Assanmanu P. v. Kerala State Co-operative Chief Election Commissioner, Ramanattukara Rural Housing Co-operative Society Limited & others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937 WP(C).No. 2297 of 2016 (J) ------------------------------------ PETITIONER : - ---------------------ASSANMANU P., AGED 66 YEARS, S/O.AVARANKUTTY, PANDIKASALA, RAMANATTUKARA, KOZHIKODE DISTRICT - 673 633. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SRI.G.RENJITH SMT.ASHA BABU SMT.R.S.ASWINI SANKAR SMT.S.PARVATHI SRI.ARUNBABY STEPHEN RESPONDENTS : - -------------------------- 1. THE KERALA STATE CO-OPERATIVE CHIEF ELECTION COMMISSIONER, THIRUVANANTHAPURAM - 695 001. 2. THE RAMANATTUKARA RURAL HOUSING CO-OPERATIVE SOCIETY LIMITED NO.D.2300, P.O.RAMANATTUKARA, KOZHIKODE - 673 633, REPRESENTED BY ITS SECRETARY. 3. THE ELECTORAL OFFICER FOR ELECTIONS TO THE RAMANATTUKARA RURAL HOUSING CO-OPERATIVE SOCIETYLIMITED NO.D.2300, P.O.RAMANATTUKARA, KOZHIKODE - 673 633 (THE ASST. REGISTRAR OF CO-OPERATIVE SOCIETIES, KOZHIKODE). 4. THE RETURNING OFFICER FOR THE ELECTIONS TO THE RAMANATTUKARA RURAL HOUSING CO-OPERATIVE SOCIETY LIMITED NO.D.2300, P.O.RAMANATTUKARA, KOZHIKODE - 673 633, (THE UNIT INSPECTOR OF CO-OPERATIVE SOCIETIES, FAROKH UNIT). 5. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOZHIKODE - 673 633. R1 BY SPL. GOVERNMENT PLEADER SRI. D. SOMASUNDARAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2297 of 2016 (J) ------------------------------------ ## **APPENDIX** PETITIONER'S EXHIBITS : - ------------------------------------- EXHIBIT P1 : TRUE COPY OF THE ORDER NO. E(1)4620/2015/SCEC DATED 15.12.2015 ISSUED BY R1 ALONG WITH ENGLISH TRANSLATION. EXHIBIT P2 : TRUE COPY OF THE ORDER NO. E(1)4620/2015/SCEC DATED 15.12.2015 APPOINTING RESPONDENTS 3 & 4 AS ELECTORAL OFFICER AND RETURNING OFFICER RESPECTIVELY ALONG WITH ENGLISH TRANSLATION. EXHIBIT P3 : TRUE COPY OF THE ORDER NO. E(1)4620/2015/SCEC DATED 22.12.2015 ISSUED BY R1 ALONG WITH ENGLISH TRANSLATION. EXHIBIT P4 : TRUE COPY OF THE AMENDED BYELAWS FORWARDED TO THE 5TH RESPONDENT BY THE 2ND RESPONDENT ALONG WITH COVERING LETTER DATED 28.12.2015 ALONG WITH ENGLISH TRANSLATION. ## RESPONDENTS' EXHIBITS : - NIL. --------------------------------------- // TRUE COPY // P.A. TO JUDGE DMR/- **C.R.** ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) No. 2297 of 2016** ---------------------------------------- Dated this the 28[th] day of January, 2016 ## JUDGMENT The petitioner, a member of the second respondent Society, assails the postponement of elections to the Society as had been originally notified by the Kerala State Co-operative Election Commission, the first respondent. 2. The facts in brief are that with the incumbent managing committee’s term coming to an end by 31.01.2016, the first respondent, based on the resolution passed by the Society, on 15.12.2015 issued Exhibit P1 notification fixing 31.01.2016 as the date of polling. In the course of time, the first respondent, however, through Exhibit P3 notification dated 22.12.2015 withdrew the initial Exhibit P1 notification. The reason assigned for recalling Exhibit P1 election notification was that the Society initially did not propose to hold elections on a ward basis despite the statutory mandate to the said effect under Section 28 of the Kerala Co-operative Societies Act (for short the 'Act'). 3. As can be gathered from the rival submissions and the record, in due course, the second respondent Society amended W.P.(c) No. 2297 of 2016 2 its bye-laws and forwarded them to the Assistant Registrar seeking their registration as a pre-condition for proceeding further to hold elections on the ward basis. 4. At this juncture, the petitioner apprehends that under the guise of dividing the Society on ward basis and also having the bye-laws registered, the authorities are bent on appointing an administrative committee drawing its members from the erstwhile managing committee; it is with a view to manipulating the membership pattern which already stands finalized through the final voters list. Thus, seeking election based on Exhibit P1 notification at the earliest—without any alteration to the final voters list, however—the petitioner has approached this Court. 5. Sri. K. Ramakumar, the learned Senior Counsel, has strenuously contended that through Exhibit P1 the first respondent has already initiated the election process; now, with the amendment of the bye-laws, it should proceed further and hold elections either by 31.01.2016, the date originally fixed, or any other date in the proximity—but essentially based on the same notification. W.P.(c) No. 2297 of 2016 3 6. In support of his submission that for whatever reason once an election has been postponed, it shall be resumed from the stage it has been deferred, especially based on the same election notification, the learned Senior Counsel has placed reliance on **V.S. Achuthanandan v. P.J. Francis and another[1]** and **Haridas v. Alleppy Urban Co-operative Bank Ltd[2]** . 7. The learned Senior Counsel further, placing reliance on **Madhavan Namboodiri v. Kammaran,[3]** has contended that without initiating the process of election afresh, the Managing Committee has authority and jurisdiction to fix a new date for the election in terms of Rules 26 and 35(3) of the Kerala Co-operative Societies Rules ('the Rules'). 8. Summing up his submissions, the learned Senior Counsel has singularly contended that the respondent Society shall have the election to the managing committee based on Exhibit P1 notification and essentially based on the voters list that has already been finalized, only by, if necessary, re-fixing the actual date of polling. In other words, the administrative committee or the administrator that is likely to be appointed 1 AIR 1999 SC 2044 2 1991 (2) KLT 310 3 1992 (2) KLT 567 W.P.(c) No. 2297 of 2016 4 should not abuse the process by enrolling new members, which according to the learned Senior Counsel is impermissible. 9. Sri. D. Somasundaram, the learned Special Government Pleader, on the other hand, has submitted that the second respondent Society initially passed a resolution and decided to hold elections, but without dividing its area on a ward basis. According to him, as can be seen from the second proviso to Section 28 of the Act, a Society cannot have election from 01.01.2016 without having the Society divided into wards. 10. Placing reliance on **Mohanachandran Nair v. State Co-operative Election Commission,[4]** the learned Special Government Pleader has also submitted that the first respondent has got ample powers either to postpone the election or to recall the very election notification for the reasons justifiable. 11. The learned Special Government Pleader, having laid specific emphasis on Rule 35A, has submitted that adjourning the election is different from recalling the very election notification, in which eventuality it cannot be said that the 4 2013 (3) KLT 506 W.P.(c) No. 2297 of 2016 5 process has been temporarily adjourned in terms of Rule 35A. 12. The learned Special Government Pleader has submitted that the writ petition has essentially been filed based on an unfounded apprehension that the Administrator or the Administrative Committee to be appointed will abuse the process and admit new members. Further, he has contended that to have any date fixed to hold the election shortly; it is incumbent that Exhibit P4 amendment is required to be registered by the Joint Registrar. For registering the bye-laws, as a precondition, the Joint Registrar is required to consult the Circle Co-operative Union and the Financing Banks in terms of Section 12 of the Act. 13. Summing up his submissions, the learned Special Government Pleader has submitted that the question of the Administrative Committee or the Administrator, as the case may be, admitting new members given the present statutory scheme does not arise; at this juncture, according to him, fixing any date peremptorily for holding the election may also lead to administrative difficulties. He has eventually contended that the writ petition be dismissed as it is premature, based on an apprehension. W.P.(c) No. 2297 of 2016 6 14. Head the learned counsel for the petitioner and the learned Special Government Pleader for the respondents, apart from perusing the record. 15. Indeed, Exhibit P3 is the notification through which the first respondent has withdrawn Exhibit P1 notification issued initially fixing the date of election as 15.12.2015. From Exhibit P3, it is evident that the first respondent has recalled the appointment of the electoral officer and the returning officer as well. As can be seen, it is very evident that Section 28 which underwent an amendment through Act 8 of 2013, with effect from 14.02.2013, statutorily mandates that the elections be held on a ward basis to the societies mentioned in the second proviso to the said provision. Indeed, the second respondent, Housing Co-operative Society, is one of those societies which are required under the said provision to have its members divided on a ward basis. 16. Understandably, the second respondent Society initially passed a resolution and sought election to its managing committee before the term of the incumbent managing committee could come to an end. Having issued Exhibit P1 notification, the first respondent commission, W.P.(c) No. 2297 of 2016 7 perhaps, realized later that it was not feasible to hold the election, especially beyond 31.12.2015 without having the Society's members divided on a ward basis. Under those circumstances, it has issued Exhibit P3 recalling Ext.P1. 17. Indeed, the learned Senior Counsel has laid specific emphasis on the fact that either the Society or the Commission, as the case may be, has got the necessary statutory wherewithal to resume the process where it has been stopped and hold elections on the basis of the same notification. I am afraid, on a closer scrutiny of the issue, it emerges to be incompatible with the statutory scheme. In elaboration, I may observe that Sub-clause (v) of Clause (e) and Sub-clause (x) of Clause (n) of Rule 35A (6) contain ample provisions to postpone the elections under certain circumstances, for instance, of law and order problem. 18. It is trite to observe that adjourning the process of election is entirely different from abandoning the very process. As could be seen, through Exhibit P3 notification, the Commission has removed the substratum of the election: Exhibit P1 notification. Thus, it is not the question of adjournment, but that of abandonment of the process for W.P.(c) No. 2297 of 2016 8 whatever justifiable reason. Under those circumstances, Rule 35A, in my considered view, has no application. 19. In **V.S. Achuthanandan** _(supra)_ the Apex Court, quoting with approval its earlier judicial interpretation of the term ‘Election’ in **Shankar Nanasaheb Karpe v. Returning Officer, Kolaba,[5]** held that the expression 'election' bears a wider meaning than the very limited restricted meaning of the result of an election or the counting of votes. Their Lordships have also held that nomination of candidates, scrutinizing of nominations, and decisions as to whether a nomination paper is valid or not, are all part and parcel of an election. In other words, 'Election' is not merely the ultimate decision or the ultimate result; it is inclusive of every stage from the time the notification is issued till the result is declared—and even perhaps, if there is an election petition, till the decision of the Election Tribunal. The election, therefore, is one whole continuous integrated process with every aspect of it and every stage of it and every step taken in it being its parts. 20. Further, in **Haridas** _(supra)_ a learned Single Judge of this Court has the occasion to interpret Rule 35. In a 5 1 ELR 13 W.P.(c) No. 2297 of 2016 9 threadbare analysis, his Lordship has held that normally when the election is stopped under Rule 35(3)(p), the process need not begin afresh but could proceed from the stage at which the election was stopped. The fundamental feature of both Rule 35(3)(e)(v) and Rule 35(3)(p), thus, is the interruption of the electoral process, though the rules govern different stages. If the illegal acts are aimed at disrupting the election process with a view to resuming the electoral process afresh, the disruption could even be an incentive for unscrupulous persons to destroy the democratic process of holding the election. Such acts will stifle the democratic process; they cannot be permitted. 21. Indeed, a learned Division Bench of this Court in **Madhavan Namboodiri** _(supra)_ has held that the managing committee has authority and jurisdiction to fix a new date for the election and that it is not necessary to repeat the whole process as contemplated by Rule 35. Their Lordships have also further held that members who are entitled to vote will have to be determined by taking into account the original date of election and not the adjourned date. True. As has already been adverted to, it is not a case of adjourning the election in W.P.(c) No. 2297 of 2016 10 terms of Rule 35; it is a case of recalling the very notification thus obliterating any traces of the process of election said to have already commenced. 22. It is pertinent to observe, as is evident from Exhibit P3, that the commission has even recalled the appointment of the electoral officer and also the returning officer. Thus, without fear of contradiction, I may place on record that the ratio of **Madhavan Namboodiri** _(supra)_ or for that matter that of **V.S. Achuthanandan** _(supra)_ has no application to the facts of the case. 23. If we examine the statutory scheme further, sub-rule (9) of Rule 35A shows that the Election Commission has the powers to issue any directions or guidelines or instructions for the conduct of election to the Societies and also to the officers appointed to perform the election duties. While interpreting sub-rule (9) of Rule 35A of the Rules, this Court in **Mohanachandan Nair** (supra) has held that the Returning Officer may not have the power to adjourn the election. But the power of the Election Commission in that regard cannot be disputed. 11 W.P.(c) No. 2297 of 2016 24. Further, the underlying issue seems to be the apprehension entertained by the petitioner that the administrative committee or the administrator likely to be appointed would manipulate the process and admit new members so as to tilt the electoral balance—in the words of the learned Senior Counsel ‘gerrymander’, which actually means manipulating the boundaries of an electoral constituency so as to favour one party or class. 25. To the credit of the learned Special Government Pleader, I must say he has fairly submitted that given the present statutory position and the judicial interpretation of the issue as regards the powers of the administrative committee or the administrator, the question of either of the said entities admitting new members does not arise. Under those circumstances, I am constrained to conclude that the apprehension expressed by the petitioner concerning the possible abuse of power by the administrative committee or the administrator to be appointed is unfounded. 26. Under these circumstances, especially given the fact that the amended bye-laws are yet to be registered, and the process of registration is time-consuming given the fact that in W.P.(c) No. 2297 of 2016 12 terms of Section 12 of the Act, the Joint Registrar is required to consult the Circle Co-operative Union as well as the Financing Banks, it is inadvisable to insist that the election be held either on the date originally fixed, i.e. 31.01.2016 or any other date in proximity, which is impossible to be complied with. 27. Taking a holistic view of the issue, I am of the considered opinion that the Society may take all possible steps to ensure that the democratic process is not jettisoned on technicalities, and the election is held at the earliest. At any rate, given the persistent submission of the learned Senior Counsel, this Court further holds that the respondents shall hold the election in terms of the amended bye-laws and on a ward basis as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. No order as to costs. ## **DAMA SESHADRI NAIDU JUDGE** DMR/-