E.K. Anil Kumar 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** ## **TUESDAY, THE 21ST DAY OF JANUARY 2014/1ST MAGHA, 1935** ## **WP(C).No. 532 of 2014 (N)** **--------------------------** **PETITIONER(S): --------------------------** **E.K.ANILKUMAR, MEMBER NO. 22242, THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LIMITED NO. 4348, ERNAKULAM (MEMBER, BOARD OF DIRECTORS).** ## **BY ADV. SRI.P.C.SASIDHARAN** **RESPONDENT(S): ----------------------------** **1. KERALA STATE CO-OPERATIVE ELECTION COMMISSION, OFFICE OF THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM - 695 001.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM - 695 001.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, ERNAKULAM - 682 001.** **4. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANAYANNUR, ERNAKULAM - 682 001.** **5. THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LIMITED NO. 4348, ERNAKULAM - 682 001, REPRESENTED BY ITS SECRETARY.** ***ADDL.R6 IMPLEADED:** **R6. M.SOMANATHAN,MEMBER, THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LIMITED NO.4348, ERNAKULAM, RESIDING AT SUMTHRUPTHI, MUNDELA PO, VALLANAD, THIRUVANANTHAPURAM DISTRICT.** **(*ADDL.R6 IMPLEADED AS PER ORDER DTD. 21/01/2014 IN I.ANO.689/2014)** **R1 TO R4 BY SPL.GOVERNMENT PLEADER SRI.D.SOMASUNDARAM ADDL.R6 BY ADV. SRI.GEORGE POONTHOTTAM** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **WP(C).No. 532 of 2014 (N)** **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **---------------------------------------** **EXHIBIT-P1-TRUE COPY OF THE RESOLUTION OF THE SOCIETY AUTHORIZING THE PETITIONER TO FILE THIS WRIT PETITION ON BEHALF OF THE MANAGING COMMITTEE OF THE SOCIETY.** ## **EXHIBIT-P2-TRUE COPY OF THE BYE LAW OF THE SOCIETY.** **EXHIBIT-P3-TRUE COPY OF THE RESOLUTION ADOPTED BY THE SOCIETY.** **EXHIBIT-P4-TRUE COPY OF THE LETTER ADDRESSED BY THE SECRETARY OF THE SOCIETY TO THE IST RESPONDENT.** **EXHIBIT-P5-TRUE COPY OF THE COMMUNICATION ISSUED BY THE IST RESPONDENT DATED 18/12/2013.** **EXHIBIT-P6-TRUE COPY OF THE COMMUNICATION ISSUED BY THE 3RD RESPONDENT DATED 29/11/2013.** **EXHIBIT-P7-TRUE COPY OF THE DETAILED REPORT FILED BY THE 5TH RESPONDENT AND COPY OF THE SAME, RECEIVED UNDER THE RIGHT TO INFORMATION ACT.** ## **EXHIBIT-P8-TRUE COPY OF THE COMPLAINT RECEIVED BY THE SECRETARY.** **EXHIBIT-P9-TRUE COPY OF THE REPORT SUBMITTED BY THE SECRETARY OF THE SOCIETY.** ## **EXHIBIT-P10-TRUE COPIES OF THE NOTICE.** **EXHIBIT-P11-TRUE COPY OF THE PROFORMA OF THE LETTER TO BE ISSUED THROUGH THE DISTRICT POLICE CHIEF.** **EXHIBIT-P12-TRUE COPY OF THE OFFICE ORDER WAS ALSO ISSUED IN RELATION TO THE ISSUANCE OF IDENITY CARDS.** **EXHIBIT-P13-TRUE COPY OF THE RELEVANT EXTRACT OF THE FILES INTIMATING THE LIST OF OFFICERS TO WHOM THE COMMUNICATIONS ARE FORWARDED.** **EXHIBIT-P14-TRUE COPY OF THE COMMUNICATION ISSUED BY THE DEPUTY COMMISSIONER OF POLICE, THIRUVANANTHAPURAM.** **EXHIBIT-P15-TRUE COPY OF THE COMMUNICATION ISSUED BY THE PRESIDENT DATED 17/12/2013.** **EXHIBIT-P16-TRUE THE VARIOUS KINDS OF BENEFICIAL ACTIVITIES CARRIED OUT BY THE SOCIETY A LIST INDICATING.** **..2/-** **Kss** **...2...** ## **WPC.NO.532/2014 (N)** **EXHIBIT P17- TRUE COPY OF THE COMMUNICATION DTD. 20/11/2013 WITH COVERING LETTER.** **EXHIBIT P18 - TRUE COPY OF THE REPORT SUBMITTED BY THE UNIT INSPECTOR.** **EXHIBIT P19- TRUE COPY OF THE REPORT SUBMITTED BY THE ASSISTANT REGISTRAR DTD. 11/12/2013.** **RESPONDENT(S)' EXHIBITS:** **-------------------------------------------** **N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **K.VINOD CHANDRAN, J.** ------------------------------------------ ## **W.P.(C)No.532 of 2014** ------------------------------------------------Dated this the 21[st ] day of January, 2014 ## **JUDGMENT** The petitioner is a member of the Board of Directors of the 5[th] respondent Society, the term of the Office of which is expiring on 23.01.2014. The 5[th] respondent Society has its area of operation, all over the State. It comprises of three category of members, viz., “A”, “B” and “C” Classes; 'A' Class being the police personnel and ministerial staff in the Department, 'B' Class being relatives of the personnel intending to avail loan from the Society as also the retired personnel and 'C' Class being the Government. The elections to the Managing Committee of the 5[th] respondent Society is unique insofar as the polling is conducted in all the 14 districts within the State of Kerala. 2. The existing Managing Committee quite conscious of the impending expiry of term, passed a W.P.(c) No.532 of 2014 2 resolution to hold elections on 18.01.2014, in a meeting of the Managing Committee held on 16.11.2013. The resolution was forwarded to the Election Commission, the first respondent. No action was taken and the petitioner was earlier before this Court in a writ petition, which was withdrawn, on the petitioner being confronted with an order declining issuance of a notification as sought for, which is impugned in the present writ petition as Ext.P5. 3. The learned counsel appearing for the petitioner Sri.P.C.Sasidharan submits that the reasons stated in Ext.P5 are unsustainable and Rule 35A of the Kerala Co-operative Societies Rules, 1969(for brevity, “the Rules”) mandates that the Election Commission draw up a notification and publish it as per the resolution for conduct of elections passed by the Managing Committee, whose term is expiring. The reason of non-maintenance of Form 6B register is untenable insofar as even going by Ext.P6 report, on which, Ext.P5 has been passed, it is clear that W.P.(c) No.532 of 2014 3 the copies of Form 6A identity cards are maintained at the Head Office of the 5[th] respondent Society. The particulars in Form 6A and Form 6B being identical, the non-maintenance of 6B Register, at best can only be a irregularity, which need not detain the conduct of the democratic elections, is the contention. In any event, it is incumbent upon the members to give passport size photographs and obtain identity cards from the Society and the Society cannot compel such action on the part of the members. In such context, those who wish to exercise the right of franchise would necessarily have received the identity cards and any inaction on the part of a few, need not stall the conduct of an election where a Managing Committee would be validly elected to Office, urges the learned counsel. 4. The learned Special Government Pleader (Co-operation) Sri.D.Somasundaram, however, asserts that it is incumbent upon the Society to issue identity W.P.(c) No.532 of 2014 4 cards, especially since without production of an identity card, no ballot paper would be issued to a member under Rule 35A(6)(n)(ix). It is also pointed out that there is a suspicion with respect to the issuance of the identity cards itself, since what is maintained in the Head Office of the first respondent Society, is allegedly a copy of Form 6A and it is not clear as to why such copies of Form 6A were maintained when the Kerala Co-operative Societies Acr, 1969(for brevity, “the Act”)and the Rules specifically stipulated issuance of identity cards in Form 6A and maintenance of such particulars in a register in Form 6B. The issuance of the cards itself, hence, is suspect and it is to be specifically noticed that in various General Bodies of the Society many members had specifically raised a question of issuance of the identity cards, since the identity cards are said to be issued only from the Head Office while the members are spread over the 14 districts of the State. W.P.(c) No.532 of 2014 5 5. A police personnel appointed to the service of the Department in any of the districts is enrolled to the Society with a contribution paid through his Head of Office, to the Head Office of the Society. It was incumbent upon the Society to have devised a procedure by which the identity cards also could be issued through the Head of Office to such personnel enrolled as members. The Managing Committee which was in office, quite aware of the provisions of the Act and Rules, should have taken steps, which they are statutorily bound to take, for issuance of identity cards in the true spirit and tenure of the Act and Rules, which seeks to bring in and carry on a democratic functioning of the Societies. The challenge made against the order of the Election Commission declining the request of the Managing Committee to hold elections, is not sustainable. The holding of elections at this point with only a selected few being issued with identity cards would not be a proper W.P.(c) No.532 of 2014 6 and fair election with participation of all the members, is the contention of the State. 6. Sri.George Poonthottam, learned counsel appearing for the additional 6[th] respondent, would also oppose the prayer of the petitioner and primarily contend that the petitioner has no _locus standi_ . Though, the petitioner has filed a resolution of the Committee authorizing him to file a writ petition, such decision is confined to a proceeding against the inaction of the Election Commission to bring out a notification in accordance with the resolution passed by the Managing Committee. The learned counsel would also emphasize that many of the members have not been issued with identity cards. Despite requests and queries being made at the various General Body Meetings, no procedure as such has been put in place by the Managing Committee, to properly issue identity cards to all the members in the 14 districts. When members are enrolled at the respective W.P.(c) No.532 of 2014 7 Offices in the district, in which, they were appointed, it would not be proper for the Managing Committee of the Society to contend that they should receive the identity cards from the Head Office at Ernakulam, is the contention of the additional 6[th] respondent. 7. The petitioner would rely on _**George Kuruvilla v. Kerala State Co-operative Election Commission**_ **(2010(1) KLT 967)** , to contend that the non-maintenance of 6B Register alone cannot be a reason to stall an election process since the issued identity cards could very well be verified, on comparison with any other validly issued identification cards, as laid down by the Division Bench. 8. The learned Special Government Pleader (Co-operation) would rely on **V.S.S.C. Employees Co-operative Society v. Registrar and others (1993 (2) KLJ 89)** , and **Saji Joseph @ Sebastian M.J. and Others v. State of Kerala and Others(2010(3) KHC** W.P.(c) No.532 of 2014 8 **617)** , to contend that the maintenance of 6B Register and issuance of Form 6A identity cards is the mandate of the Act and since there is a specific procedure prescribed thereunder, it has to be done in that manner and not in any other. The powers of the Election Commission for over all supervision of the election process is urged placing reliance on _**Rajendran v. State Co-operative Election Commission**_ **(2004(1) KLT 1026)** and _**Mohanachandran Nair v. State Co-operative Election Commission**_ **(2013 (3) KLT 506** ). The prayer of the petitioner that in the context of the term of Office of the Committee expiring on 23.01.2014, there should be a direction to appoint an Administrative Committee from the members of the Manging Committee itself, is opposed on the strength of the dictum laid down in _**Board of Directors of Kottappady v. Joint Registrar and others Service Co-operative Bank**_ **(1994 KHC 269)** and _**Joint Registrar v.Chatha**_ **(1999(3) KLT 139).** W.P.(c) No.532 of 2014 9 9. As was noticed above, the elections to the respondent Society is held in all the 14 districts of the State and the 6B Registers of the members working in each of the districts will have to be transmitted to the respective districts for the purpose of polling. The members are also, as has been indicated above, enrolled on their appointment to the Department, at the respective Districts by their Head of Office and the share value is collected and transmitted to the Head Office of the Society at Ernakulam. It is to be specifically noticed that the admitted facts are that the respondent Society has on its rolls about 50,000 members out of which even as per the register now maintained by the respondent Society at its Head Office at Ernakulam, issuance of identity cards have been made only to 11,000 members. The contention of the respondent Society is that, it is incumbent upon the members to obtain identity cards by production of two photographs and the Society cannot and is not expected W.P.(c) No.532 of 2014 10 to go behind the members with the identity cards. It is also the contention that since as per Rule 16A, identity cards can be issued only to the individual member, the members are obliged to come to the Head Office of the respondent Society to get issued such identity cards. This view cannot be countenanced going by the provisions of the Act and Rules as also the nature of the Society, the area of operation and manner in which elections are conducted. 10. Rule 16A of the Rules specifically provided that a person admitted as a member shall be issued with an identity card in Form 6A. Such an identity card is the conclusive evidence of membership and only on production of the same under Rule 35A, would a member be issued with the ballot paper at the time of elections. True, the member has to furnish two copies of the recent photographs of passport size for issuance of such identity cards. When the enrollment is made compulsorily by the W.P.(c) No.532 of 2014 11 Head of Office of the new recruit, at his place of joining, it is not comprehensible as to why two photographs of the member also cannot be received by such Head of Office and transmitted to the Head Office of the Society for issuance of identity cards. 11. It is also to be noticed that though sub-rule 3 of Rule 16A provides for an acknowledgment by the member on issuance of an identity card to the member concerned itself, the Society ought to have devised a system by which, the members in the various parts of the State were issued with the identity cards. Reading of the provisions in Rule 16A would not persuade this Court to find that seeking issuance of membership cards is the sole duty of the member. It definitely is a right conferred on a member and none can be denied issuance of identity card, when sought for. When a Society enrolls members, certain rights and privileges are conferred on such member, including the valuable right of franchise. It W.P.(c) No.532 of 2014 12 would be incumbent upon the Society to issue such identity cards, especially since every activity of the member with reference to the Society being elections, availing of loans or any other benefits; the conclusive proof of membership is the identity card. A Society having failed to take steps to issue such identity cards to all the members, cannot later on turn around and contend that only such members, who were issued with the identity cards would be participated in the elections. 12. In fact the contention of the petitioner, who is a member of the Board of Directors as is evident from paragraph 20, is that most of the members would not be interested in exercising their franchise, especially since the Society is administered by Senior Police Officers with high ranks. Such an assumption by the petitioner, who is a member of the Board of Directors, presumed as the opinion of the Board of Directors; is totally unwarranted. The Society has only three category of members being 'A', W.P.(c) No.532 of 2014 13 'B' and 'C'. The rank of a member in the Department does not at all confer any special privilege so far as the elections to the Managing Committee are concerned, except any conferred by the bye-law for appointment of ex-officio office bearers. The democratic scheme visualizes a set up wherein each member of the Society has identical rights and liabilities except as otherwise categorized by the bye-laws. The mere fact that even in the last election only 5000 members are participated, cannot lead to a presumption that in the present election also such members who are alleged to have been issued with identity cards, ie: 20% of the total members; would be sufficient to ensure democratic conduct of elections to the Society, for carrying on its affairs; again, in a democratic manner. 13. In the instant case, what has been noticed by the Election Commission in Ext.P5 is that, what has been maintained as 6B Register in the Head Office of the W.P.(c) No.532 of 2014 14 respondent Society is only a copy of the Form 6A said to have been issued to the members. Form 6A and Form 6B contain the very same particulars, but the arrangement is in a different format. This difference is necessitated since Form 6A is in the form of a card while Form 6B requires entries to be made in a register. The different arrangement as vertical or horizontal is of no consequence and it cannot be said to be an illegality. But the submission of the official respondents, as also the additional respondent, is that, there is every chance that these Form 6A identity cards found in the registers were never issued to the members. Why else would such copies be maintained, without entering the particulars in a register; would in the circumstance be a valid question. It is the submission, that in such circumstance, especially going by what has been stated in Ext.P5 that a proper 6B register was maintained in the Bank only from 19.12.2012 and till 04.12.2013, there has been issuance of only 561 W.P.(c) No.532 of 2014 15 Form 6A cards, with proper entries in a Form 6B register; assumes significance. 14. The totality of facts disclosed, accentuated by the fact that what has been maintained in the Head Office of the Bank is an alleged copy of Form 6A, there is definitely a questionable conduct on the part of the outgoing Managing Committee. In this context, it is to be noticed that, the learned counsel for the petitioner produced the alleged register maintained at the Bank, for verification by this Court. What has been termed a register is merely a file folder in which, Form 6A identity cards have been placed by their serial number, wherein, by hand, they are indicated to be “copies”. Having verified the said registers, the finding of the Election Commission in Ext.P5 that proper 6B Registers have not been maintained and Form 6A identity cards have not been issued, cannot at all be said to be unreasonable or prevaricative. W.P.(c) No.532 of 2014 16 15. The contention of the learned counsel for the petitioner is that, the copies of the Form 6A contains the entire details which are mandated to be contained in Form 6B Register also, along with the photograph. The verification of such copies would be sufficient in the polling, whenever an objection is raised with respect to the identity of a voter/member, the learned counsel urges, placing reliance on _**George Kuruvilla**_ ( _supra_ ). The Division Bench, according to the learned counsel, laid down that non-maintenance of Form 6B Register alone, cannot be a reason to stall the elections and the identity cards issued could be cross-verified with any other identification cards like an election identification card issued by the State Election Commission, a Passport, a PAN Card and so on and so forth. 16. The facts disclosed in the above cited decision would indicate that the allegation in the said case was with respect to the names of persons who have been W.P.(c) No.532 of 2014 17 issued with identity cards, not having figured in the 6B Register. It is also to be noticed that out of the total of 68,000 members, 25,000 persons were issued with identity cards. When the Election Commission cancelled the election notified, for reason only of irregularity in the maintenance of Form 6B Register, the learned Single Judge directed the elections to be carried on, on the date of polling scheduled itself. The Division Bench, in appeal, found that such a direction ought not have been issued since the cancellation of the elections made by the Election Commission was notified and the learned Single Judge's order directing conduct of the election on the scheduled date, would not have been properly notified to all the members. 17. On the facts disclosed, it is true that a direction was issued that despite non-maintenance of Form 6B Register, the photo identity cards issued under Form 6A Register, could be cross-verified with any other identity W.P.(c) No.532 of 2014 18 cards. A total of 25,000 members issued with valid identity cards; but their names did not figure in the Register. Only in such context a cross-verification with any other identity card, in the context of non-maintenance of Form 6B Register, was directed by the Division Bench. 18. In the instant case, there is a valid suspicion raised, with respect to the issuance of identity cards itself, since Form 6A cards, in which form the identity cards are to be issued, is seen retained with the Head Office of the Bank terming the same as a 6B Register. The mere fact that an Officer of the Department, being an Assistant Registrar is appointed as the Secretary, cannot absolve the Managing Committee from its duty to ensure issuance of identity cards to all its members. It is also to be specifically noticed that as early as on 02.12.2012 and then again on 18.08.2013 many members had raised the issue of proper issuance of identity cards, in the General W.P.(c) No.532 of 2014 19 Body Meetings held on the said dates. It was specifically pointed out that when members are enrolled at the respective Districts in which they joined, the issuance of certificate also should be done by the Society, at their place of work through their Head of Office or any other duly authorized personnel of the Society. 19. The Managing Committee insofar as having not devised a system by which, such issuance of identity cards ought to have been ensured; definitely is in default in complying with the provisions of the Act and Rules. The reliance placed on _**George Kuruvilla** (supra)_ is not applicable to the facts of the above case and such a crossverification as indicated by the Division Bench in the said decision, cannot at all be made on the facts disclosed in the instant case. This is so since it is not the nonmaintenance of Form 6B Register alone that is alleged herein; but also a valid suspicion regarding issuance of identity cards. W.P.(c) No.532 of 2014 20 20. The principle that when the statute prescribes an Act to be done in a particular manner, the same has to be done in that manner or not at all requires no re-iteration. What is indicated by providing for issuance of Form 6A photo identity cards to members and maintenance of their particulars as also the photographs in a register maintained in the format of Form 6B appended to the Rules, is to ensure that there arise no dispute on the identity of a member. The Rule also prescribes the identity card to be conclusive proof and any member approaching the Society to avail of a service or any benefit conferred by the Society on its members, would necessarily have to prove his identity by production of the said card issued under Form 6A. The Managing Committee of the Society, cannot escape from its liability to issue such cards merely on the ground that, it is the duty of the Chief Executive Officer or on the premise that, it is the obligation of the member to get issued such W.P.(c) No.532 of 2014 21 identity cards. 21. The powers of the Election Commission as contemplated under Rule 35A, more specifically sub-rule (9) regarding superintendence, control and discipline of the conduct of the election definitely would extent to ensuring the democratic and proper conduct of elections. _**Mohanachandran Nair's** (supra_ ) was a case in which, this Court found that the maintenance of Form 6B Register and the discrepancies in the identity cards in the photographs affixed, is to the extent of effecting a fair election. The principle that then definitely the Election Commission could interfere with and keep in abeyance is equally apposite in the instant case also. 22. The learned Single Judge of this Court in the said decision had followed a Division Bench decision in _**Rajendran's**_ case( _supra_ ), wherein by statutory operation even inactive members who were earlier disabled from participating in the elections, were given the right to W.P.(c) No.532 of 2014 22 exercise their franchise; upon which the Election Commission cancelled the elections notified already, to facilitate such members who were granted the right to franchise by an amendment also, to exercise their right. In the instant case also, it has to be stated that the non-maintenance of Form 6B Register and the discrepancies pointed out by the Election Commission in Ext.P5, is to the extent, which would raise a valid and definite apprehension that there would not be a fair and proper conduct of elections. 23. On the facts disclosed in the above case, this Court is unable to persuade itself to interfere with Ext.P5 order of the Election Commission, cancelling the elections. The further prayer of the learned counsel appearing for the petitioner is that, in the context of this Court not being inclined to interfere with the cancellation as such, since the term of the Managing Committee is expiring, necessarily, the Managing Committee should be permitted W.P.(c) No.532 of 2014 23 to continue or at least the members of the Committee, which lays down Office should be allowed to continue as an Administrative Committee. The same is seriously opposed by the learned Special Government Pleader (Co-operation) placing reliance on _**Chatha(** Supra_ _**) and Board of Directors of Kottappady**_ ( _supra_ ). Two different Division Benches had deprecated such practice, under Article 226 of the Constitution of India, allowing the Managing Committee to continue in Office after the expiry of the term and the members of the Managing Committee being allowed to be continued as an Administrative Committee. The learned counsel for the petitioner, however, would contend that the same is not an inviolable rule especially since this Court has many a time directed the Joint Registrar to appoint the Administrative Committee from the existing members of the Managing Committee in Office. Suffice it to say, the facts disclosed in the present case, does not commend W.P.(c) No.532 of 2014 24 itself to this Court to issue such directions, which obviously comes within the realm of discretionary exercise of power. However, considering the State wide nature of the Society and the fact that an Assistant Registrar of the Society, is the Secretary, it is directed that an Officer of the Department, having rank above that of an Assistant Registrar, shall be appointed as the Administrator. The writ petition is devoid of merit and hence, stands dismissed with the above direction, leaving the parties to suffer their costs. Sd/- **K.VINOD CHANDRAN, JUDGE.** ln