## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR**
**&**
**THE HONOURABLE MR.JUSTICE N.NAGARESH WEDNESDAY, THE 07TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941**
## **WA.No.1751 OF 2019**
**AGAINST THE JUDGMENT IN WP(C) 20517/2019(L) DATED 02.08.2019**
## **APPELLANTS/PETITIONERS:**
**1 H.KRISHNAKUMAR AGED 52 YEARS S/O.HARIHARA IYER, KRISHNALAYAM, KUDAMALOOR P.O., KOTTAYAM. 2 P.R.RAJESH,PULICKAL VEEDU, VENNIMALA, PAYAPPADY P.O., KOTTAYAM. 3 K.J.JAYESH KUMAR, KUTHIRAPANTHIYIL, MARIYATHURUTHU P.O., KOTTAYAM.**
**BY ADVS. SRI.T.A.SHAJI (SR.) SRI.ATHUL SHAJI SRI.SREEDEV U**
## **RESPONDENTS/RESPONDENTS:**
- **1 THE STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ITS ELECTION COMMISSIONER, 3RD FLOOR, CO-BANK TOWERS, PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033.**
**W.A.1751/2019**
2
**2 ELECTORAL OFFICER TO DEVASWOM BOARD EMPLOYEES CO-OPERATIVE SOCIETY (LIMITED) K-458, ETTUMANOOR P.O., KOTTAYAM-686631, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM-686001.**
- **3 RETURNING OFFICER,**
**DEVASWOM BOARD EMPLOYEES CO-OPERATIVE SOCIETY (LIMITED) K-458, ETTUMANOOR P.O., KOTTAYAM-686631, UNIT INSPECTOR, ETTUMANOOR, OFFICE OF ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTTAYAM-686001.**
- **4 DEVASWOM BOARD EMPLOYEES CO-OPERATIVE SOCIETY (LIMITED) K-458,**
**ETTUMANOOR P.O., KOTTAYAM-686631, REPRESENTED BY ITS SECRETARY.**
## **BY ADVS.**
**SRI.GEORGE POONTHOTTAM (SR.)-R4 SMT.NISHA GEORGE-R4 SRI.LAKSHMI NARAYAN, SC-R1 TO 3**
**SR GP - SMT K.R DEEPA.**
**THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**W.A.1751/2019**
3
## **JUDGMENT**
_Ravikumar, J._
This intra-court appeal is directed against judgment dated 2.08.2019 in W.P.(C) No.20517 of 2019. The appellants/petitioners are dissatisfied with the manner of disposal of the writ petition as per the impugned judgment and hence, they come up in appeal raising various contentions. The nub of the contention raised before the learned Single Judge as also in this appeal would reveal that according to them, there is patent illegality in the voters list inasmuch as it is not one prepared adhering to the provisions under Rule 35A(4) of the Kerala Co-operative Societies Rules (for short 'the KCS Rules'). In such circumstances, no election based on such a voters list could be conducted, it is submitted. As per the impugned judgment, taking into account the rival contentions and taking note of the factual aspects obtained, the learned Single Judge disposed of the writ petition on the following lines:-
**W.A.1751/2019**
4
“8. In the afore circumstances, I direct the Electoral Officer to have a look at the Voters' List and then decide if any changes to it has to be made; and if, for any reason, it is found that the information of certain members are not either accurate or complete, then such members will be allowed to cast their votes only in a separate box, after finalising a proper proceeding listing the names and membership numbers of such members and the reasons why they ought to be excluded; so that the petitioners will obtain sufficient opportunity to invoke their alternative remedies after the elections are over.
It is made clear that in any event of the matter, even if no changes are made to the Voters' List by the Election Commission after the afore exercise, the persons whose addresses or fathers'/husbands' name are missing from the Voters' List as of now will be allowed to cast their votes only in a separate box in the ensuing election; and these boxes as well as those as per the afore directions will be counted and maintained separately while declaring the results of the elections. ”
2. Heard the learned senior counsel appearing for the appellants, the learned senior counsel appearing for the fourth respondent and the learned standing counsel appearing for respondents 1 to 3. In the light of the contentions raised before us, it
**W.A.1751/2019**
5
is only proper to refer to the relevant facts required for a disposal of this appeal. Ext.P1 is the election notification dated 1.7.2019. Going by the same, election is scheduled to be held on 7.8.2019. Evidently, as contemplated under Rule 35A(4) of the KCS Rules, the list of persons qualified to vote was furnished to the Electoral Officer by the Chief Executive of the fourth respondent-society. The Electoral Officer had thereupon published the preliminary voters list. Objection, if any, against the preliminary voters list was to be submitted on or before 10.7.2019. Ext.R4(d) would reveal that till the expiry of the time on the date fixed for receipt of objection, no objection was received against the preliminary voters list and in such circumstances, the Electoral Officer published the preliminary voters list itself as the final voters list. Today is the date fixed to conduct election to the fourth respondent-society pursuant to Ext.P1 notification. It is to be noted that though the petitioners would contend that they filed objection within the time stipulated therefor, there is absolute absence of any material to establish the said
**W.A.1751/2019**
6
contention. At the same time, the materials on record would reveal that objections were filed against the preliminary voters list only on 22.7.2019, much after the date fixed for receipt of objection against the preliminary voters list. In such circumstances, evidently, the Election Commission decided to go ahead with the election as scheduled. It is alleging inaction pursuant to the filing of objection on 22.7.2019 that the petitioners/appellants herein approached this Court by filing W.P.(C) No.20517 of 2019 which came to be disposed of as per the impugned judgment on the aforementioned lines.
3. Though the learned senior counsel appearing for the appellants contended that within the time stipulated for receipt of objection against the preliminary voters list the appellants/writ petitioners filed objection, as already noticed, there is no material supporting the said contention. That apart, going by Ext.P1 election notification, polling is scheduled to be held today viz., on 7.8.2019 from 11 a.m to 11 p.m. The appellant has brought up the matter for admission today and in fact, voters must have reached the polling
**W.A.1751/2019**
7
station by now. Taking into account all such circumstances, we unhesitatingly hold that postponement of the election which is to be commenced in a shortwhile is totally out of question. As stated hereinbefore, the materials on record would reveal that the petitioners made objection on 22.7.2019 against the preliminary voters list. Thus, it is clear that the objections were filed not within the time; but much later than the date and time fixed for receipt of objection against preliminary voters list. The learned senior counsel for the appellants pointed out that in the case of about 8% of the members, their fathers'/husbands' names are missing in the voters list and in the case of some others, the address is either incomplete or incorrect. It is taking into account the said submission and after going through the voters list published that the learned Single Judge rendered the impugned judgment. It was held in paragraph 5 as hereunder:-
“When I consider the afore submissions, it is incontestable that as per the KCS Rules, certain mandatory information are required to be maintained in the Voters' List. It is also indubitable that the statutory responsibility of ensuring that the Voters' List is complete and
**W.A.1751/2019**
8
proper is on the Electoral Officer, going by the mandate of Rule 35A(4) of the KCS Rules. Therefore, as long as the electoral officer does not find the Voters' List to be in any manner at fault or in error it would not be proper or prudent for this Court to intervene in the process once the election has been notified, going by the judgment of the Hon'ble Supreme Court in **Shri Sant Sadguru** (supra).”
Thus, it is evident that the learned Single Judge declined to interfere with the election process, in the sense, to postpone the same in view of the decision of the Apex Court in **Shri Sant Sadguru v. State of Maharashtra and others [AIR 2001 SC 3982]** . In the said context, certain other aspects also require consideration. There is no dispute with respect to the fact that prior to 10.7.2019, the date fixed for receipt of objection against the preliminary voters list, it was duly published by the Electoral Officer. The submission of the appellants is that in respect of certain members, their father's/husband's names are missing in the list and in the case of some others, the address is either incomplete or incorrect. Evidently, such submissions are made to canvass the position that final voters list cannot be said to be one
**W.A.1751/2019**
9
drawn strictly adhering to the mandatory provisions under Rule 35A(4) of the KCS Rules. We have already noted that though the last date for submission of objection to the preliminary voters list was fixed as 10.7.2019, there is absolutely no materials before us to hold that the appellants had actually submitted objections prior to 22.7.2019. In other words, going by the materials, objections were filed only on 22.7.2019. The question is whether the petitioners would be justified now, in contending that they were actually deprived of an opportunity to make a meaningful objection to the preliminary voters list. With the materials on record, we have no hesitation to hold that the appellants cannot be heard to contend that they were not in a position to make meaningful objection against the preliminary voters list. It may be true that the purpose of giving such details viz., voters name and address of a voter is to identify the voter concerned. But at the same time, when in a voters list in respect of any particular voter, if the father's/husband's name is not given that by itself is sufficient to anyone to raise a meaningful objection against such a preliminary
**W.A.1751/2019**
10
voters list. When such be the situation obtained in the case, the question is whether election should be postponed by entertaining the contentions raised in an appeal moved on the very day of election? The constant and consistent view of this Court is that once the election process is commenced, the Court shall not intervene in the process of election except in exceptional circumstances. That apart, a perusal of the impugned judgment would reveal that to safeguard the interest of the appellants/petitioners, the learned Single Judge has issued certain specific directions to the Electoral Officer as is evident from paragraph 8 of the impugned judgment. The learned senior counsel appearing for the appellants contended that the mere fact that before 10.7.2019 objection was not filed, cannot be a ground to permit election to go on based on the final voters list now published inasmuch as the said list is infected with illegalities alleged. However, in the circumstances and reasons mentioned hereinbefore, we find no justification to interfere with the election scheduled to be commenced from 11 a.m, today. In such circumstances, we do not find any reason
**W.A.1751/2019**
11
to interfere with the impugned judgment passed by the learned Single Judge. In that view of the matter, this writ appeal must fail and consequently, it is dismissed.
**Sd/C.T.RAVIKUMAR JUDGE Sd/N.NAGARESH JUDGE**
spc/
