Johny Kulampally v. State Co-operative Election Commission and Others

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` THURSDAY, THE 2[ND] DAY OF MARCH 2023 / 11TH PHALGUNA, 1944 ``` ## _`WP(C) NO. 4283 OF 2023`_ ## _`PETITIONER:`_ ``` JOHNY KULAMPALLY AGED 61 YEARS S/O. SEBASTIAN, MEMBER, IDUKKI TALUK PRIMARY CO- OPERATIVE AGRICULTURE AND RURAL DEVELOPMENT BANK LTD NO.I- 681, KATTAPPANA, IDUKKI DISTRICT - 685508 RESIDING AT KULAMPALLIL HOUSE, KATTAPPANA P.O., PARAKKADVAU, IDUKKI DISTRICT, PIN - 685508 BY ADVS. NISHA GEORGE GEORGE POONTHOTTAM (SR.) ANSHIN K.K ``` ## _`RESPONDENTS:`_ ``` 1THE STATE CO-OPERATIVE ELECTION COMMISSION 3RD FLOOR, CO BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN CODE: -695 033, REPRESENTED BY ITS SECRETARY, PIN - 695033 2JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES PAINAVU P.O., PAINAVU, IDUKKI DISTRICT - 685 603, PIN - 685603 3THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) THODUPUZHA, IDUKKI DISTRICT - 685584, PIN - 685584 4THE ADMINISTRATIVE COMMITTEE IDUKKI TALUK PRIMARY CO-OPERATIVE AGRICULTURE AND RURAL DEVELOPMENT BANK LTD NO.I- 681, KATTAPPANA, IDUKKI DISTRICT - 685508, REPRESENTED BY ITS CONVENOR, PIN - 685508 5THE IDUKKI TALUK PRIMARY CO-OPERATIVE AGRICULTURE AND RURAL DEVELOPMENT BANK LTD NO.I- 681 KATTAPPANA, IDUKKI DISTRICT - 685508, REPRESENTED BY ITS SECRETARY, PIN - 685508 6ADDL.R6: JAMES THOMAS , S/O. M.C.THOMAS, MLAKUZHIYIL, MANKUVA POST, IDUKKI DISTRICT ``` ``` W.P. (C) No. 4283 of 2023 ``` ``` ..2.. ``` ``` 7ADDL.R7: M.S.SURENDRAN, AGED 59 YEARS, S/O.SADASIVAN, MOOLAMKUZHA, MUKKUDAM P.O., IDUKKI DISTRICT-685 562. (ADDL.R6 & R7 ARE IMPLEADED AS PER ORDER DATED 14-02-2023 IN IA 1/2023) BY ADVS. C.M.NAZAR JOICE GEORGE M.SASINDRAN LIJI.J.VADAKEDOM(K/614/1993) TOM E. JACOB(K/1144/2001) ``` ## _`OTHER PRESENT:`_ ``` SRI. P P THAJUDHEEN (SPL GP), SRI. DEEPU LAL MOHAN (ADV. COMMISSIONER) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P. (C) No. 4283 of 2023 ``` ``` ..3.. ``` ## **JUDGMENT** The petitioner had approached this court essentially with the grievance that an election originally scheduled on 25.04.2021 and was adjourned/cancelled on account of a direction issued by the District Collector, Idukki District under the provisions of the Disaster Management Act is notified to be held on 19.02.2023, without publishing a revised voters list. 2. It is the case of the petitioner that since the election is being held after a gap of nearly two years, the election can be held only after the voter's list is thoroughly verified and ineligible candidates including persons who may have expired during the period are removed from the voter's list. An apprehension was expressed that there might be bogus voting in the name of dead persons by impersonation, etc. 3. Having regard to the contentions taken in this Writ Petition, this court passed the following order on 15.02.2023:- ``` W.P. (C) No. 4283 of 2023 ``` ``` ..4.. ``` _“ The petitioner has approached this court essentially with the grievance that an election which was scheduled to be held originally on 25.04.2021, came to be adjourned/cancelled on account of a direction issued by the District Collector, Idukki District under the provisions of the Disaster Management Act. The District Collector directed that the election shall not be held on the date fixed, on account of the possibility that, the holding of the election in respect of a Society having approximately twenty thousand members would result in the spread of Covid-19 infection. After the adjournment of the election scheduled to be held on 25.04.2021, the election has been notified to be held on 19.02.2023._ _2. According to Sri. George Poonthottam, the learned Senior Counsel appearing for the petitioner, since there is a huge gap between the date originally scheduled for the holding of the election and the date now fixed for the election, the election can be held only after the voters' list is revised and published, so as to avoid ineligible persons and persons who have died in the meanwhile, from the voters' list. It is pointed out, with reference to the voters list that several such persons are included._ _3. Per contra, Sri. P.P. Tajudeen, the learned Special Government Pleader appearing for the official respondents, Sri. Nazar, the learned Standing Counsel appearing for the State Co-operative Election Commission, Adv. M. Sasindran appearing for two of the contesting candidates and Adv. Liji J Vadakkedom, the learned counsel appearing for the Society would submit that it is settled law_ ``` W.P. (C) No. 4283 of 2023 ``` ``` ..5.. ``` _that once an election process is commenced, the same will have to be continued till the declaration of results and if at any stage, there has been a postponement or adjournment of any step in the election process, the process will then have to be continued from that stage and there is no necessity whatsoever to undo the stages in the election that have already been completed. It is submitted that this is the law laid down in various judgments of this court._ _4. The learned Senior Counsel appearing for the petitioner, in reply, relied on the judgments of this court in_ _**Devassy v. Asst. Registrar of Co-operative Societies, 1976 KHC 14; Abubaker v. Kunhavaran and Others, 1983 KHC 221; Govindan v. Dy. Registrar of Co-operative Societies, 1983 KHC 233 and Haridas v. Alleppey Urban Co-operative Bank Ltd., 1991 KHC 402,** to contend that though the normal rule is that a postponed or adjourned election will have to commence from the stage at which it was so postponed or adjourned, when there is a huge gap between the date originally fixed and the date now fixed and when it is clearly shown that the voters' list contains the names of several ineligible persons including dead persons, it is only appropriate, on the authority of_ _**Devassy (Supra),** that the election be permitted to be conducted only after preparing a fresh voters' list._ _5. The learned counsel appearing for the respondents relied on the judgments of this court in_ _**Prakashkumar v. State Co-operative Election Commission, 2014 KHC 2514; Keecheri Co-operative Bank Ltd No. 668 and Another v. Ramesh M M and others, 2020 (1) KHC 167; Ravindran v. State of Kerala, 2022 KHC 3442 and**_ ``` W.P. (C) No. 4283 of 2023 ``` ``` ..6.. ``` _**Madhavan Namboodiri v. Kammaran,1992 KHC 399,** to contend that there is absolutely no merit in the contentions taken on behalf of the petitioner._ 6. _Having considered the submissions made by the learned Senior Counsel appearing for the petitioner and the learned counsel appearing for the various respondents, I am of the view that since all arrangements have already been made for the conduct of the election on 19.02.2023, the election scheduled on 19.02.2023 must be allowed to be conducted on the said date. However, in order to allay the apprehension that ineligible persons and vote of persons who have passed away since the date of publication of the voters' list may be recorded on account of impersonation etc., I am of the opinion that the election must be supervised by an Advocate Commissioner, despite the objections raised by the learned counsel appearing for the State Co-operative Election Commission that the Commission is in a position to conduct the election in accordance with the Rules and by ensuring that no ineligible persons are allowed to vote._ _7. Accordingly, Adv. Deepu Lal Mohan is appointed as Advocate Commissioner to oversee the election process and ensure that the election to be held on 19.02.2023, is conducted in accordance with the rules. I make it clear that the Advocate Commissioner need only oversee the election process and file a report on the result of his observations. The petitioner shall arrange travel facilities to and from the polling station, for the Advocate Commissioner on the date of election. The petitioner shall also pay a sum of_ ``` W.P. (C) No. 4283 of 2023 ``` ``` ..7.. ``` _Rs.50,000/- as batta to the Advocate Commissioner. The Advocate Commissioner shall file a report before this court on or before 24.02.2023. The petitioner may also request for the videograph of the entire process. If such request is made before the Returning Officer, the said officer shall ensure that the entire process is video graphed at the cost of the petitioner. However, the videography shall be done, ensuring that the secrecy of polling is not affected in any manner. The result of the election shall be declared only after getting further orders from this court._ 4. The Advocate Commissioner appointed by this court has filed his report, where in Paragraph 15 to 20 it is stated as follows:- _“15. In this context it may be mentioned that throughout the polling period, no instance of bogus voting, impersonation etc were either found by the polling officials or complained of by the candidates or their agents. In fact, on routinely inspecting the various polling booths throughout the period of polling, I found that the polling officials were scrupulously verifying the original of Form 6A identity card of the member and also the original of the additional prescribed documents produced and ballot papers were being issued only after being satisfied that the member concerned is the_ ``` W.P. (C) No. 4283 of 2023 ``` ``` ..8.. ``` _same person as noted in the voter's list furnished. Further, the Returning Officer also informed me that no complaint had been submitted before him either oral or in writing regarding any instance of bogus voting, impersonation etc, either by the candidates or their agents or anyone else._ _16. However, here it would be apposite to mention that though some of the members who had been issued with Form 6A identity cards, approached the polling booths for casting their vote along with original of additional prescribed document, they were not issued with ballot paper and permitted to cast their vote since their names were not included in the final published voter's list. The names of such members who had not been permitted to cast their vote and who had approached the Returning Officer complaining of such action are as follows:_ |_`SL No.`_|_`NAME OF MEMBER`_|_`MEMBERSHIP NO.`_|_`DATE OF ISSUANCE`_<br>_`OF FORM 6A ID`_<br>_`CARD`_| |---|---|---|---| |_`1`_|_`Eliamma sunny`_|_`4687`_|_`10-11-2020`_| |_`2`_|_`Siby Joseph`_|_`4654`_|_`25-11-2020`_| |_`3`_|_`Sunny Cherian`_|_`4692`_|_`10-11-2020`_| |_`4`_|_`Julie`_|_`4825`_|_`19-01-2021`_| |_`5`_|_`Mathew`_|_`4694`_|_`18-11-2020`_| |_`6`_|_`Sabu Sebastian`_|_`4610`_|_`17-02-2021`_| ``` W.P. (C) No. 4283 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _17. It is submitted that as scheduled, the polling period concluded at 04:00 PM and at that instant itself as per the direction of the Returning Officer, the Police personnel closed the gate of the polling station premises after making all the candidates and other persons (except polling officials, police personnel and voters who were already standing in queue before the polling booth) leave the premises. Thereafter, pursuant to completion of casting of votes by all persons, the ballot boxes in each polling booth were sealed after affixing the signature of the presiding officers and that of the candidate's agents._ _18. Later at 04:20 PM the Returning Officer approached the gate of the polling station premises and let in the candidates and their counting agents and Chief Election Agents after distributing respective passes. Thus, the counting officials as well as candidates and their Counting Agents assembled in the respective polling booths and at 04:30 PM the counting of votes commenced and the same continued till up to 09.00 PM at which time entire counting was completed and the counting sheets along with respective ballot papers of all polling booths were submitted before the_ ``` W.P. (C) No. 4283 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** _Returning Officer. Accordingly, the results were duly entered and tabulated in the software by the Returning Officer and thereafter counting sheets and respective ballot papers were tied up in bundles and the same along with unused ballot papers and other polling documents were deposited in two wooden boxes and the same was sealed and handed over to the Secretary of the Society for safe custody._ _19. It is submitted that though the Returning Officer duly tabulated the result of polling, the same was not announced/declared in view of the specific direction of this Hon'ble Court issued as per Order dated 15-022023 in the above Writ Petition._ _20.It is further submitted that after witnessing the entire polling process, I found that the entire polling took place in accordance with the prescribed statutory procedure, without giving room to any complaint from any quarters and also in a free and fair manner and without any law and order issues. By and large, I found that the candidates, their agents and workers along with the Returning Officer and other polling officials and also the police personnel worked in tandem to ensure smooth conclusion of the polling process.”_ ``` W.P. (C) No. 4283 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** 5. The learned counsel for the petitioner submits that about two thousand members have been removed from the voter's list by the 2[nd] respondent. It is submitted by the learned counsel appearing for the respondents in this case that this issue is totally outside the scope of the Writ Petition and if there is any case that any person has been illegally removed from the voter's list, the matter has to be taken up or challenged in accordance with law. Sri. P.P Thajudheen, the learned Special Government Pleader would submit that the submission is without any basis. 6. Having heard the learned counsel appearing for the petitioner, the learned counsel appearing for the respondents, and having perused the report of the learned Advocate Commissioner, I am of the view that nothing further survives for consideration of the Writ Petition and it is accordingly closed. The Returning Officer is permitted to declare the results of the election. Notwithstanding the fact that this Writ Petition has been closed, I make it clear that the petitioner or any other person who may be ``` W.P. (C) No. 4283 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** aggrieved in any manner by the conduct of the election or the inclusion or deletion of eligible voters etc may challenge the same in accordance with law. The Writ Petition is closed. **Sd/-** **GOPINATH P. JUDGE** RMV ``` W.P. (C) No. 4283 of 2023 ``` ``` ..13.. ``` ## _`APPENDIX OF WP(C) 4283/2023`_ ``` PETITIONER EXHIBITS Exhibit-P1TRUE COPY OF THE ORDER NO. JRGIDK/165/2022-CRB DATED 19.02.2022 ISSUED BY THE 2ND RESPONDENT. Exhibit-P2TRUE COPY OF THE ORDER NO. JRGIDK/165/2022-CRB DATED 20.08.2022 ISSUED BY THE JOINT REGISTRAR OF CO- OPERATIVE SOCIETIES, IDUKKI Exhibit-P3TRUE COPY OF THE AMENDED NOTIFICATION BEARING NO. E(1)1343/2021/S.C.E.C DATED 06.02.2023 ISSUED BY THE 1ST RESPONDENT ELECTION COMMISSION ``` ``` RESPONDENT EXHIBITS Exhibit R6(a)A TRUE COPY OF THE PHOTOGRAPH SHOWING THE BOARD OF ELECTION COMMITTEE OFFICE OF THE WRIT PETITIONERS COALITION ``` ``` Exhibit R6(b)A TRUE COPY OF THE ADVERTISEMENT BOARD OF THE WRIT PETITIONER AND HIS COMPANION CONTESTANT Exhibit R6(c)A TRUE COPY OF THE ADVERTISEMENT BOARD OF THIS DEPONENT AND THE COMPANION CONTESTANT Exhibit R6(d)A TRUE COPY OF THE SAMPLE BALLOT PAPER, ISSUED BY THE RETURNING OFFICER TO THE CONTESTING CANDIDATES Exhibit R6(e)A TRUE COPY OF THE SAMPLE BALLOT PAPER, CONTAINING THE NAME OF THE CANDIDAES BELONGED TO THIS DEPONENT'S SIDE Exhibit R6(f)A TRUE COPY OF THE NOTICE PUBLISHED BY THE CO- OPERATIVE PROTECTION FRONT PETITIONER EXHIBITS Exhibit P4TRUE COPY OF THE VOTERS LIST THUS PREPARED CONTAINING THE PERSONS WHO HAVE DIED. Exhibit P5TRUE COPY OF THE VOTERS LIST CONTAINING THE PERSONS, WHO HAVE SHIFTED THEIR RESIDENCE OUTSIDE THE AREA OF OPERATIONS. ``` ## _`TRUE COPY`_ ``` P.A.TO JUDGE ```