ANIKUMAR R.S (PUNNAVOOR ANIL) v. STATE OF KERALA AND OTHERS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 1ST DAY OF JANUARY 2013/11TH POUSHA 1934 WP(C).No. 31658 of 2012 (F) --------------------------- PETITIONER: ----------- ANIKUMAR R.S (PUNNAVOOR ANIL), AGED 36 YEARS, S/O.K.RAJAPPAN NAIR, CHEMMARYSHERRY KIZHAKUMKARAVEEDU (PRESENTLY RESIDING IN ANIL BHAVAN, PUNNAVOOR), ARUVIKARA, KUVALASHERRY P.O., THIRUVANANTHAPURAM. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: ------------ 1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY DEPARTMENT OF CO-OPERATION KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001. 2. KERALA STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM – 695 033 REPRESENTED BY ITS SECRETARY. 3. REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM – 695 001. 4. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), NEYYATTINKARA, THIRUVANANTHAPURAM – 695 001. 5. KANDALA SERVICE CO-OPERATIVE BANK LTD.NO.T197, KANDALA P.O, NEYYATTINKARA, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 6. RETURNING OFFICER, KANDALA SERVICE CO-OPERATIVE BANK LTD. NO.T197, KANDALA, THIRUVANANTHAPURAM – 695 512. WP(C).No. 31658 of 2012 (F) - 2 - 7. N.BHASURANGAN, PRESIDENT, KANDALA SERVICE CO-OPERATIVE BANK LTD. NO.T197, KANDALA, THIRUVANANTHAPURAM – 695 512. 8. AJITHA DEVI, RUGMINI BHYAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. 9. VIMAL RAJ LUKOSE, SAJAYA BHAVAN, THOONGAMPARA – 695 512, KANDALA P.O. 10. NESAN PONNYAN, SAJAYA BHAVAN, THOONGAMPARA, KANDALA P.O, PIN – 695 512. 11. CHRISTOPHER BHARGAVAN, SAJAYA BHAVAN, THOONGAMPARA, KANDALA P.O, PIN – 695 512. 12. SHOBANA KUMARI VIJAYAN, SAJAYA BHAVAN, THOONGAMPARA, KANDALA P.O, PIN – 695 512. 13. VIJAYAN KOCHAPPI NADAR, SAJAYA BHAVAN, THOONGAMPARA, KANDALA P.O, PIN – 695 512. 14. SATHYA NESAN MALLUNADAR, ODUKATHU VILAKATHUVEEDU, THOONGAMPARA, KANDALA P.O, PIN – 695 512. 15. ANTO JOSE SATHYA NESAN, SAJAYA BHAVAN, ERAYANKODU, THOONGAMPARA, KANDALA P.O, PIN – 695 512. 16. SANTHOSH VIJAYAN, SAJAYA BHAVAN, ERAYANKODU, THOONGAMPARA, KANDALA P.O, PIN – 695 512. 17. VIKRAMAN CHELLAKANNU, SAJAYA BHAVAN, ERAYANKODU, THOONGAMPARA, KANDALA P.O, PIN – 695 512. WP(C).No. 31658 of 2012 (F) - 3 - 18. MANJU VIJAYAN, SAJAYA BHAVAN, ERAYANKODU, THOONGAMPARA, KANDALA P.O, PIN – 695 512. 19. SCOT VINS VIKRAMAN SAJAYA BHAVAN, ERAYANKODU, THOONGAMPARA, KANDALA P.O, PIN – 695 512. 20. SULOCHANA VIKRAMAN, SAJAYA BHAVAN, ERAYANKODU, THOONGAMPARA, KANDALA P.O, PIN – 695 512. 21. SOUMYA VIJAYAN VIJAYAN, SAJAYA BHAVAN, ERAYANKODU, THOONGAMPARA, KANDALA P.O, PIN – 695 512. 22. SHAHJAHAN ABOOBECKER KUNJU, PALLINADA PUTHENVEEDU, ARUMALLOOR, KANDALA P.O, PIN – 695 512. 23. SULFIYA, PALLINADA PUTHENVEEDU, ARUMALLOOR, KANDALA P.O, PIN – 695 512. 24. SOMAN ACHARI, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. 25. SAHIDI DEVI, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. 26. DINESH BABU, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. 27. GOMATHI AMMA, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. 28. RATHEESH, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. WP(C).No. 31658 of 2012 (F) - 4 - 29. SOUMYA, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. 30. JALAJA CHANDRIKA, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. 31. GOPAKUMAR, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. 32. VEENA, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. 33. SUNITHA GIREESAN, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. 34. KRISHNAN NAIR, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. 35. SRIKALA, RUGMINI BHAVAN, KARINGAL, KANDALA P.O, PIN – 695 512. R BY SPECIAL GOVERNMENT PLEADER SRI D.SOMASUNDARAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31658 of 2012 (F) ## **A P P E N D I X** PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF BYELAW OF THE 5TH RESPONDENT. EXT.P2: TRUE COPY OF RELEVANT PORTION OF NEWS PAPER CONTAINING THE NOTIFICATION. EXT.P3: TRUE COPY OF VOTERS LIST. EXT.P4: TRUE COPY OF THE OBJECTION AGAINST THE DRAFT VOTERS LIST DATED 27.11.2012. EXT.P5: TRUE COPY OF THE REPRESENTATION DT.6.12.12. EXT.P6: TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 3RD RESPONDENT. /TRUE COPY/ P.A TO JUDGE **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) No.31658 of 2012-F ---------------------------------------------------Dated this the 1[st] January, 2013** ## **J U D G M E N T** This Writ Petition is filed by a member of the 5[th] respondent bank challenging the voters' list on the basis of which an election is scheduled to be conducted on 02.01.2013, that is tomorrow. The petitioner has sought for the issue of a writ of certiorari quashing Ext.P3 voters' list and a further writ of mandamus commanding respondents 1 to 5 to prepare a fresh voters' list containing the names of eligible persons alone and to conduct an election to the Managing Committee of the 5[th] respondent, only thereafter. According to the petitioner, Ext.P3 voters' list contains the names of a number of ineligible persons. There are persons who do not reside within the area of operation of the 5[th] respondent bank. There are also persons who do not own any property within the area of operation of the said bank. It is alleged that many persons have been included in the voters' list, 2 **W.P(c) No.31658 of 2012-F** at the instance of the 7[th] respondent who has been continuing as the President of the 5[th] respondent bank for the past 20 years. The learned counsel for the petitioner places reliance on the address mentioned in Ext.P3 voters' list to point out that a number of persons are seen to be residents of the same address, justifying a conclusion that they are all ineligible persons. It is also contended that the voters' list does not contain the age of the voters nor does it indicate whether a voter is a male or a female. According to the learned counsel for the petitioner, Rule 35(3)(d) of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as `the Rules' for short), should be understood as necessitating the inclusion of such details also in a voters' list, without which the provision would serve no purpose. For the above reason, it is contended that this Court should include such details also within the requirements of the said provision, by a process of interpretation. 2. The learned counsel places reliance on the decision of the Apex Court in **Hameedia Hardware Stores v. B.Mohan Lal Sowcar** [(1988) 2 SCC 513]. It is contended that there has been large scale enrollment of ineligible members to the society. Persons about whom information is available have been arrayed **W.P(c) No.31658 of 2012-F** 3 as respondents 8 to 35 in this Writ Petition. The petitioner also alleges that there has been manipulation of identity cards as well as the Form 6A and 6B Registers. A further contention is that there are a number of discrepancies also in the said Registers. In view of the above shortcomings in the voters' list, it is contended that the interference of this Court is necessary in the matter to stop the election that is scheduled to be conducted on 02.01.2013. Any such election can be permitted to be conducted only after the preparation of a proper voters' list and rectification of the discrepancies pointed out. 3. This Writ Petition comes up before me for admission. The learned Special Government Pleader Sri D.Somasundaram opposes the contentions of the learned counsel for the petitioner. It is pointed out that the election in the present case is being conducted by the State Co-operative Election Commission. The provision that is applicable to the conduct of an election by the State Co-operative Election Commission is Rule 35A of the Rules, it is contended. Sub Rule 4 of Rule 35A stipulates the details that a voters' list published by the Election Commission should contain. They are the admission number, name of the member, name of father or husband and the address of such member. The **W.P(c) No.31658 of 2012-F** 4 learned Special Government Pleader points out that all the necessary details as stipulated by Sub Rule 4 of Rule 35A are available in Ext.P3 voters' list. Though the petitioner had submitted Ext.P4 objections to the draft voters' list published in accordance with the election schedule, it is pointed out that the said objections do not contain any details of the individual voters' against whom objections were raised. In the absence of any details, the Electoral Officer was not in a position to consider the objections and therefore, the voters' list was finalised. All the procedures necessary for conducting the polling on 02.01.2013 are complete. Therefore, it is contended that there is absolutely no justification in interfering with the process of election at this stage. For the above reasons, it is contended that this Writ Petition is only to be dismissed. 4. I have heard Advocate Sri V.Philip Mathews as well as the learned Special Government Pleader Sri D.Somasundaram at length. I have also considered the rival contentions anxiously. 5. It is to be noticed that the election schedule was published on 26.11.2012 as per Ext.P2. The draft voters' list was published on 27.11.2012. It is true that the petitioner has submitted his objections on the said date itself. The objections of **W.P(c) No.31658 of 2012-F** 5 the petitioner is Ext.P4. A perusal of Ext.P4 shows that it only contains certain general allegations without any specific allegation against any individual member. The learned Special Government Pleader has placed reliance on the dictum laid down by a Division Bench of this Court in **Vijayakumar v. Joint Registrar** [1996(1) KLT 285], where it has been held that where the objections are general or vague in nature or appear to be prima facie baseless, Returning Officer is not bound to make any enquiry. The Returning Officer has the power to make an enquiry into the objections if they are definite and specific and capable of being verified with reference to the materials that are available before the said officer. In the present case, as already noticed, Ext.P4 does not contain any specifications of the allegations raised by the petitioner regarding inclusion of ineligible members. Therefore, it cannot be said that, in view of the scant materials available, the officer has committed any illegality in finalising the voters' list. It is true that the petitioner has impleaded respondents 8 to 35 in this Writ Petition alleging that they are persons who are ineligible to be members of the 5[th] respondent or to vote in the election. It is not possible for this Court exercising jurisdiction under Article 226 of the **W.P(c) No.31658 of 2012-F** 6 Constitution to verify the disputed facts that are sought to be determined. As rightly pointed out by the learned Special Government Pleader, such disputed questions of fact are best left to be determined in a properly framed election petition, if the petitioner is aggrieved, after the election is over. 6. It is settled law that once the election process has been set in motion, unless there are compelling circumstances, this Court would be reluctant to interfere with and stop the electoral process. The petitioner has an effective remedy under Section 69 of the Kerala Co-operative Societies Act, 1969, to challenge the election if the same is vitiated by any of the circumstances pointed out by him. The same applies to the objections regarding the alleged manipulation of Form 6A and 6B Registers as well as identity cards. I am not satisfied that it is necessary to include additional details like the age of all voters or the gender of a voter, being stipulations not contemplated by the relevant rules. The said contentions are left open. For the above reasons, I am not satisfied that the election that is scheduled to be held on 02.01.2013 requires to be interfered with. 7 **W.P(c) No.31658 of 2012-F** This Writ Petition is accordingly dismissed. Needless to observe that the dismissal of this Writ Petition would not preclude the petitioner from pursuing the representations that he has submitted before respondents 2 and 3, which are evidenced herein by Exts.P6 and P7. _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/