETITIONERS:** - **1 ABDUL RAHIM AGED 50 YEARS S/O. IBRAHIM KANNU, ANSA COTTAGE, MECHIRA KILLI, KOLLODE P.O., KATTAKADA, TRIVANDURM DISTRICT 695 571.** - **2 SHAJI, AGED 45 YEARS S/O. HUSSANARU PILLAI, VILAYIL VEEDU, KILLI, KOLLODE P.O., 65571, KATTAKADA, TRIVANDRUM DISTRICT 695 571.** **BY ADVS. SRI.M.RAMASWAMY PILLAI SRI.K.RAJESH KANNAN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, CO-OPERATIVE DEPARTMENT, GOVT. SECRETARIAT, M.G. ROAD, TRIVANDRUM 695 001.** - **2 THE REGISTRAR OF CO-OPERATIVE SOCIETY, TRIVANDRUM 695 001.** - **3 STATE ELECTION COMMISSION FOR CO-OPERATIVE SOCIETIES, CO-OPERATIVE TOWER, TRIVANDRUM 695 001.** - **4 KATTAKADA MILK MARKETING (KSHEERA VIVASYA) CO-OPERATIVE SOCIETY LTD. NO. 3869, KATTAKADA, TRIVANDRUM DISTRICT, REPRESENTED BY ITS PRESENT PRESIDENT, 695571.** - **5 THE SECRETARY, KATTAKADA MILK MARKETING CO-OPERATIVE SOCIETY LTD., KATTAKADA P.O., 695 571** - **6 MILK MARKETING OFFICER, VELLANADU BLOCK, TRIVANDRUM 695 553.** **WP(C).No.22242 OF 2019 2** **7 DAIRY FARM INSTRUCTOR, VELLANADU BLOCK, TRIVANDRUM 695 553.** **R3 BY ADV. SRI.R.LAKSHMI NARAYAN** **SMT.C.S.SHEEJA, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.22242 OF 2019 3** ## **JUDGMENT** The petitioners are stated to be members of the Kattakada Milk Marketing (Ksheera Vivasya) Co-operative Society Ltd. (hereinafter referred to as 'the Society' for short) and they impugn Ext.P1 Election Notification published by the 3[rd] respondent State Cooperative Election Commission (hereinafter referred to as 'the Election Commission' for short), notifying the elections to the Managing Committee of the Society, on the specific allegation that it was published by the Election Commission much beyond the period permitted under the Kerala Co-operative Societies Act and Rules (hereinafter referred to as 'the KCS Act and Rules' for short). 2. The petitioners say that even though Ext.P1 bears the date 16/07/2019, it was published only on 30/07/2019 in the news papers, which is even beyond the date shown therein for publication of the preliminary voters list and therefore, that the said notification is vitiated, because it robs the ## **WP(C).No.22242 OF 2019 4** members of their opportunity to effectively complain against the preliminary voters list and they consequently, pray that the election be not allowed to be conduced based on it. 3. In answer to the afore, the learned Standing Counsel for the Election CommissionShri.R.Lakshmi Narayan, submits that a statement has been filed on record wherein the following have been clearly stated:- 2. It is submitted that the Electoral officer had published Election notification in the society on 26-7-2019 itself. On the next day itself, the same was given for publication in two dailies which have wide circulation in the area of operation of the society. The notification was published on 28-7-2019 in Kerala Koumudy, and on 30-7-2019 in Veekshanam Daily. 3. The preliminary voters list was published by the Electoral Officer on 27.07.2019 as per the schedule. As no objections were received on the preliminary Voters list, the same was finalized and a final voters list was published on 3.8 2019. The final voters list was published on notice board and in collection centers of the society. 4. The notification published in Kerala Koumudy daily is produced here with and marked as Ext-R3(a). The report dated 14.8.2019 given by the Electoral Officer to this respondent, disclosing the above facts, is produced here with and marked as Ext-R3(b). The photocopy of the notice regarding the publication of preliminary voters list published by the Electoral Officer in the notice board of society on 27.8.2019 is produced by here with and marked as Ext-R3(c). The photocopy of **WP(C).No.22242 OF 2019 5** notice regarding the publication of final voters list is produced by here with and marked as Ext-R3(d). 5. It is submitted that, as per the version given by the petitioners, they came to know about the Election notification on 30.7.2019. Even in that case, they had time up to 2.8.2019 to submit their objections to the Electoral Officer. But instead, it is seen that the petitioners submitted a complaint/petition directly to the Election Commission on 5.8.2019, two days after the final voters list was published. 6. It is humbly submitted that, since the election process has already started and few days alone are left for the polling, even if the petitioner has any grievance regarding election, statutory remedy under section 69 of the Kerala Co-operative Societies Act is available to the petitioner. Therefore the writ petition has no merit and this Hon'ble Court may be pleased to dismissed the same. 4. He says that this Court may not intervene at this stage since all the processes for election are now complete, the polling being scheduled on 27/08/2019 and that the elections be allowed to be completed without any interdiction. 5. I have considered the afore submissions and I must say that I find some force in the submissions made on behalf of the petitioners by their learned counselShri.Rajesh Kannan. This is because, as per the ## **WP(C).No.22242 OF 2019 6** provisions of Rule 35(A)(3) of the KCS Rules, the Election Commission is obligated to publish the Election Notification in two vernacular dailies having wide circulation in the area. The purpose of this is obviously to enable all the members of the Society to know the schedule of the elections and to participate in it meaningfully. 6. The Election Commission, no doubt, is also aware of this, because they have dated Ext.P1 as 16/07/2019. However, there is absolutely no explanation, even in their statement on record, as to why they took nearly 11 days to have the same published in newspapers, particularly when they were fully aware that the date of publication of the preliminary voters list, as per the election schedule, was 27/07/2019. There is also no contest from their side that the notification was given for publication in the news papers only on 27/07/2019, which was also the date on which the preliminary voters list had to be published. Certainly, therefore, the ## **WP(C).No.22242 OF 2019 7** petitioners are justified in having approached this Court; and they justifiably contend that the violation of mandatory provisions of the KCS Act and Rules should entail cancellation of all processes pursuant to Ext.P1. 7. That said, taking note of the fact that the polling is scheduled to be conducted on 27/08/2019, and being guided by the judgment of the Hon'ble Supreme Court in _**Shri.Sant Sadguru v. State of Maharashtra and Others**_ _[2001(8) SCC 509],_ I do not deem it appropriate to interdict the processes at this stage, especially because I am unable to see, at least _prima facie,_ any particular prejudice having been caused to the petitioners personally, because concededly, they had time till 02/08/2019 to object to the preliminary voters list. However, I am of the view that these issues require a close scrutiny at the hands of the Electoral Officer or such other competent Authority of the Election Commission, who should then decide whether the scheduled polling, on 27/08/2019, must be allowed to go ## **WP(C).No.22242 OF 2019 8** on or whether any further arrangement require to be done. 8. When I observe as above, I am also fully cognizant of the submissions of Shri.Rajesh Kannan-learned counsel for the petitioner, that on account of the delay in publication of Ext.P1 Notification his clients could not bring it to the notice of the Electoral Officer that large number of members have been illegally excluded from the preliminary voters list and that, consequently, the elections to be now conducted would only be a farce. In the afore circumstances and in the above perspective, I order this writ petition and direct the petitioners to mark appearance in the office of the Election Commission at 11.00 am, on 24/08/2019; on which day, they will be heard and all their objections including those relating to the preliminary voters list, final voters list and the publication of Ext.P1 Notification - will be considered and an appropriate proceedings will ## **WP(C).No.22242 OF 2019 9** be issued by it not later than in the evening of that day. Needless to say, I leave full liberty to the petitioners to either invoke their alternative remedies or to approach this Court in future, if it is so necessary, after the afore exercise is completed. ## **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** MC/22..8.19 **WP(C).No.22242 OF 2019 10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **THE PHOTO COPY OF THE NOTIFICATION PUBLISHED IN VEEKSHNAM NEWSPAPER ON 30TH JULY 2019.** **EXHIBIT P2 THE PHOTOCOPY OF THE REPRESENTATION DATED 5/8/19 SUBMITTED BY THE FIRST PETITIONER BEFORE THE THIRD RESPONDENT.** **EXHIBIT P3** **THE PHOTO COPY OF THE REPRESENTATION DATED 5/8/2019 SUBMITTED BY ANOTHER SIX PERSONS OF SOCIETY MEMBERS BEFORE THE STATE COOPERATIVE ELECTION COMMISSION.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(A)** **THE PHOTOCOPY OF NOTIFICATION PUBLISHED IN KERALA KOUMUDY DAILY DATED 28.7.2019.** **EXHIBIT R3(B) THE PHOTOCOPY OF LETTER DATED 7.8.2019. EXHIBIT R3(C) THE PHOTOCOPY OF NOTICE DATED 27.7.2019 EXHIBIT R3(D) THE PHOTOCOPY OF NOTICE DATED 3.8.2019** **MC** **(TRUE COPY) PA TO JUDGE**