E.K. Anil Kumar v. The Kerala State Co-operative Election Commission & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 3RD DAY OF MARCH 2014/12TH PHALGUNA, 1935** ## **WA.No. 371 of 2014 () IN WP(C).532/2014 -----------------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN WP(C) 532/2014 of HIGH COURT OF KERALA DATED 21-01-2014** **APPELLANT(S)/PETITIONER:** **----------------------------------------------** **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)/RESPONDENTS:** **----------------------------------------------------** **1. THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, OFFICE OF THE KERALA STATE ELECTION COMMISSION THIRUVANANTHAPURAM.** **2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM.** **3. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES ERNAKULAM.** **4. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANAYANNUR, ERNAKULAM-682011.** **5. THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LIMITED NO.4348, ERNAKULAM-682001, REPRESENTED BY ITS SECRETARY.** **6. M.SOMANATHAN, MEMBER, THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY, LIMITED NO.4348, ERNAKULAM, RESIDING AT SUMTHRUPTHI, MUNDELA P.O, VALLANAD, THIRUVANANTHAPURAM DT.** **R6 BY SRI.GEORGE POONTHOTTAM R1 TO R4 BY SPL. GOVERNMENT PLEADER SRI.D.SOMASUNDARAM** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.A.NO.371/14** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **ANNEXURE A1: TRUE COPY OF the NOTE ISSUED IN THIS REGARD DT 12.5.11.** **ANNEXURE A2: TRUE COPY O THE PASSPORT OF MEN QUITTING THEIR STATION.** ## **//True Copy//** **PA to Judge** **Rp** ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. ============================== Writ Appeal No. 371 of 2014 ====================** ## **Dated this the 3[rd] day of March, 2014** ## **J U D G M E N T** ## Antony Dominic, J. Heard the learned counsel for the appellant, learned special Government Pleader appearing for respondents 1 to 4 and learned counsel appearing for the 6[th] respondent. 2. This appeal is filed aggrieved by the judgment of the learned Single Judge dismissing WP(C) No.532/14 filed by the appellant. The writ petition was filed by the appellant challenging Ext.P5 order passed by the 1[st] respondent, Kerala State Cooperative Election Commission declining the request of the Society to conduct election to its Board of Directors on 18/1/14 and the reason stated in Ext.P5 is the alleged irregularity in the issuance of ID cards in Form 6A and non maintenance of Form 6B register. The learned Judge upheld the order and it is in these circumstances, the writ appeal is filed. 3. The first contention raised by the learned counsel for the appellant was that all members of the society have been issued ID cards and that therefore the factual basis on which **W.A.No.371/14** **: 2 :** Ext.P5 order has been issued is erroneous. However, this contention of the learned counsel is not only one which was not urged before the learned Single Judge but also is against his own pleadings as contained in Ground B of the writ petition, where it has been averred thus; _“It is submitted that the society is having a total membership of 49975 and out of which 11332 persons are issued with identity card including to the complainant.”_ 4. Further, the materials before the learned Single Judge and the findings in the judgment under appeal also show that in the previous General Body meetings, members have raised the issue of non issue of ID card to all members. In the light of these facts, it cannot be argued by the appellant that members of the society have all been issued ID cards as claimed before us. 5. The second contention raised by the learned counsel for the appellant is that Rule 16A and the provisions of Rule 35A (9) of the Kerala Co-operative Societies Rules provide for separate and independent powers and duties and that if these two rules are read, it can be seen that the issuance of the ID cards need be **W.A.No.371/14** **: 3 :** stopped only before two days prior to the date of poll. Therefore, according to him, even if it is a case where the ID cards have not been issued to all the members of the society, it is not necessary that the election should be stopped on that count. However, we are unable to agree with this contention and if this contention is accepted, the result would be that the provisions of Rule 16A would be rendered otiose. Rule 16A which provides for the issue of ID cards reads thus; _“_ _**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_ **W.A.No.371/14** ## **: 4 :** _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._ _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 up to 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.”_ Reading of this provision shows that a person admitted as a member of a society shall be issued with an ID card, which shall be conclusive proof of his membership in the society. Such ID card shall be in Form 6A only. The rule also requires that the two photographs which are to be produced by the member shall be attested by the Chief Executive of the Society or an officer specially empowered in that behalf by the Committee of the Society. Further, the rule also provides that one copy of the duly **W.A.No.371/14** ## **: 5 :** attested photograph shall be affixed in the ID card and the other copy shall be affixed in the Register in Form 6B. Only a member who produces his identity card shall be issued ballot paper. 6. Therefore, Rule 16A(1) provides for the mandatory issuance of the ID card, the manner of issuing ID card and also the time limit within which the same shall be issued by the Society. It is true that in Rule 35A, which provides for the procedure regarding the conduct of election to the committee of Societies, Sub Rule (5) has been incorporated, which reads thus; _“35A(5) The persons included in the voters list should be supplied with the identification cards (in Form No.6A) on request of the member who will bring 2 passport size photographs, recently taken. The issue of identification cards shall be stopped before 2 days prior to the date of poll. The Chief Executive of the Society is responsible for the issue of identification cards to the members. Any complaint in this regard will be entertained by the [Electoral Officer] who shall take a decision on the complaint before two days prior to the date of poll.”_ Reading of this provision shows that persons included in the voters list should be supplied with the ID cards on request of the **W.A.No.371/14** ## **: 6 :** member and such issue shall be stopped before two days prior to the date of poll. As is evident from the Rule itself, unlike in the case of Rule 16A which obliges the society to issue ID cards, sub rule 5 mentioned above provides for the issue of ID cards at the request of the member who is included in the voters list. 7. To our understanding, the provisions of sub rule (5) talks about the case where a member, who, for some reason or the other, has not received the ID card, makes a request and on that basis ID card is issued. In other words, Rule 35A(5) does not in any manner dilute the mandatory provisions contained in Rule 16A and therefore sub rule 5 cannot be relied on by the appellant to contend that the non issuance of ID card need not be taken as a reason against the Society from proceeding with the conduct of the election. 8. The third contention raised by the learned counsel for the appellant was that the Election Commission does not have power anywhere in the Act to stop election on an issue such as irregularity, non issuance of electoral ID cards or maintaining Form 6B Register. According to the learned counsel, none of the **W.A.No.371/14** ## **: 7 :** provisions contained in Section 28B of the Act, Rule 35A or Rule 35B enabled the Election Commission not to act upon the resolution passed by the Society. Section 28B provides for the constitution of State Co-operative Election Commission and Section 28B(1) provides that the Election Commission shall be constituted for the superintendence, direction and control of the preparation of electoral rolls and for the conduct of all elections to Co-operative societies including election to the President/Vice President and Representative General Body. This provision, which alone is of relevance in the context, reads thus; _“_ _**28B. State Co-operative Election Commission-** (1) Notwithstanding anything contained in this Act or in the Rules, the Government shall by notification in the Gazette, constitute a State Cooperative Election Commission for the superintendence, direction and control of the preparation of electoral rolls and for the conduct of all elections to cooperative societies including election to the president/Vice President and Representative General Body.”_ Rule 35A dealing with the procedure regarding conduct of election **W.A.No.371/14** **: 8 :** contains sub rule 9 which states that the Election Commission shall have powers to issue any directions, guidelines or instructions for the conduct of election to the societies and also to the officers appointed to perform the election duties. This sub rule, being of relevance, is extracted below for reference; _“(9) The Election Commission shall have 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. The officers appointed on election duty shall be subject to the superintendence, control and discipline of the Election Commission.”_ Further, Rule 35B provides that the State Co-operative Election Commission shall have power of superintendence, direction and control of the conduct of election to the committees of all Credit, Apex, Central and Federal Societies. This rule reads thus; _“_ _**35B. State Co-operative Election Commission-**_ _(1) The State Co-operative Election Commission shall be appointed by Government by transfer or deputation._ _(2) The State Co-operative Election Commission shall have the power of superintendence, direction_ ## **W.A.No.371/14** **: 9 :** _and control of the conduct of election to the committees of all Credit, Apex, Central and Federal Societies.”_ 9. These provisions of the Act and the Rules confer power of superintendence, to issue directions and power to control the conduct of election on the State Co-operative Election Commission. In exercise of such power, Election Commission has also issued Circular No.9/12, issuing guidelines for the conduct of election and it also deals with the issues relating to ID cards and maintenance of Form 6B Register and according to the circular, only if ID cards are issued and register is maintained, election would be conducted to the Board of members of the society. 10. In the light of the provisions of the Act and the Rules, it cannot be argued that Ext.P5 order issued by the Commission declining to act upon the resolution of the society for the conduct of the election, for the non issuance of the ID cards and improper maintenance of the register is beyond its powers. In fact, a similar issue has been considered by a Division Bench of this Court in _**Rajendran v. State Co-operative Election Commission**_ (2004 (1) KLT 1026), where, in para 9, it has been held thus; **W.A.No.371/14** **: 10 :** _“9. There is no merit in the contention of the appellant that the first respondent Commission had no jurisdiction to issue Ext.P2 Circular directing to stop the election proceedings. The State Co-operative Election Commission was constituted under S.28B of the Act. According to S.28B of the Act, notwithstanding anything contained in the Act or in the Rules, the Government shall by notification in the Gazette constitute a State Co-operative Election Commission for superintendence, directions and control of the conduct of elections to the committees of all credit, apex, central and federal societies in the State. Hence the powers and functions of the State Co-operative Election Commission included "the superintendence, directions and control of the conduct of elections" to the Committees of the Societies. Therefore, it is the duty of the State Co-operative Election Commission to ensure that election to the Committees of the Societies are conducted strictly in accordance with the provisions of the Act. When it came to the notice of the first respondent that notwithstanding the amendment to S.20 of the Act with effect from 4.5.2002 making every member of a Society eligible to vote in the affairs of a Society, elections were going to be held based_ **W.A.No.371/14** **: 11 :** _on voters' list published on or after 4.5.2002 including only active members, the first respondent had the power and duty to take cognizance of such illegality in the preparation of the voters' list and to ensure that elections are held in accordance with law, after removing the illegality and publishing the voters' list in accordance with the provisions of S.20 of the Act. It was in exercise of the said power and duty of the first respondent that the directions contained in Ext.P2 Circular were issued by the first respondent. Hence, in our view, the first respondent had the competence and jurisdiction to issue Ext.P2 Circular and he was fully justified in issuing the said Circular.”_ This judgment has been followed by a learned Single Judge of this Court in _**Mohanachandran Nair v. State Co-operative Election Commission**_ (2013(3) KLT 506) also. 11. In the light of the above, this contention raised by the learned counsel appearing for the appellant also deserves to be rejected and we do so. 12. However, as contended by the learned counsel for the appellant, even if the Election Commission has declined to act **W.A.No.371/14** **: 12 :** upon a resolution of the society and schedule of election, it is necessary that the situation should be remedied. In view of this, we directed the learned Special Government Pleader (Cooperative Societies) to obtain instructions from the Administrator appointed on the further action that he has taken and the time limit that is required to complete the issuance of ID card, to regularize the Form 6B Register and to complete the election. Thereupon, he has obtained instructions and informed us that Form 6A ID cards will be issued to the members and Form 6B Register will be prepared and that this process will be completed before the end of May, 2014. He has also undertaken that the election process will be completed by the end of July, 2014. We record the submission and direct that the schedule undertaken before us be honoured in its letter and spirit. 13. Learned counsel for the appellant made reference to Annexures A1 and A2 produced along with IA No.249/14 and contended that after assumption of office, appointments are being made by the Administrator. This contention has been answered by the learned Special Government Pleader by stating ## **W.A.No.371/14** **: 13 :** that there is no permanent staff appointed on the rolls of the society and that the staff requirements are met by deputation from Co-operative department and by making temporary appointments. We record the submission and also direct that no permanent appointment of any nature shall be made by the Administrator during his tenure. With the above direction, the appeal is dismissed. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **JUDGE** ## **ANIL K. NARENDRAN** Rp **//True Copy//** **PA TO JUDGE**