E.A. Hamza v. Kerala State Co-operative Election Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **FRIDAY, THE 10TH DAY OF AUGUST 2012/19TH SRAVANA 1934** ## **WP(C).No. 18425 of 2012 (C)** **---------------------------** **PETITIONER(S):** - **---------------------------** **E.A.HAMZA, S/O.ABDULRAHAMAN, ILLIKOTTIL VEEDU, MULLURKARA P.O., THALAPPALLY, THRISSUR DISTRICT.** ## **BY ADV. SRI.T.RAJASEKHARAN NAIR** **RESPONDENT(S):** - **----------------------------** **1. THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY,THIRUVANANTHAPURAM- 695 001.** ## **2. THE ELECTORAL OFFICER,** - **(ASSISTANT REGISTRAR CO-OPERATIVE CIRCLE (GENERAL)THALAPPALLY), THE MULLURKARA VILLAGE SERVICE CO-OPERATIVE BANK LTD. R-677, MULLURKARA P.O, THALAPPALLY, THRISSUR DISTRICT.** **3. THE RETURNING OFFICER,(CO-OPERATIVE INSPECTOR, KUNNUMKULAM UNIT) THE MULLURKARA VILLAGE SERVICE** **CO-OPERATIVE BANK LTD.R-677, MULLURKARA P.O, THALAPPALLY, THRISSUR DISTRICT.** **4. THE MULLURKARA VILLAGE SERVICE CO-OPERATIVE BANK, REPRESENTED BY ITS SECRETARY, MULLURKARA P.O., THALAPPALLY, THRISSUR DISTRICT.** **5. MATHEW MATHEW,PARAYIL VEEDU, MULLOORKARA P.O, THALAPPILLY TALUK.** **6. DEVARAJAN, MANGATTUNALIL VEEDU, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **7. K.L.LUCY,MARUTHUMOOTTIL VEEDU, MULLOORKARA P.O., THALAPPILLY TALUK -680 583.** **8. K.C.SIDDHI, KONDAZHIPLACKAL VEEDU, MULLOORKARA P.O., THALAPPILLY TALUK -680 583.** **==> picture [13 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> 2/-<br>**----- End of picture text -----**<br> **sts** **-2-** ## **WP(C)NO.18425/2012** ## **9. P.KRISHNANKUTTY,** **POTTAYIL VEEDU, IRUNILAMKODE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **10. LAJITHA, CHULLIVALLAPPIL HOUSE,MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **11. E.K.SIVAN, IDAPARACKAL HOUSE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **12. P.A.ABDULSALAM, PULLICKAL, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **13. P.V.ALI, PALATHINGAL, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** ## **14. M.A.IBRAHIM,** - **MANNAVATTATH HOUSE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **15. GOPALAKRISHNAN K.S, S/O.SANKARANKUTTY, KALLARIKKAL HOUSE, MULLOORKARA P.O, THALAPPILLY TALUK -680 583.** **16. T.V.SATHYAPALAN, THEKEVILAKATHALA HOUSE, IRUNILAMKODE, MULLOORKARA P.O, THALAPPILLY TALUK- 680 583.** ## **17. K.N.HARIDAS,KUNDUPARAMBIL HOUSE,** - **IRUNILAMKODE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** ## **18. N.G.PRABHAKARAN,** - **NEDUGOTTIL HOUSE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **19. SURESHBABU, MANGATTUNALIL HOUSE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** ## **20. M.P.KRISHNANKUMAR,P.C.B NIVAS, MULLOORKARA P.O.,THALAPPILLY TALUK- 680 583.** ## **21. LATHA K.G, CHAKKATH HOUSE, MULLOORKARA P.O., THALAPPILLY TALUK -680 583.** **3/-** **-3-** ## **WP(C)NO.18425/2012** **22. ABU P.K, PUTHENPEEDIKAYIL HOUSE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **23. M.H.ABDULSALAM, MULLAYIL HOUSE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **24. MUHAMMED MUSTHAFA, NABRATH HOUSE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** ## **25. SANTHEEP,** **KOZHIPARAMBIL HOUSE, IRUNILAKODE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **26. THAHIRIA ALI, PALATHINGAL HOUSE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** ## **27. RAMANI,** **APPATTU HOUSE, IRUNILAMKODE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** ## **28. LATHAMOHANAN,** **VADAVARAMBU HOUSE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **29. SODHARAN M.N, DEVI PRABHA, MULLOORKARA P.O., THALAPPILLY TALUK -680 583.** **30. JANAKI,VATTAKETTIL HOUSE, IRUNILAMKODE, MULLOORKARA P.O., THALAPPILLY TALUK- 680 583.** **BY SPL. GOVERNMENT PLEADER SRI.D.SOMASUNDARAM R4 BY ADV. SRI.P.C.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.18425/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT P1. A TRUE PHOTOCOPY OF THE RESOLUTION PASSED BY THE 4TH RESPONDENT.** **EXHIBIT P2. A TRUE PHOTOCOPY OF THE NOTIFICATION ISSUED BY THE IST RESPONDENT.** **EXHIBIT P3. A TRUE PHOTOCOPY OF THE RELEVANT PAGES FROM 1 TO 5 AND THE LAST TWO PAGES OF THE VOTERS LIST PUBLISHED BY THE RESPONDENT.** - **EXHIBIT P4. A TRUE PHOTOCOPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P5. A TRUE PHOTOCOPY OF THE OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P6. A TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P7. A TRUE PHOTOCOPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER ALONG WITH CERTAIN OTHER PERSONS BEFORE THE IST RESPONDENT.** - **EXHIBIT P8. A TRUE PHOTOCOPY OF THE COMPALINT SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** ## **RESPONDENTS' EXHIBITS AND ANNEXURES:** **ANNEX R2(A) COPY OF THE RELEVANT PORTION OF THE BYE-LAW CLAUSE 31(B) AND 25 A** **ANNEX R2(B) COPY OF THE LAST ENTRY OF THAT PORTION OF MEMBER NO.4767 ANNEX R2(C) COPY OF THE ENTRY OF MEMBER NO.4768** **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## **K.SURENDRA MOHAN, J.** = = = = = = = = = = = = WP(C).No.18425 of 2012. = = = = = = = = = = = = Dated this the 10[th] August, 2012. ## **J U D G M E N T** The petitioner, a member of the fourth respondent Bank, has filed this writ petition challenging Ext.P2 election notification issued by the first respondent for conducting an election to the Board of Directors of the fourth respondent society. According to the petitioner, though the resolution to conduct an election was passed on 9.6.2012, the same was forwarded to the Registrar of Co-operative Societies only on 22.6.2012. The above action, according to the petitioner, is violative of Rule 35A(1) of the Kerala Cooperative Societies Rules, 1969 ('the Rules' for short). The further contention of the petitioner is that for the purpose of the election, a draft voters list was prepared showing the names of 7757 eligible members of the society. According to the petitioner, the voters list ought to have been **WP(C).No.18425/2012.** 2 prepared on the basis of different wards in the society. Instead, a single voters list has been prepared. The petitioner also contends that a number of ineligible persons have been included in the voters list. Though he had objected to the draft voters list, the said objections have not been considered. The third contention of the petitioner is that there is no form 6B Register available in the society and therefore, there is no means of confirming the identity of the voters at the time of polling. As per the Election Notification, the election is scheduled on 11.8.2012, tomorrow. Therefore, the petitioner seeks the issue of appropriate orders and directions stopping the conduct of the election. 2. A statement has been filed by the second respondent – Electoral Officer. According to the statement, a preliminary voters list was published on 12.7.2012 at 11.00 am. A period of nine days from 12.7.2012 to 20.7.2012 was given for submitting objections if any to the ## **WP(C).No.18425/2012.** **==> picture [7 x 10] intentionally omitted <==** draft voters list. The petitioner did not submit any objections to the draft voters list within the time stipulated. As per the Election Notification Ext.P2, a final voters list was published on 21.7.2012. Thus, the voters list has been finalised. The voters list has been prepared in accordance with Clause 25A of the bye-laws of the fourth respondent society. The relevant portions of the bye-laws are produced as Ext.R2(a). According to the second respondent, the byelaw provisions do not stipulate preparation of separate voters list for the different wards. 3. With respect to the objection regarding the nonavailability of a form 6B Register, the explanation of the second respondent is that instead of maintaining a form 6B Register, the fourth respondent society has been maintaining files containing duplicate copies of the identity cards issued to the members. The last entry in the said register is membership Nos.4767 and 4768. Photo copies of two pages of such entries are produced as Exts.R2(b) and **WP(C).No.18425/2012.** 4 R2(c) respectively. In view of the fact that such a Register is available though not in form 6B, it is submitted that the objections of the petitioner do not subsist. 4. Adv.P.C.Sasidharan appears for the fourth respondent society. According to the counsel, the bye-law provision applicable to the preparation of a voters list is clause 31(b) which is part of Ext.R2(a). According to the said clause, the voters list has to be prepared in common but, election has to be conducted on the basis of wards. It is also pointed out that clause 31(b) of the bye-laws as it stood originally had stipulated the preparation of a ward wise voters list, separately. However, the said provision has been substituted by an amendment to the bye-laws and therefore, the said requirement is not available any more. According to the counsel, the petitioner had not submitted any objections to the draft voters list within the time stipulated by Ext.P2 notification. My attention is invited to the receipt produced as Ext.P6 issued after the publication **WP(C).No.18425/2012.** 5 of the final voters list. According to the counsel, the omission to maintain a form 6B register does not vitiate the entire process of election and therefore, it is contended that no interference in the process of preparation of voters list in the present case, especially at the hands of the petitioner who has filed this writ petition only on 3.8.2012 is called for. For the above reason it is contended that the writ petition is liable to be dismissed. 5. I have heard Adv.T.Rajasekharan Nair and Adv.George Poonthottam who appear for the petitioner, Sri.D.Somasundaram, the Spl.Govt.Pleader as well as Adv.P.C.Sasidharan for the fourth respondent. I have gone through the various documents produced and have also been taken through the various provisions of the Act. I have considered the rival contentions anxiously. 6. Ext.P1 is the resolution by which the Board of Directors of the fourth respondent society has decided to conduct the election on 11.8.2012. The said resolution is **WP(C).No.18425/2012.** 6 dated 9.6.2012. However, it is evident from Ext.P1 that the same has been forwarded to the Registrar of Co-operative Societies only on 22.6.2012. Rule 35A(1) of the Rules mandates that the resolution shall be forwarded to the State Co-operative Election Commission by registered post within a week. It was certainly open to the Registrar to have taken note of the above discrepancy and refused to act on Ext.P1 resolution. However, no such action was taken. Instead, the same was forwarded to the State Co-operative Election Commission and the proceedings for the conduct of an election have been set in motion by appointing an Electoral Officer. To contend that an infraction of the above requirement stipulated by Rule 35A would vitiate the entire election, would according to me, be far fetched. It is to be noted that there was no objection on the above score at any point of time from any one, though the notification Ext.P7 was issued as early as on 4.7.2012. Therefore, I am not satisfied that the polling that is scheduled to be conducted **WP(C).No.18425/2012.** 7 tomorrow should be interfered with for the above discrepancy. It would certainly be open to the petitioner to take up the above aspect also as a ground, if he chooses to challenge the election that is scheduled to be conducted in a properly framed Election Petition. 7. The second contention of the petitioner is that the voters list on the basis of which the election is proposed to be conducted, is defective for the reason that the same has not been prepared on a ward to ward basis. As rightly contended by the counsel for the fourth respondent, the bye-law provision as it originally stood, a copy of the relevant portion of which has been handed over to me by the counsel, had originally stipulated that different wards had to be created in such a way that there were not less than hundred voters in each ward, subject to the provisions of the Act and the Rules. However, the above provision has been amended and a new provision, as it exists in Ext.R2(a) at present, has been incorporated. The new provision **WP(C).No.18425/2012.** 8 provides that a list has to be prepared in common for six wards but, the election would have to be conducted on the basis of wards. Therefore, keeping in mind the fact that the earlier bye-law provision was amended to provide for the preparation of a common voters list, it has to be held that the bye-law provision does not mandate the preparation of separate voters lists for the different wards. 8. The third contention that has been vigorously put forth is that no form 6B Register as required by the Rules is maintained in the society. For the above reason, it is contended that there would not be any means of identifying the individual voters who come to exercise their voting rights. As already noticed, instead of maintaining a form 6B Register, copies of the identity cards issued to the individual members are maintained in a file. One such file maintained by the society is made available by the Spl.Govt.Pleader for my perusal. The said file shows that all the details of the different members including their **WP(C).No.18425/2012.** 9 photographs and signatures or thumb impressions are available in the said files. I am satisfied that the identity of a voter who comes to exercise his right of franchise can be ascertained with reasonable certainty on a reference to the files in which copies of the identity cards issued to each of the members are maintained. Therefore, the apprehension of the petitioner that there is no means of verifying the identity of the individual voter is without any basis. It is the further contention of the petitioner that all the members have not been issued with identity cards and for the said reason, details of such members would not be available in the files maintained by the society. Reference is also made to the statement of the second respondent wherein it has been stated that there were 7757 members for the fourth respondent society. But, the details of only 3029 members are found in the register that is maintained. It is also pointed out that with respect to the persons with membership No.4768 onwards, there is no form 6B Register **WP(C).No.18425/2012.** 10 but, only the duplicate identity cards issued in form 6A. Since the majority of the members of the society do not find a place in the said register, it is contended that an election on the basis of the said Register would only be a force. Rule 16 A reads as follows: “16A. **Identity card** :- (1) A person admitted as a member of a Society shall be issued with an identity card, in Form 6A, which shall be conclusive evidence to prove his membership in the Society. The member shall furnish two copies of his recent photograph of passport size to the Society. Copies of the photograph shall be attested by the Chief Executive of the Society or an officer specially empowered in this behalf by the Committee of the Society and one copy of the duly attested photograph shall be affixed in the identity card and the other copy shall be affixed in the Register in Form 6B maintained for the purpose. The identity card shall also bear the seal of the Society. (2) An existing member shall, within one month from the date of commencement of these rules, furnish to the society concerned two copies of his recent photograph of passport size and the Society shall issue identity card to him within a period of fifteen days from the date of receipt of the photograph: **WP(C).No.18425/2012.** 11 Provided that the Registrar may, in deserving cases, for reasons to be recorded in writing, extend the above period of one month and fifteen days for a further period upto one month or fifteen days, as the case may be. (3) The identity card shall be issued direct to the member concerned after obtaining his acknowledgment in the Register in Form 6B and shall not be supplied to any other person on his behalf.” 9. As per the above rule, a person admitted to the membership of the society has to be issued with an identity card in form 6A, which is meant to be conclusive evidence of his membership in the society. It is true that the said Rule mandates the maintenance of a Register in form 6B. The question as to what would be the effect of an omission to maintain a register as required by the above provision was considered by this Court in **Joseph v. Kothamangalam Co-op.M.Society Ltd** . (1994(1) KLT 828). A learned single Judge of this Court has considered the issue as follows, at paragraph 4 of the said judgment: **WP(C).No.18425/2012.** 12 “The qualifications for admission as a member are laid down in S.16 of the Act and Rule 16 of the Rules. Possession of an identity card is not a pre-requisite for admission to membership. Rule 16A which provides for issue of identity cards enacts the evidentiary value of the identity card and not the qualification for admission to membership. That is why it is only “a person admitted as a member of a society” that shall be issued with an identity card. Admission as a member precedes the issue of identity cards. Therefore the petitioner is not right in his submission that unless identity cards are issued to members such members cannot be considered as members qualified to vote at the election. A member is qualified to vote by virtue of his status as member. The identity card is but evidence of membership for the purpose of receiving ballot paper. The identity card has been constituted “conclusive evidence” of his membership for the purpose of issue of a ballot paper. A member may not be able to vote without producing the identity card. But that does not mean that he is not a member of the society. I therefore hold that possession of identity card issued under Rule 16A or 16B is not a necessary condition for acquisition of membership.” 10. It is clear from the above that the non availability of form 6 B register would not result in denial of the voting **WP(C).No.18425/2012.** **==> picture [13 x 10] intentionally omitted <==** right of a member of the society. He has a right to exercise his voting right on the strength of an identity card issued under Rule 16A of the Rules. Therefore, the non maintenance of the said register in an up-to-date form is not likely to be cause any prejudice to the members of the society who are expected to exercise their franchise on 11.8.2012. If at all the non maintenance of form 6B Register is found have resulted in denial of the voting right to any members, the same can certainly be the subject matter of challenge against the election that is proposed to be held. Since it cannot be said at this point of time whether the omission to maintain the form 6B Register is likely to cause any prejudice to an individual voter or voters, I am not inclined to interfere with the electoral process on the said ground. 11. Apart from the above, it is to be noticed that though the election schedule was published as early as on 4.7.2012 as evidenced by Ext.P2, setting out in detail, the **WP(C).No.18425/2012.** 14 schedule of election, no timely action was taken by the petitioner to set right the discrepancies, if any, in the procedure adopted. It is worth noticing that the preliminary voters list was published on 12.7.2012 calling for objections which could have been submitted upto 5.00 pm. on 20.7.2012. However, the petitioner had not submitted any objections. The belated objections submitted by the petitioner as evidenced by Exts.P5 and P6 was on 28.7.2012, after the publication of the final voters list. This writ petition itself has been filed only on 3.8.2012. The petitioner does not appear to have been vigilant at all in preferring the objections that he has now raised, even assuming that they are genuine. It has been held by this Court time and again that the electoral process is not to be lightly interfered with. 12. For the above reasons, I am not satisfied that the petitioner is entitled to any of the reliefs sought for in this writ petition. Therefore, the same is only to be dismissed. **WP(C).No.18425/2012.** 15 However, it is made clear that the observations made above and the findings entered shall be without prejudice to the rights of the petitioner to challenge the election that is proposed to be held on 11.8.2012 in a properly framed Election Petition, if he is so advised. **K.SURENDRA MOHAN,** (Judge) **Kvs/-**