G.R. Ajith v. Kerala State Co-operative Election Commission & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941** **WA.No.316 OF 2020** **AGAINST THE JUDGMENT DATED 18.02.2020IN WP(C) 3704/2020(K)OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **G.R.AJITH,AGED 45 YEARS,S/O. K. GOPALA PILLAI, MEMBERSHIP NO.42102, THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LIMITED NO.4348,ELAMKULAM, ERNAKULAM DISTRICT, PIN-682020, RESIDING AT MELLATUTPURATHU HOUSE, KOWDIAR POST, THIRUVANANTHAPURAM DISTRICT, PIN-695003.** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS/RESPONDENTS:** **1 THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION,3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O.,THIRUVANANTHAPURAM 695 033 REPRESENTED BY ITS SECRETARY.** **2 THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LIMITED NO.4348,ELAMKULAM,ERNAKULAM DISTRICT, PIN-682020, REPRESENTED BY ITS SECRETARY.** **3 THE PART TIME ADMINISTRATOR, THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LIMITED NO.4348,ELAMKULAM, ERNAKULAM DISTRICT, PIN-682 020.** - **4 THE ELECTORAL OFFICER,THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LIMITED NO.4348, ELAMKULAM,ERNAKULAM DISTRICT,PIN-682 020.** **5 THE RETURNING OFFICER, THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LIMITED NO.4348, ELAMKULAM, ERNAKULAM DISTRICT-682 020.** **SR.GOVERNMENT PLEADER SMT.REKHA K.R** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 20-02-2020, THE COURT ON 24-02-2020 DELIVERED THE FOLLOWING:** WA No.316/2020 2 ## **“C.R.”** ## **JUDGMENT** ## **Ravikumar, J.** The appellant/writ petitioner, who is a member of the 2[nd] respondent – Kerala Police Housing Co-operative Society Limited No.4348, has filed this writ appeal, aggrieved by the judgment of the learned Single Judge dated 18.02.2020 in W.P.(C) No. 3704/2020. It was filed seeking the following reliefs:- _“(i) Stay the operation of the judgment dated 18.02.2020 passed by the learned Single Judge in W.P.(C) No.3704/2020 and the election notified as per Ext.P8, pending disposal of the writ appeal,_ _(ii) Direct the respondents to conduct the election to the 2[nd] respondent society by using the identity cards issued by the society in Form 6A on the basis of the Form 6B Register 'maintained' in the office of the society, as verified y the 1[st] respondent, as evidenced by Ext.P3(a), pending disposal of the writ appeal.”_ ## 2. The facts in brief are as hereunder:- The appellant was the Vice President of the previous WA No.316/2020 3 Managing Committee of the 2[nd] respondent-Society, the term of which had expired on 13.09.2019. While the Managing Committee was in office, a resolution was adopted on 29.06.2019 proposing to conduct election to the Managing Committee of the Society on 08.09.2019. While so, the Registrar of Co-operative Societies passed Ext.P2 order dated 19.07.2019 cancelling the laminated identity cards issued by the Society in the year 2014 to members, and directing the Society to issue fresh identity cards in Form-6A, as mandated under Rule 16(A) of the Kerala Co-operative Societies Rules, 1969 (for short, 'KCS Rules'). 3. Earlier, W.P.(C) No.19507/2019 was filed by the Police Housing Co-operative Society, the 2[nd] respondent herein, aggrieved by the inaction on the resolution dated 29.06.2019, seeking for issuance of election notification in terms of the resolution dated 29.06.2019 of the Managing Committee. Challenging Ext.P2 order of the Registrar cancelling the identity cards already issued, it filed W.P.(C) WA No.316/2020 4 No.20692/2019. This Court, by Ext.P3 common judgment dated 30.07.2019, directed the Election Commission to take a decision as to the issuance of an election notification in terms of the resolution adopted by the Managing Committee. As regards the challenge against the cancellation of identity cards, the learned Single Judge left open the contentions of the petitioner therein to be pursued, if it is so required in future. Thereupon, the State Co-operative Election Commissioner issued Ext.P3(a) election notification dated 05.08.2019 proposing to conduct election to the Society on 08.09.2019. The Election Commission further held that issuance of plastic laminated identity cards is against the law laid down by this Court in W.P.(C) No.20033/2018, which was confirmed in W.A. No.2414/2018, and hence it is irregular. Direction was accordingly given to recall the plastic laminated identity cards and to issue fresh identity cards to the members of the Society. Ext.P3(a) was challenged in W.P.(C) No.21936/2019. However, observing that no further directions WA No.316/2020 5 are warranted and the petitioner therein could approach again on completion of exercise as ordered vide Ext.P3 judgment, if required, it was disposed of. According to the appellant, while steps in compliance with Ext.P3(a) were underway, the Electoral Officer issued Ext.P4 order dated 03.09.2019 rejecting the voters list submitted on 29.08.2019 and directing the Secretary of the Society to take appropriate steps to issue identity cards to the members of the Society. 4. The Society and the appellant filed W.P.(C) No.24187/2019 challenging Ext.P4 order of the Electoral Officer. By Ext.P5 judgment dated 05.09.2019, taking note of the fact that the term of the Committee was to expire on 13.09.2019, this Court directed the Registrar of Co-operative Societies to consider appointment of an Administrative Committee constituted by the three members of the present Managing Committee, against whom there were no complaints or pending proceedings. Appointment of a part-time Administrator was permitted only if constitution of an WA No.316/2020 6 Administrative Committee, in terms of the direction, became impossible. The proposed Administrative Committee/part-time Administrator was directed to adopt fresh resolution for conduct of election to the Managing Committee and the Election Commission was directed to hold elections not later than 60 days from the date of receipt of such a resolution, as per Ext.P5 judgment. 5. According to the appellant, the Registrar, instead of appointing an Administrative Committee as directed in Ext.P5 judgment, appointed a part-time Administrator as per Ext.P6 proceedings dated 16.09.2019. W.P.(C) No.26759/2019 was then preferred against the appointment of part-time Administrator by Ext.P6 proceedings. The said writ petition is pending. In the present writ petition, wherefrom the captioned appeal has been preferred, the appellant alleged that the parttime Administrator had acted arbitrarily inasmuch as Form-6A and Form-6B identity cards and Register were issued in pamphlet forms and that too, only to a particular group. Form- WA No.316/2020 7 6B Register which is required to be in book form is being maintained in loose sheets, it was contended. Further contentions raised in the writ petition were as follows:- Form-6B Register which is to be numbered serially, cannot be a compilation of loose sheets. As per procedure, members have to come to the Society personally to receive identity cards. Soft copies of Form-6A and Form-6B are issued in pen drive enabling large scale manipulations. While the part-time Administrator was continuing with the process of issuance of new identity cards, which action, according to the appellant, was being done illegally and with an illegal motive, Ext.P8 election notification was issued by the Election Commission on 20.01.2020. In tune with the schedule fixed thereunder, and preliminary voters list was published as per Ext.P9 on 24.01.2020. In fact, Districtwise preliminary voters list was published. The case of the appellant is that verification of the list of voters of each district consists names of a large number of retired police personnel, police personnel WA No.316/2020 8 who were transferred to other districts, persons who quit the service as also who are no more. Exts.P9 to P9(m) are copies of relevant pages of preliminary list of voters pertaining to all the districts, produced in a bid establish the aforesaid contentions. Raising such aspects, the appellant submitted Ext.P10 objections. Exts.P10 to P10(v) are objections submitted by members of the Society to the Electoral Officer, against the preliminary voters list. However, Exts.P11 to P11(m) are the final voters lists in respect of all the districts published on 04.02.2020 without considering such objections. The appellant, along with 66 other members, preferred Ext.P12 representation before the State Co-operative Election Commission requesting to conduct the counting of the votes polled in each district in the respective district centre itself as has been done in the previous elections and to bring such results to the office at Ernakulam and to announce the results after consolidating and tabulating the lists from all the centres. 6. Respondents 2 and 3, the Society and the part-time WA No.316/2020 9 Administrator, filed counter affidavit and opposed the writ petition. Respondents 2 and 3 stated that large number of bogus identity cards were issued by the previous Managing Committee and thereby, made cancellation of those defective identity cards and issuance of fresh identity cards to the eligible members, necessary. They further stated that in a preliminary report submitted pursuant to an enquiry conducted under Section 66 of the KCS Act, it was found that more than 7000 members had not received identity cards in spite of making applications therefor and putting their signatures in 6B Register. Counting of the election as per convention, is proposed to be conducted in a centralised centre at Ernakulam and that it is incorrect to say that in the previous elections, counting was done in each district centre. Among other contentions, it is also contended that the dispute raised by the appellant essentially relates to election to a Cooperative Society and since election proceedings were already commenced, the dispute can be legally adjudicated only in a WA No.316/2020 10 proceeding under Section 69 of the Kerala Co-operative Societies Act and not otherwise. It is also contended that the appellant had not alleged or established any infringement of any of his rights, leave alone any fundamental or statutory rights. It is stated in the counter affidavit filed by the 2[nd] and 3[rd] respondents that alleged discrepancies crept in the preparation of draft voters' list were taken note and remedied by deleting erroneous entries in the draft voters' list, which were specifically mentioned in the objections. 7. The learned Single Judge, after hearing the parties, held that mere vague allegations regarding erroneous entries in the draft voters list cannot be expected to be acted upon by the Electoral Officer. It is further held that the contention that a Register in Form-6B as mandated in Rule 16A of the Kerala Co-operative Societies Rules must necessarily be a bound book, cannot be accepted. As regards counting of votes in a centralised centre in lieu of simultaneous counting at the polling locations, the learned Single Judge concluded that WA No.316/2020 11 under Rule 35A(6)(o) of the KCS Rules, discretion is conferred on the Returning Officer to defer the counting of votes to a date later than the date of culmination of the polling process in the absence of materials to suggest that the decision of the Returning Officer is vitiated by malafides or other extraneous consideration. The Court would have to defer to the wisdom of the statutory authority in the exercise of the statutorily conferred jurisdiction. Holding thus, the writ petition was dismissed by the learned Single Judge. 8. We have heard the learned counsel for the appellant, counsel for respondents 2 and 3 and learned Standing Counsel for respondents 4 and 5. 9. The learned counsel for the appellant argued that Form-6A Register mandated under Rule 16A should be in a Register Form/Bound Book form. Maintaining the Register in any other form would defeat the very purpose of maintenance of Register, it is contended. The learned counsel further argued that the identity cards duly issued begins with numbers WA No.316/2020 12 001001 and no member was issued identity cards carrying numbers beginning with such digits as per the Register maintained by the Society. In other words, the admission numbers given in the newly issued identity cards do not tally with the admission numbers in the Registers of the Society and in the names published in the electoral roll. In such circumstances, if election is conducted with such newly issued identity cards, the entire election would be vitiated. 10. The learned counsel for respondents 2 and 3 contended that the part-time Administrator, after assumption of office, found that the previous Managing Committee had indulged in large scale manipulations in the matter of maintenance of membership Registers as well as in the matter of issuance of identity cards. A large number of scanned signatures and photographs were found in the system maintained in the Society. As regards maintenance of Register of membership, the learned counsel argued that since the members of the Society spread across 14 Revenue WA No.316/2020 13 Districts in the State, it is impossible to maintain one single Register of memberships. If the Register is maintained in book form, it would be impossible to verify the identity card with the Register when polling is to be conducted at different District Centres. As regards the membership numbering beginning with 001001, the learned counsel pointed out that such numbering is the result of digitilisation of the membership register and that by itself cannot be said to be illegal or a factor vitiating the election process. Furthermore, the objection to such numbering is not raised either in the writ petition or in the pleadings in the present writ appeal and it is raised only during the course of argument and therefore, such a contention unsupported by pleadings cannot be entertained. The learned counsel for respondents 2 and 3 also pointed out that no member other than the appellant has raised any complaint on these matters and in the circumstances, no interference with the election process is warranted at this point of time. WA No.316/2020 14 11. This Court put a pointed question to the learned Standing Counsel appearing for the Election Commission as to whether election can be conducted properly and fairly with the Form-6A identity cards, Form-6B Register kept in the Society and the digitilised admission numbers given in the identity cards. The learned Standing Counsel for the Election Commission submitted that election can be conducted in a free and fair manner in view of the steps taken by the part-time Administrator. The learned Standing Counsel for the Election Commission also pointed out that other than Ext.P12 representation from the appellant, the Election Commission has not received any complaint whatsoever from any other member of the Society and the apprehensions of the appellant are unfounded. 12. We have already adverted to the facts and the relevant rival contentions. Bearing in mind the factual position and the relevant contentions we will now refer to the authorities on the subject, which are relevant for the purpose WA No.316/2020 15 of considering the question when the election process commenced reached to the stage of polling whether this Court would be justified in interfering with the election process? In the case on hand, polling is scheduled to be held on 25.02.2020. True that there is no inflexible law impeding interference by this Court with an election process at any particular stage and if the illegality crept in the electoral roll is one which would go to the route of the matter, certainly this Court can interfere with the election process. We may hasten to add that normally this Court would be loath to interfere with an election, when the election is scheduled and all arrangements therefor, have been made for conducting it on the scheduled date. In **Jayavarma K. v. State Co-operative Election Commission and others** [2017 (2) KHC 190], a Division Bench of this Court held that a writ petition could be entertained only on well settled paramaters inorder to correct or smoothen the progress of election. However, errors which do not have effect of interfering with free flow of scheduled WA No.316/2020 16 election could be challenged only in an election dispute. In the said decision, it is further held that when questions posed for consideration could not be termed as pure questions of law without reference to the factual situation, the parties could be relegated to the alternative remedy of arising a dispute under Section 69(3) of the KCS Act. 13. In this context, a decision of a Division Bench of this Court in **Thiruvalla East Co-operative Bank v. State Cooperative Election Commission** reported in [2017 (1) KLT 921] is also assumes relevance. A scanning of the said decision would reveal that this Court had actually reiterated the view in **Jayavarma** 's case therein. It was held that errors which did not have the effect of interfering with the free flow of scheduled election could be challenged only in an election dispute. Further, it was held therein that a writ court should act with the circumspection as the inevitable consequence of not holding an election in time would be the advent of an Administrator. WA No.316/2020 17 14. In the circumstances, it is also relevant to refer to the observations of this Court in the said decision made relying on the principles laid down by the Hon'ble Apex Court. The Division bench referred to a decision of a single Bench of this Court in **Santhosh v. State Election Commission** reported in [2015(4) KLT 710]. That apart, the Division Bench considered the decision of the Apex Court in **Sri. Sad Sadguru Janaradhan Swami Sahakari Dugdha Utpadan Sanstha and another v. State of Maharashtra** reported in [(2001) 8 SCC 509] and also in **Election Commission of India v. Asok Kumar** and others reported in [AIR 2000 SC 2979]. It will be appropriate to refer to paragraph 10 of the decision in **Thiruvalla East Co-operative Bank** case supra and it reads thus:- “10. **Ashok Kumar** 's case (supra) was followed in **Santhosh v. State Election Commission** (2015 (4) KLT 710) in relation to an election under the Panchayat Raj Act, 1994 (Kerala). The said judgment rendered by one of us has been affirmed by the Division Bench in W.A. No. 339/2016 WA No.316/2020 18 filed by the State Election Commission and another. There is no reason as to why the salutary principles laid down by the Supreme Court should not apply for an election to a Co-oeprative Society as well. Thus a Writ Petition can be entertained on the well settled parameters in order to correct or smoothen the progress of the election. The instance of rejection of the nomination on tatally untenable grounds is an example which could be rectified without upsetting the election calendar. But errors which do not have the effect of interfering with the free flow of the scheduled election can be challenged only in an election dispute. A writ court should act with circumspection as the inevitable consequence of not holding an election in time is the advent of an Administrator. The appointment of an Administrator in lieu of an elected Managing Committee should be the last resort in a democratic process. It should be borne in mind that **Ashok Kumar** 's case was decided in the context of a constitutional bar to call in question the process of election. The principle therein should apply _fortiori_ when an alternate remedy well exists under the Act to question the process of election to a society registered.” (underline supplied) 15. In view of the exposition of law by the Hon'ble Apex Court as also by this Court in the abovementioned decisions WA No.316/2020 19 on the issue we do not think it necessary to burden this judgment with further authorities. This is in view of the fact that this has been constant view of this Court in the matter of elections scheduled to be conducted on a particular date and in respect of which all arrangements were made. 16. In the case on hand, earlier while the outgoing managing committee was in office they passed a resolution on 29.06.2019 proposing to conduct election to the Managing Committee of the second respondent-Society on 08.09.2019. In view of the situations referred in detail above, election could not be conducted on the appointed day. However, the fact is that subsequently this Court, as per Ext.P5 judgment in WP(C) No. 24187/2019, directed the Administrative Committee/Parttime administrator appointed whoever takes charge of the management of second respondent Society in terms of provisions under Section 33 of the KCS Act, to pass a resolution to conduct election to the second respondent Society within a period of one month from the date of WA No.316/2020 20 assumption of office. The Election Commission was also directed to conduct election in terms of directions issued therein. To say succinctly, it is in compliance with the directions that resolution was passed by the part-time administrator and election is scheduled to be held on 25.02.2020. We have already taken note of the fact that one of the contentions of the appellant is that pursuant to Ext.P8 election notification, a preliminary voters list was published as per Ext.P9 on 24.01.2020 and the objections filed were not seriously looked into. But the fact is that the appellant had not filed objection against Ext.P9 preliminary voters list and thereafter Ext.P11 final voters list was published on 04.02.2020 and election is scheduled to be held on 25.02.2020 based on the said final voters list. 17. The question is whether in such circumstances, the Electoral Officer could be directed to consider the objections against the preliminary voters list and to enable such consideration whether the election should stalled. The WA No.316/2020 21 position with respect to the aforesaid issue is no longer res integra. In the decision of this Court in **Abraham K. Mathew v. Returning Officer** reported in [2009 (2) KLT 249] it was held that though the Electoral Officer is entitled to consider objections and eligibility of persons included in preliminary voters list, he could not exercise the said power once the final voters list is published. Thus it is obvious that with the publication of Ext.P1 final voters list, the Electoral Officer ceased to have power to consider the objections against the preliminary voters list. 18. The facts explained earlier would reveal that the tenability or veracity of the contentions raised in this writ petition could not be described as pure questions of law and we have no hesitation to hold that without reference to the factual position they could not be decided. When the statute specifically provides for adjudicatory mechanism in relation to dispute relating to election wherein factual dispute also could be adjudicated after providing opportunities to all concerned to WA No.316/2020 22 adduce evidence there is no reason or justification in interfering with the process of election at this stage. 19. We are of the view that in the circumstances obtained as above and in view of the decisions referred (supra) the decision of the writ court to decline interference can only be taken as a rightful and lawful decision. In case the petitioner is having any persisting grievance, it is for him to raise it appropriately after the election, in accordance with law. In the result, this appeal must fail and consequently it is dismissed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **N. NAGARESH JUDGE** **aks/ncd**