James Sebastian & John Mathew v. State Co-operative Election Commission & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 18TH DAY OF JULY 2019 / 27TH ASHADHA, 1941** ## **WP(C).No.19149 of 2019** ## **PETITIONER/S:** **1 JAMES SEBASTIAN, AGED 45 YEARS KARIPPAPARAMBIL, AANAKKAL P.O,, KANJIRAPALLY, KOTTAYAM DIST., MEMBER NO. 18948** - **2 JOHN MATHEW, MUNDAPALLIL KANJIRAPALLY P.O., KOTTAYAM DIST., MEMBER NO. 23043** **BY ADVS. SRI.P.N.MOHANAN SMT.AMRUTHA SURESH SRI.C.P.SABARI** ## **RESPONDENT/S:** - **1 THE STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ELECTION COMMISSIONER, 3RD FLOOR, CO-BANK TOWER, PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033** - **2 ELECTORAL OFFICER TO KANJIRAPALLY SERVICE COOPERATIVE BANK, ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), KANJIRAPALLY, KOTTAYAM, PIN - 686 507** - **3 RETURNING OFFICER KANJIRAPALLY SERVICE COOPERATIVE BANK, UNIT INSPECTOR, KANJIRAPALLY, OFFICE OF ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANJIRAPALLY, KOTTAYAM, PIN - 686 507** - **4 KANJIRAPALLY SERVICE CO-OPERATIVE BANK LTD NO. 2061, REPRESENTED BY SECRETARY, KANJIRAPALLY, KOTTAYAM, PIN - 686 507** **BY ADVS. SRI.D.SOMASUNDARAM SRI.R.LAKSHMI NARAYAN-SC, SMT.C.S.SHEEJA-SR.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 19149/19 2 ## **JUDGMENT** The petitioners, who are members of the 4[th] respondent-Society, impugn the final Voters' List, prepared and settled by the Electoral Officer, as being illegal and unlawful since the mandatory details, including the names of father/husband of the members, are not shown therein. 2. The petitioners say that going by Rule 35A(4) of the Kerala Co-operative Societies Rules (KCS Rules for short), the requirement of admission number, name of the member, name of father/husband of the member and the address of the member to be shown therein is inviolable and cannot be given up by any Electoral Officer, acting under the mandate of the KCS Act and Rules. They allege that in spite of this, the present Voters' List, a copy of which has been produced on record as Ext.P2, does not show the names of father/husband of any of the persons WPC 19149/19 3 included therein as voters. They, therefore, pray that Ext.P2 be set aside. They also have a case that contrary to the directions of the Statutory Authorities and the various judgments of this Court, Statutory Identity Cards, issued by the Society to their members, are laminated photocopies and therefore, that such cards are also untenable in law. 3. In response to the afore submissions of Sri.P.N.Mohanan, the learned counsel for the petitioners, Sri.D.Somasundaram, the learned counsel appearing for the Secretary of the Society, started by admitting that the names of the father/husband of the members are not shown in Ext.P2. He says that this is because the data base of the Voters' List has been computerised and that it does not contain these particulars for the last several years, adding that it is the same list, subject to modification, that has been used in the earlier elections also. He, WPC 19149/19 4 however, says that this will not cause any prejudice to the petitioners, since the identity of the members at the time of voting will be without any doubt since all of them will be allowed to vote only as per Rule 35A(6)(n)(ix) and further that going by Rule 16A of the KCS Rules and Form 6A, these particulars are already available in the concerned Registers as also in all the Identity Cards. Finally, as regards the allegation of lamination of the Identity Cards are concerned, he vehemently refutes the allegations of Sri.P.N.Mohanan and asserts that they have been prepared and issued as per the applicable circulars and directions of this Court. 4. Sri.R.Lakshmi Narayan, the learned Standing Counsel appearing for the State Cooperative Election Commission, submits that the Electoral Officer had scrutinised the list provided to him by the Chief Executive Officer WPC 19149/19 5 of the Society, namely, the Secretary and had approved the same specifically in terms of Rule 35A(4). He adds that if the petitioners have any further grievance, they will have to raise it appropriately before the competent Authority after the elections are over, because the polling is scheduled to be conducted on 21.07.2019. 5. I have considered the afore submissions and I have also examined Ext.P2. Very interestingly, apart from the admitted fact that the names of the father/husband of the members are not shown, in the said Voters' List, most of the members are shown to be over 80 years in age moving all the way up to 161 years. Obviously, there are some conspicuous issues in this list which should gain the attention of the competent Authority. However, I am choosing to be circumspect without affirmatively concluding on these issues being guided by the judgment of the WPC 19149/19 6 Honourable Supreme Court in **Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra** **[(2001) SCC 509].** 6. That said, however, I am of the firm view that it is the responsibility of the Election Commission to ensure that the voting process is conducted in a fair, transparent and legal manner. In fact, the mandate of Rule 35A(4) is also that the responsibility of the Voters' List is finally with the Electoral Officer, who certainly acts under the Election Commission. 7. That apart, I find some force in the submissions of Sri.P.N.Mohanan that when the Voters' List contains incorrect entries and excludes certain vital information, that are mandatorily necessary, proper objections cannot be made with respect to the persons included therein, particularly because the access to the WPC 19149/19 7 Form 6B Register and the Membership Register will be available only at the time of voting; which means that meaningful and effective objections to the Voters' List would become impossible. 8. Even though I have made my tentative observations as above, I deem it appropriate that these aspects be considered by the Election Commission, taking note of their statutory obligations under Rule 35A(4). 9. I, therefore, leave it to the Election Commission to decide whether the elections must be conducted based on the impugned Voters' List, which _prima facie_ appears to have certain basic infirmities; and they shall take such decision not later than the evening of 19.07.2019 and notify it on the Board of the Society for the information of all. 10. Needless to say, whatever be the decision to be taken by the Election Commission WPC 19149/19 8 in terms of these directions, the petitioners or any other persons would have full liberty left open; reiteratingly clarifying that I have not considered any of their contentions raised in this Writ Petition on its merits. This writ petition is thus ordered. **Sd/-** ## **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 19149/19 9 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE ELECTION NOTIFICATION DATED 27.5.2019 EXHIBIT P2 A TRUE COPY OF THE FINAL VOTERS LIST DATED 29.6.2019 - EXHIBIT P3 A TRUE COPY OF JUDGMENT REPORTED IN 1994 (1) KLT 828 - EXHIBIT P4 TRUE PHOTO COPIES OF SOME OF THE LAMINATED ID CARDS ISSUED BY THE BANK - EXHIBIT P5 A TRUE COPY OF THE JUDGMENT REPORTED IN 2018 (5) KHC 902 (DB) - EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE ELECTION COMMISSION EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 28.06.2019 OF THE ELECTORAL OFFICER