C.V. Manoharan and K. Ajayan v. Kerala State Co-operative Election Commission and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 18TH DAY OF DECEMBER 2013/27TH AGRAHAYANA, 1935 WP(C).No. 23859 of 2013 (F) ---------------------------- PETITIONER(S): -------------------------- 1. C.V. MANOHARAN (MEMBER NO.3568) (PRESIDENT, MANAGING COMMITTEE OF CHERTHALA SOUTH SERVICE CO-OPERATIVE BANK) RESIDING AT CHETHIKKATT, CHERTHALA SOUTH, ALAPPUZHA. 2. K.AJAYAN,(MEMBER NO.7682), (MEMBER, MANAGING COMMITTEE OF CHERTHALA SOUTH SERVICE CO-OPERATIVE BANK) RESIDING AT VALIYAVEETIL HOUSE,, CHERTHALA SOUTH, ALAPPUZHA. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): - ---------------------------- 1. KERALA STATE CO-OPERTIVE ELECTION COMMISSION THIRUVANANTHAPURAM.-695001 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM.-695001 3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ALAPPUZHA.-688001 4. THE RETURNING OFFICER APPOINTED FOR CONDUCT OF ELECTION TO THE CHERTHALA SOUTH SERVICE CO-OPERATIVE BANK, (OFFICE INSPECTOR ATTACHED TO THE OFFICE OF THE ASSISTANT REGISTRAR CHERTHALA.)-688001 5. SUPERINTENDENT OF POLICE, ALAPPUZHA.-688001 6. SURESH.R., OFFICE INSPECTOR ATTACHED TO THE OFFICE OF THE ASSISTANT REGISTRAR CHERTHALA, RESIDING AT SINDHOORAM, PANAVALLY P.O. CHERTHALA.-688524 7. ANANTHAPADMANABHAN G., AGED 60 YEARS, S/O GANGADHARA PANIKKAR, MEMBER NO. 2189 CHERTHALA SOUTH CO-OPERATIVE BANK, RESIDING AT ARUN VIHAR, CHERTHALA SOUTH P.O, CHERTHALA ALAPPUZHA DISTRICT-688524 WP(C).No. 23859 of 2013 -2- 8. NARAYANAN, 74 YEARS, S/O VAVA MEMBER NO. 2947, CHERTHALA SOUTH CO-OPERATIVE BANK RESIDING AT MANIYANTHARA, MAYITHARA P.O-688524 9. SURESHKUMAR, S/O NARAYANAN NAIR, MEMBERSHIP NO.8617 CHERTHALA SOUTH CO-OPERATIVE BANK RESIDING AT KANIYADICKAL, CHERTHALA SOUTH P.O. CHERTHALA, ALAPPUZHA DISTRICT.-688524 ## ADDL.R10 10. SRI.P.SAJIMON, PART TIME ADMINISTRATOR OF CHERTHALA SOUTH SERVICE CO-OPERATIVE BANK, CHERTHALA, PIN 688524 (Impleaded as per order dated 4.12.2013 in I.A.15433/13) R7-R9 BY SRI.K. JAJU BABU ADDL.R7-R9 BY SMT.M.U.VIJAYALAKSHMI BY GOVERNMENT PLEADER SRI.D. SOMASUNDARAM ADDL 10 BY SRI.J. OM PRAKASH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 23859 of 2013 (F) ---------------------------- ## APPENDIX EXHIBITS ------------------------------------- EXT.P1: TRUE COPY OF THE ELECTION NOTIFICATION DATED 19/8/2013. EXT.P2: TRUE COPY OF THE PROCEEDINGS ISSUED IN THIS REGARD DATED 19/8/2013. EXT.P3: A COPY OF THE LIST OF CONTESTING CANDIDATES. EXT.P4: TRUE ORDER AND THE COPY OF THE ORDER DATED 27/9/2013. EXT.P5: TRUE COPY OF THE COMMUNICATION ISSUED BY THE 5TH RESPONDENT. EXT.P6TRUE COPY OF THE ORDER ISSUED BY THE JOINT REGISTRAR DATED 28.9.13 EXT.P7TRUE COPY OF THE ORDER ISSUED BY THE KERALA STATE COOPERATIVE ELECTION COMMISSION DATED 30.9.2013 EXT.P8TRUE COPY OF THE REQUEST EXT.P9TRUE COPY OF THE INFORMATION FURNISHED BY THE ASSISTANT REGISTRAR EXT.P10TRUE COPY OF THE REQUEST EXT.P11TRUE COPY OF THE REPLY EXT.P12TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES SOCIETY FROM 4.9.13 TO 30.9.13 EXT.P13TRUE COPY OF ONE OF THE ORDER ISSUED BY THIS HONOURABLE COURT IN WP(C).19639 OF 2013 EXT.P14TRUE COPY OF THE COMMUNICATION ADDRESSED TO THE SUB DIVISIONAL MAGISTRATE DATED 1.10.13 EXT.P15TRUE COPY OF THE ORDER ISSUED BY THE JOINT REGISTRAR DATED 30.9.2013 EXT.R4(a)TRUE COPY OF THE PERFORMA FORWARDED BY THE BANK TO THE STATE CO-OP. ELECTION COMMISSION EXT.R4(b)TRUE COPY OF THE LETTER DATED 27.9.13 EXT.R4(c)TRUE COPY OF THE MINUTES DATED 30.9.13 WHEREBY THE CHARGE WAS ASSUMED ON 10 AM ON 30.9.2013 EXT.R4(d)TRUE COPY OF THE COMMUNICATION TO THE MANAGER CHERTHALA SCB MAYITHARA BRANCH EXT.R4(e)TRUE COPY OF THE COMMUNICATION TO THE MANAGER, SBT, CHERTHALA BRANCH WP(C).No. 23859 of 2013 -2- EXT.R4(f)TRUE COPY OF THE COMMUNICATION TO THE MANAGER, ALAPPUZHA DISTRICT CO-OP BANK EXT.R4(g)TRUE COPY OF THE COMMUNICATION TO THE MANAGER ALAPPUZHA DISTRICT CO-OP BANK, ARTHUNKAL BRANCH EXT.R4(h)TRUE COPY OF THE COMMUNICATION TO THE MANAGER, ALAPPUZHA DISTRICT CO-OP BANK CHERTHALA MORNING & EVENING BRANCH EXT.R4(i)TRUE COPY OF THE ORDER OF STATE CO-OP ELECTION COMMISSION DATED 30.9.2013 EXT.R4(j)TRUE COPY OF THE ORDER OF THE STATE CO-OP ELECTION COMMISSION DATED 19.8.2013 EXT.R7(a)COPY OF THE NEWS REPORT APPEARED IN MALAYALA MANORAMA DAILY DATED 18.10.2013 EXT.R7(b)COPY OF THE NEWS REPORT APPEARED IN MALAYALA MANORAMA DAILY DATED 19.10.2013 EXT.R7(c)COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 12.9.2013 IN WP(C).7022/2013 ` //true copy// P.A.To Judge ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 23859 of 2013 - - - - - - - - - - - - - - - - Dated 18[th] December, 2013 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** The petitioners are members of the erstwhile Managing Committee of the Cherthala South Service Co-operative Bank which, at present is managed by the additional 10[th] respondent who is the part time Administrator appointed by the 3[rd] respondent. 2. The short facts are that the election to the Society was declared by Ext.P1 notification and was scheduled to be held on 28.9.2013. At about 6.30 pm on 27.09.2013, the Returning Officer, on the report of the police that there could be large scale impersonation in the polling and apprehension of a law and order situation, stopped the election proceedings by Ext.P4. Obviously, the said stoppage of election was based on Ext.P5 report of the District Superintendent of Police. Subsequently, an Administrator was appointed by Ext.P6 and the election was cancelled as per Ext.P7 by the Election Commission. The petitioners challenge the **WP(C).23859/13** 2 stoppage of election, the appointment of Administrator as also the cancellation of election subsequently made by the Election Commission. 3. Considerable arguments have been addressed on the question of whether the appointment of Administrator was proper or not. It is contended that the notice required under Section 33(1) of the Kerala Co-operative Societies Act, 1969 (for short 'the Act') has not been issued and hence, the appointment of the Administrator itself is bad since the 1[st] proviso to sub-section (1) talks of impracticability and the reason stated by the 3[rd] respondent in Ext.P6 for not issuing such a notice, is the insignificance of such a notice. In the nature of the orders to be passed, this Court does not intend to answer the said question now. 4. In any event, an Administrator has been appointed and he is in charge of the affairs of the Society and the term of the Managing Committee has expired. What is relevant for consideration in the present writ petition is as to how the election **WP(C).23859/13** 3 has to be conducted; whether it be carried on as scheduled or to be left to the Election Commission, since the election itself stands cancelled as per Ext.P7. 5. I have heard Sri.P.C.Sasidharan for the petitioners, the learned Special Government Pleader (Co-operation), for the Department, learned senior counsel Sri.Jaiju Babu for respondents 7 to 9 and Sri.V.G.Arun for the Part-time Administrator. 6. A similar question arose as to whether an election could be cancelled by the Election Commission in W.P.(C).25280/2013, which was answered by judgment dated 29.11.2013. There the election was cancelled by the Election Commission, just prior to the date of polling, on the ground that there were ineligible members included in the final voters list, though the delegate of the Election Commission being the Electoral Officer had published a final voters list after considering the objections. This Court held so in paragraph 7 and 8:- **WP(C).23859/13** 4 It was on a further complaint to the Election Commission that the Election Commission directed the Joint Registrar to enquire as to whether there were any ineligible members in the final voters list. It is trite that once the election process has started, even this Court would hesitate to interfere with the process and impede the conduct of elections on an allegation of inclusion of ineligible members. There are specific provisions in the Kerala Co-operative Societies Act, 1969 and the Rules framed thereunder for the removal of ineligible members and an objection made as a precursor to the election can only be treated as one made to impede the democratic process of an election. It is also trite that such complaints and objections after having been validly considered by the Electoral Officer, any remaining grievance would have to be agitated after the elections in a properly instituted Election Petition. In such circumstance, it is difficult to sustain the action of the Election Commission in having directed the Joint Registrar (General) to conduct an enquiry and directing cancellation of the elections. The final voters list definitely has been published after complying with the provisions of the Act and the Rules. The election, hence, has to go through and, definitely, any complaints regarding the conduct of election or inclusion of any ineligible members ought to be left open to be decided in a validly instituted Election Petition. **WP(C).23859/13** 5 In the above circumstances, it is deemed fit that the election which was cancelled as per Exhibit P12 be resumed from the stage at which it was stopped and the polling conducted. The cancellation of the elections being found to be bad, it can only be deemed that the polling was stopped. A Division Bench of this Court in **Madhavan Namboodiri v. Kammaran [1992 (2) KLT 567]** held so: “It is no doubt true that there is no provision in the Act or the Rules as to what should happen if an election could not be held on the original date due to any reason not contemplated under the Rules. But that does not mean that the Committee is powerless. It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. xx xx xx From what is stated above it has to be held that the Managing Committee has authority and jurisdiction to fix a new date for the election, if for any reason the election could not be conducted on the original date fixed, and that it is not necessary to repeat the whole process as contemplated under R.35. The election proceedings could be continued from the stage at which it was stopped ...” ( _sic_ ). 7. In the present instance, the stoppage of election was on the report of the District Superintendent of Police who had by Ext.P5, informed respondents 3 and 4 that the number of seats in the Managing Committee of the Society was illegally increased from **WP(C).23859/13** 6 9 to 12 with the mala fide intention of taking over the administration by hook or crook and that there were 36 candidates in the election to be conducted to 12 seats. It was only relying on such report that the election scheduled to the next day was stopped by Ext.P4. In the aforesaid decision cited, at least the Election Commission had taken cognizance of the report of a Joint Registrar of the Co-operative Department. But in this case, it is seen that the Returning Officer had relied on a letter of the District Superintendent of Police and without considering whether the illegality pointed out therein was evident from the provisions of the Act and Rules went ahead and stopped the election without any reference to the provisions of the Act and Rules. 8. It is pointed out that the three seats which were enhanced in the present election were in accordance with the amendment brought to Section 28A of the Act and that there is no embargo in 36 candidates contesting to the 12 seats of the Managing Committee. In any event, if there is any apprehension of disruption of election, it is for the District Police to afford necessary police **WP(C).23859/13** 7 protection and see that the polling is carried on without any hindrance. This Court has also subsequently, by judgment dated 17.10.2013 in W.P.(C).24603/2013 issued general directions, recording the undertaking of the State Attorney that hereinafter the police would by themselves without any direction from the Court, see that the elections to Co-operative Societies in the State would be conducted smoothly without disturbances from any quarters. It is unfortunate that the Department which is entrusted with the law and order situation interferes with the election process on a mere apprehension of a law and order situation at the time of polling, without taking steps to thwart the attempt of miscreants or antisocial elements to hamper a validly convened election procedure. 9. Be that as it may, in the present case, what is to be looked at is whether the election was only stopped by the Returning Officer or Ext.P7 cancels the elections, on the basis of complaints received from unnamed sources. It is to be noticed that here also, the Electoral Officer appointed by the Election Commission had published a final voters list after considering the objections and the **WP(C).23859/13** 8 stoppage of election was only due to the apprehension of a law and order situation. The Election Commission ought not to have subsequently entertained complaints again from unnamed sources and directed cancellation of the election. The learned Special Government Pleader would submit that there is no cancellation as such effected, since, though in the closing paragraph it is stated that the election notification has been withdrawn, it is only on the basis of the stoppage of election made by the Returning Officer on the apprehension of law and order situation as reported by the police, that Ext.P7 was issued. 10. In such circumstances, this Court is of the opinion that the Election Commission should expedite the election process and to facilitate that; the Administrator has to pass a resolution fixing the date of polling, since the election was stopped by the Returning Officer on the previous day of the polling, and it is now to be resumed from the stage at which it was stopped. What remains is only the polling to be conducted and the Administrator shall, within three weeks from today, adopt a resolution fixing a date and venue **WP(C).23859/13** 9 for polling falling within three months from the date of resolution and communicate the same to the Election Commission and the Election Commission shall appoint a Returning Officer if necessary, and conduct the election in accordance with the Act and Rules as expeditiously as possible, at any rate, within the time stipulated herein. The writ petition is disposed of leaving the parties to suffer their costs. **SD/-** **K.VINOD CHANDRAN, Judge** Mrcs