Issac P.V. v. State Co-operative Election Commission, Electrical Officer, Returning Officer, Pothanicad Farmers Co-operative Bank Ltd No.3510, Joint Registrar of Co-operative Societies (General)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938** **WP(C).No. 39521 of 2016 (M) ----------------------------** ## **PETITIONER(S): -------------** **ISSAC P.V., S/O VARKEY, PUKKUNNEL HOUSE, POTHANICAD P.O., ERNAKULAM DISTRICT-686 671.** **BY ADV. SRI.N.RAGHURAJ** ## **RESPONDENT(S):** **--------------** **1. THE STATE CO-OPERATIVE ELECTION COMMISSION, COBANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPRUAM-695 022, REPRESENTED BY THE COMMISSIONER.** **2. THE ELECTRICAL OFFICER,** - **POTHANICAD FARMERS CO-OPERATIVE BANK LTD NO.3510, (THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) KOTAMANGALAM CIRCLE) POTHANICAD, ERNAKUKAM DISTRICT-686 671.** **3. THE RETURNING OFFICER,** - **POTHANICAD FARMERS CO-OPERATIVE BANK LTD NO.6510, (THE UNIT INSPECTOR, O/O THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KOTHAMANGALAM CIRCLE), POTHANICAD, ERNAKULAM DISTRICT-686 671.** **4. POTHANICAD FARMERS CO-OPERATIVE BANK LTD NO.3510, POTHANICAD PO, ERNAKULAM DISTRICT-686 671, REPRESENTED BY ITS SECRETARY.** **5. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), ERNAKULAM-682 030.** **R1-R3 & R5 BY SPL. GOVERNMENT PLEADER SRI.K.S.MOHAMAD HASHIM R4 BY ADV. SRI.GEORGE POONTHOTTAM** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-12-2016 THE COURT ON 16-12-2016, DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 39521 of 2016 (M)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE PHOTOCOPY OF THE NOTIFICATION DATED 29.11.2016 PUBLISHED BY THE 1ST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 3.12.2016.** **EXHIBIT P3 TRUE PHOTOCOPY OF THE JUDGMENT DATED 7.12.2016 IN WPC NO.38916/2016.** **EXHIBIT P4 TRUE PHOTOCOPY OF THE NOTICE DATED 10.12.2016 PUBLISHED BY THE 2ND RESPONDENT.** **EXHIBIT P5 TRUE PHOTOCOPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT DATED 8.12.2016.** **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **msv/** ## **P.B.SURESH KUMAR, J.** ## **----------------------------------------------W.P.(C) No.39521 of 2016** ## **----------------------------------------------Dated 16[th] December, 2016** ## **J U D G M E N T** The petitioner is a member and a former member of the managing committee of the fourth respondent co-operative society('the society') governed by the provisions of the Kerala Co-operative Societies Act ('the Act') and the rules made thereunder ('the Rules'). The term of office of the present managing committee of the society is due to expire on 17.2.2017. As such, at the instance of the society, the State Cooperative Election Commission ('the Election Commission') has notified election to form a new managing committee for the society. Exhibit P1 is the notification published by the Election Commission in this connection. In terms of Exhibit P1 notification, a preliminary voters' list was published by the Electoral Officer appointed by the Election Commission on 2.12.2016. As per the notification, time was granted till WPC 39521 of 2016 2 8.12.2016 for preferring objections against the preliminary voters' list. It is notified that the objections, if any, preferred against the preliminary voters' list will be considered by the Electoral Officer between 11 a.m. and 1 p.m. on 9.12.2016. The date for publication of the final voters' list as per the notification was fixed as 10.12.2016. On 7.12.2016, the petitioner approached this Court in W.P.(C) No.38916 of 2016 apprehending that the objection preferred by the petitioner against the preliminary voters' list will not be considered by the Electoral Officer as the same is voluminous and sought directions to the Electoral Officer to consider the objection preferred by him to the preliminary voters' list. This Court disposed of the said writ petition holding that even if the objection is voluminous in nature, the Electoral Officer is bound to consider the same. Exhibit P3 is the judgement rendered in the said case. The case set up by the petitioner in this writ petition is that despite Exhibit P3 judgment, the Electoral Officer has published the final voters' list for the election scheduled as per Exhibit P1 notification without considering the WPC 39521 of 2016 3 objection raised by him to the preliminary voters' list. Exhibit P4 is the final voters' list published by the Electoral Officer for the election. According to the petitioner, the Electoral Officer has not considered the objection raised by the petitioner to the preliminary voters' list for want of time as the objection is voluminous in nature. According to the petitioner, since the final voters' list has been published without considering the objections raised by him to the preliminary voters' list, the election needs to be rescheduled. The petitioner, therefore, seeks directions in this regard in the writ petition. 2. A counter affidavit has been filed by the society contending that the writ petition is one filed without any _bona fides,_ at the instance of a section of the members of the society with a view to prevent the conduct of the election as per the schedule published by the Election Commission and to pave way for appointment of an administrator or an administrative committee of their choice for the management of the society as they are unable to muster sufficient support from the members of the society to get elected in a democratic process. It is also WPC 39521 of 2016 4 contended by the society in the counter affidavit that the official respondents are extending their support to facilitate the desire of the persons at whose instance the writ petition is filed. On merits, it is contended by the society that the objection raised by the petitioner to the preliminary voters' list is not specific and that the petitioner has not placed any material before the Electoral Officer to substantiate his objections. In short, according to the society, the final voters' list published by the Electoral Officer is, in order. 3. Heard the learned counsel for the petitioner, the learned Special Government Pleader as also the learned counsel for the fourth respondent. The learned Special Government Pleader has made available the file of the Electoral Officer also, at the time of hearing. 4. It is now settled that the Electoral Officer is expected to conduct only a summary enquiry while considering the objections raised against the preliminary voters' list. As such, only objections which are definite and specific against individual members, preferred with reliable supporting WPC 39521 of 2016 5 materials can be verified by the Electoral Officer with reference to the records of the society. The Electoral Officer is not expected to make a roving enquiry while dealing with the objections against the preliminary voters' list [See **Vijayakumar** v. **Joint Registrar** (1996 (1) KLT 285)]. Exhibit P4 notice published by the Electoral Officer after considering the objections preferred against the preliminary voters' list indicates that nine persons preferred objections against the inclusion of 2757 persons in the voters' list on the ground that they reside outside the area of operation of the society. It is stated by the Electoral Officer in Exhibit P4 notice that he has considered the objections based on the materials produced by the objectors with reference to 131 persons and found that 34 among them are residing outside the area of operation of the society. Consequently, it is stated in Ext.P4 notice that, they are excluded from the final voters' list. It is also stated in Ext.P4 notice that since the Electoral Officer is unable to consider the objections preferred against the remaining persons mentioned in the objections, their names are also included in WPC 39521 of 2016 6 the final voters' list. 5. The learned counsel for the petitioner asserted that it is for want of time that the Electoral Officer has not considered the objections preferred by the petitioner. Exhibit P5 communication sent by the Electoral Officer to the Election Commission on 8.12.2016 is relied on to substantiate the said contention. Exhibit P5 communication is one issued by the Electoral Officer to the Election Commission with reference to the objections to the preliminary voters' list preferred by two other persons, namely A.K.Siju and K.P.James. In Exhibit P5 communication, it is stated by the Electoral Officer that he received objections against the inclusion of 2560 members in the preliminary voters' list and he is unable to consider all the objections within the short span of time prescribed in the notification. The learned counsel for the society pointed out that the objections preferred by the petitioner are not definite and specific and are also not supported by materials and that the Electoral Officer is, therefore, not expected to consider the objections preferred in the aforesaid nature. In the light of the WPC 39521 of 2016 7 specific contentions raised by the learned counsel for the parties, I have perused the file of the Electoral Officer. It is seen that the Electoral Officer has received altogether nine objections against the preliminary voters' list including the one preferred by the petitioner. All the nine objections are seen kept in the file in distinct bundles of which some are twined and some are stapled. It is stated in the objection preferred by the petitioner that large number of persons who are residing outside the area of operation of the society are included in the preliminary voters' list. Though the petitioner does not indicate the total number of such persons in the objection, it is seen that the objection of the petitioner refers to 643 persons. No other material is seen to have been produced by the petitioner before the Electoral Officer in support of his case that the persons mentioned in the list enclosed along with the objection are persons residing outside the area of operation of the society. It is seen that in a similar objection preferred by another, the voters' list of the concerned assembly constituency has been enclosed. I do not think that in the summary enquiry WPC 39521 of 2016 8 contemplated, one can examine the objection preferred by the petitioner without any further material. Though the learned counsel for the petitioner vehemently contended that the petitioner has also produced the voters' list of the assembly constituency to substantiate his objection, the same was not found in the file of the Electoral Officer. In the circumstances, I do not think that the Electoral Officer can be found fault with for having published the final voters' list after examining the precise and definite objection preferred against the preliminary voters' list. True, in Exhibit P5 communication, the Electoral Officer has stated that he is unable to consider all the objections raised against the preliminary voters' list and that he needs more time to consider the same. I do not think that the said communication would enure to the benefit of the petitioner in any manner, for, the objection preferred by the petitioner before the Electoral Officer are not supported by materials. It is settled that once the election process is started, the Court shall not normally interfere with the election process and the interference of the Court is justified only in exceptionally WPC 39521 of 2016 9 exceptional situations. The remedy, if any, of the persons aggrieved by the inclusion of ineligible persons in the voters' list and exclusion of eligible persons from the voters' list is to prefer election petition after the election in accordance with the concerned statute. On an evaluation of the materials on record, I am of the view that this is not a fit case where this Court will be justified in interfering with the election process. However, having regard to the facts and circumstances of the case, I am of the view that the interest of the petitioner can be protected by a direction to collect the votes cast by the persons referred to in the objection preferred by the petitioner, in a separate ballot box, so that, if the petitioner chooses to file an election petition, the same will enure to his benefit. In the result, the writ petition is disposed of directing the third respondent to collect the votes, if any, cast by the 643 persons referred to in the objection preferred by the petitioner to the preliminary voters' list, in a separate box. It is made clear that there is no interdiction for counting the said votes and declaring the results of the election on that basis and the WPC 39521 of 2016 10 said direction is issued only to enable the petitioner to pursue election petition, if any, preferred in an effective manner. Sd/- **P.B.SURESH KUMAR, JUDGE.** tgs