Jijo.V.G. v. State Co-operative Election Commission, Thrissur District Barber Thozhilali Sahaakara Sangham Ltd. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 18TH DAY OF DECEMBER 2014/27TH AGRAHAYANA, 1936** ## **WP(C).No. 32476 of 2014 (H)** **----------------------------------------** ## **PETITIONER(S):** ## **----------------------** **JIJO.V.G., VALLUMEL PARAMBU, MADAKATHARA POST, WEST VELLANIKKARA THRISSUR - 680 651.** **BY ADVS.SRI.M.SASINDRAN SRI.V.VENUGOPAL** ## **RESPONDENT(S):** - **-------------------------** ## **1. THE STATE CO-OPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM, PIN - 695 001.** ## **2. THE ELECTORAL OFFICER,** - **THRISSUR DISTRICT BARBER THOZHILALI SAHAKARANA SANGHAM LTD. NO. R 788, (THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THRISSUR -680 001.** ## **3. THE RETURNING OFFICER,** **THRISSUR DISTRICT BARBER THOZHILALI SAHAKARANA SANGHAM LTD. NO. R 788, (THE UNIT INSPECTOR, THRISSUR, OFFICE OF ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THRISSUR -680 001.** **4. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THRISSUR - 680001.** **5. THE THRISSUR DISTRICT BARBER BEAUTICIAN CO-OPERATIVE SOCIETY LTD. NO. R 788, AYYANTHOLE, THRISSUR - 680 003 REPRESENTED BY ITS SECRETARY.** **6. SUJITH,KARUVAKUNNATH, CHELAKKOTUKARA, KIZHAKKEKOTTA THRISSUR - 680 001.** **R1-4 BY GOVERNMENT PLEADER SRI.R.RENJITH R5 BY ADV. SRI.GEORGE POONTHOTTAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 32476 of 2014 (H) ----------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT-P1TRUE COPY OF THE RELEVANT EXTRACTS FROM THE BYE LAWS OF THE SOCIETY.** - **EXHIBIT-P2TRUE COPY OF THE RELEVANT EXTRCT FROM THE NOTICE OF GENERAL BODY.** - **EXHIBIT-P3TRUE COPY OF THE REPRESENTATION DATED 11/11/2014 SUBMITTED BY THE PETITIONER AND OTHERS BEFORE THE 4TH RESPONDENT.** - **EXHIBIT-P4TRUE COPY OF THE LIST OF SOME OF THE MEMBERS WHO WERE ENROLLED IN THE SOCIETY AFTER 2014.** - **EXHIBIT-P5TRUE COPY OF THE COMMUNICATION DATED 21/11/2014 ISSUED BY THE ASSISTANT REGISTRAR, TO THE PETITIONER.** - **EXHIBIT-P6TRUE COPY OF THE REPLY TO THE EXHIBIT-P5,SUBMITTED BY THE PETITIONER AND OTHERS** - **EXHIBIT-P7TRUE COPY OF THE ELECTION NOTIFICATION PUBLISHED IN MATHRUBUMI DAILY DATED 19/11/2014.** - **EXHIBIT-P8TRUE COPY OF THE OBJECTION ALONG WITH THE LIST OF INELIGIBLE PERSONS WHO ARE LIABLE TO BE EXCLUDED FROM THE VOTERS LIST.** **EXHIBIT-P9TRUE COPY OF THE VOTERS LIST PUBLISHED ON 29/11/2014.** **RESPONDENT(S)' EXHIBITS** **---------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **K.VINOD CHANDRAN, J** - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 32476 of 2014 - - - - - - - - - - - - - - - - Dated 18[th] December, 2014 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** The petitioner is aggrieved with the election notified as per Ext.P7. The specific contention raised to assail the election is that, the respondent Society, which is a Society of barbers, had only 658 members and within a short time of two months, 745 members were included. The contention is that, these 745 members are not entitled to be enrolled as members since they are not barbers who would be entitled to take membership for the Society. 2. The learned counsel for the respondents appear and specifically point out that the bye-laws produced at Ext.P1 have been amended as far back as on 30.01.2009 and beauticians also are entitled to be enrolled as members. This is admitted by the petitioner. **WP(C).32476/14** 2 3. In any event, it is to be noticed that these are all factual matters which are to be adjudicated, if at all in a properly instituted Election Petition. The learned counsel for the petitioner however, then submits that the votes may be polled in separate boxes so that the Election Petition would be an effective remedy. 4. Primarily it is to be noticed that the objection raised is with respect to inclusion of 745 members in the voters list who are said to have been included in the recent past. However, a valid Managing Committee elected to Office is in Office and the members have also been enrolled by such Managing Committee. The petitioner should have definitely moved the Managing Committee and then the Joint Registrar for consideration of the sanctity of such enrollment made. Even the present application filed before the Joint Registrar, at Ext.P3 is **WP(C).32476/14** 3 dated 11.11.2014 just prior to the election. The election has been notified as per Ext.P7 and members included in the voters list are persons who have been enrolled by the Managing Committee itself. Any contention, with respect to any of the voters being not eligible to be enrolled, has to be agitated before the appropriate forum. This Court cannot assume that merely because 745 members were enrolled in the recent past, all of such members are ineligible to be included. In fact, the specific restriction in the Act is only in including members who have been, enrolled within 60 days of the notified election. 5. The learned counsel for the petitioner would rely on the decision of the Honourable Supreme Court in **Ahmednagar Zilla S.D.V. & P. Sangh Ltd. And Another v. State of Maharashtra and Others (2004 (1) SCC 133)** and two decisions of this Court **-** reported in **Govindan v. Registrar of Co Operative** **WP(C).32476/14** 4 **Societies (1983 KLT 1038)** and **Mathai v. State Co operative Election Commission (2007 (2) KLT 789)** to advance the case of interdiction of elections for reason of the gross illegality committed in drawing up the electoral roll. The learned Special Government Pleader and the learned counsel for the respondent, however, would rely on the decisions in **Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another v. State of Maharashtra and Others (2001 (8) SCC 509)** and **Vijayakumar v. Joint Registrar (1996 (1) KLT 285)** to advance their contention that, the facts disclosed does not commend interdiction of election and urges that this Court would not normally do it especially when the objections are vague and factual and require proper evidence to substantiate the same. 6. In the present case it has to be noticed that the petitioner's contention is that some **WP(C).32476/14** 5 members have been enrolled by the Managing Committee in the recent past. They do not have a contention that such inclusion of members were within the restricted period of the Kerala Co-operative Societies Act, 1969; specifically relating to the period just prior to convening of elections. Ext.P3 is seen to be the representation placed before the Assistant Registrar which was replied to by the said Officer by Ext.P5. The Assistant Registrar requested the petitioner to substantiate the allegations. However, the petitioner chose to reply by Ext.P6 merely asserting that the vocation of the persons objected to, have been stated in the list appended to Ext.P3 and nothing requires substantiation. 7. That definitely is not the purport of a representation filed for removal of members from the membership of the Society or from the voters list. Removal from membership of the Society **WP(C).32476/14** 6 definitely entails prejudice to such member and without substantiation, the Assistant Registrar or the Managing Committee need not proceed with such allegations merely on the assertions of an objector. In the case of a voters list, the power of the Electoral Officer examining the objections is also confined and have been succinctly stated in **Vijayuakumar** (supra). The objection filed before the Electoral Officer as per Ext.P8, also merely asserts the disqualification but does not substantiate it with sufficient materials. 8. **Vijayakumar** (supra) cautions the Returning Officer from making any roving enquiry into the objections filed and also found that the objection should be definite and determinative against individual members. A reading of sub-rule (4) of Rule 35A also does not indicate any _suo motu_ powers conferred on the Electoral Officer to verify the membership and in that process, exclude members from **WP(C).32476/14** 7 the voters list. 9. **Shri Sant Sadguru Janardan Swami** (supra) held, that election process should not be stayed after the process has been set in motion even if there is some alleged illegality or breach of rules in preparing the electoral roll. Any alleged illegality or breach of Rules, while preparing the electoral roll, was held to be the cause of action for a valid challenge in an Election Petition. The High Court, in the said case, on facts was held to have rightly declined the writ petition under Article 226 when there was an alternate remedy, which was not exhausted. 10. **Govindan** (supra) was a case in which there was a fundamental defect in the electoral roll insofar as admitting members within 30 days prior to the date of issue of notice for the General Body meeting convened for the election. The issue in the **WP(C).32476/14** 8 said case was that there was a statutory restriction and no member enrolled within the restricted period could have been included in the voters list. **Mathai** (supra) also dealt with similar issue where there was a fundamental error in the election convened. The bye-laws clearly provided that the election shall be on Ward basis. The de-limitation of Wards had to be done by the General Body. The resolution to conduct an election was taken without such delimitation of Wards. The resolution taken by the Managing Committee after the date of election was resolved, that too in violation of bye-laws was found to be one interfering with the democratic process in election. 11. Both the aforesaid decisions dealt with the fundamental defect in drawing up the electoral roll which was discernible without a roving enquiry and which was grossly illegal; so as to vitiate the election process itself. No fact adjudication was **WP(C).32476/14** 9 necessary and decision could have been taken by this Court under Article 226 of the Constitution of India based on the records available in the writ petitions. That is not the case herein. This Court has to proceed merely on the basis of the assertion of the defect that some members are not entitled to be enrolled in the Society. It is also to be noticed that, no fundamental defect in drawing up the electoral roll is projected, and what is urged is the defect in granting of membership itself which unfortunately, this Court would not be able to consider under the extraordinary powers conferred by this court. 12 **. Ahmednagar Zilla S.D.V** (supra), was with respect to an amendment of bye-laws which was held to be bad by the Appellate authority and revisional authority. That was a case in which the Tribunal was held to be not competent to adudge the validity of such contention. However, the High Court's refusal **WP(C).32476/14** 10 to interfere with the Appellate and revisional authorities' judgment was upheld. That was not a case in which the invocation of Article 226 to interdict the election came up for consideration. 13. The submission with respect to polling of votes in separate boxes, cannot also be countenanced. This Court is not convinced that the aforesaid case is a fit one to make such orders especially since there is no fundamental error in drawing up the electoral list pointed out by the petitioner. The alleged illegality in the membership granted goes to the root of the matter and has to be considered with due notice to the member which definitely, could not have been examined by an Electoral Officer. This Court also would not issue any positive directions regarding disposal of the representation filed before the Departmental Officers since evidently the petitioner does not seem to be keen on substantiating his contentions ## **WP(C).32476/14** **==> picture [13 x 9] intentionally omitted <==** and requires the Registrar to proceed on mere assumptions. This Court would not issue a writ in such cases. Definitely, the petitioner would have left his remedies to challenge the election if at all, before the appropriate forum. The writ petition would stand dismissed. Parties are left to suffer their respective costs. Sd/- **K.VINOD CHANDRAN Judge** Mrcs //True Copy//