K. Bhaskaran, P.C. Sajeev and Jiju C. Nair v. Kerala State Co-operative Election Commission and others (WP(C) No. 22117 of 2014)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **MONDAY, THE 1ST DAY OF SEPTEMBER 2014/10TH BHADRA, 1936** ## **WP(C).No. 22117 of 2014 (L)** ## **----------------------------** ## **PETITIONERS:** **--------------------------** ## **1. K.BHASKARAN, AGED 55 YEARS,** - **S/O.K.C.VELU NAIR, MEMBER NO.869, THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LTD.NO.4348, ERNAKULAM, NOW WORKING AT SUB INSPECTOR OF POLICE, VENGARA POLICESTATION. (RESIDING AT SNEHA, ELAYOOR, ERUVETTI P.O.AREECODE (VIA), MALAPPURAM - 673 639).** ## **2. P.C.SAJEEV, AGED 43 YEARS,** - **S/O.RAJAGOPALAN NAIR, MEMBER NO.21180, THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LTD NO.4348, ERNAKULAM. NOW WORKING AT SENIOR CIVIL POLICE OFFICER-1272, A.R.WAYANADU. (RESIDING AT RAJ BHAVAN, PINANGODUP.O., KALPETTA (VIA) WAYANADU - 673 122).** ## **3. JIJU C.NAIR, AGED 39 YEARS,** - **S/O.P.RAMACHANDRAN PILLAI, MEMBER NO.38210, THE KERALAPOLICE HOUSING CO-OPERATIVE SOCIETY LTD.NO.4348, ERNAKULAM,NOW WORKING AT CIVIL POLICE OFFICER - 6356, KOLLAM. A.R. (RESIDING AT PRASANTHI, MUKHATHALA P.O.,KOLLAM - 691577).** ## **BY SRI.K.GOPALAKRISHNA KURUP,SENIOR ADVOCATE ADV. SRI.ABHISHEK KURIAN** ## **RESPONDENTS:** **----------------------------** **1. KERALA STATE CO-OPERATIVE ELECTION COMMISSION, OFFICE OF THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.** ## **2. THE RETURNING OFFICER,** **THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LTD NO.4348, ERNAKULAM - 682 001(DEPUTY REGISTRAR, OFFICE OF THE JOINT REGISTRAR(GENERAL), ALAPPUZHA.** **..2/-** **Kss** **..2....** ## **WPC.NO.22117/2014 (L)** ## **3. THE ELECTORAL OFFICER,** - **THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LTD NO.4348, ERNAKULAM - 682 001 (JOINT DIRECTOR/CONCURRENT AUDITOR, ERNAKULAM DISTRICT CO-OPERATIVE BANK, ERNAKULAM.** **4. THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LTD.NO.4348, ERNAKULAM - 682 001 REP. BY IT'S SECRETARY.** ## **5. THE ADMINISTRATOR,** **THE KERALA POLICE HOUSING CO-OPERATIVE SOCIETY LTD NO.4348, ERNAKULAM - 682 001.(JOINT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, ERNAKULAM).** **R1 TO R3 & R5 BY SPL.GOVERNMENT PLEADER SRI.D.SOMASUNDARAM R4 BY ADV. SRI.GEORGE POONTHOTTAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** **WP(C).No. 22117 of 2014 (L) ----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **---------------------------------------** **EXT.P-1: TRUE COPY OF THE COMMUNICATION BY THE SOCIETY DATED 21.11.2013.** ## **EXT.P-2: TRUE COPY OF THE COMMUNICATION ISSUED BY THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION DATED 18.12.2013.** **EXT.P-3: TRUE COPY OF THE ORDER OF REGISTRAR, KERALA STATE COOPERATIVE SOCIETIES DATED 21.1.2014.** ## **EXT.P-4: TRUE COPY OF THE JUDGEMENT IN W.A.NO.371/2014 DATED 3.3.2014.** **EXT.P-5: TRUE COPY OF THE ORDER DATED 29.4.2014 ISSUED BY THE ADDITIONAL REGISTRAR OF CO-OPERATIVE SOCIETIES.** **EXT.P-6: TRUE COPY OF THE PUBLIC NOTICE DATED 5.5.2014 ISSUED BY THE 4TH RESPONDENT.** **EXT.P-7: TRUE COPY OF THE NOTIFICATION DATED 4.8.2014 ISSUED BY THE IST RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS:** ## **------------------------------------------** **EXT.R4(A): TRUE COPY OF THE NOTICE DATED 5/05/2014 PUBLISHED IN THE NEW INDIAN EXPRESS ON 14/05/2014.** **EXT.R4(B): TRUE COPY OF THE NOTICE DATED 5/05/2014 PUBLISHED IN KERALA KOUMUDI ON 8/05/2014.** **EXT.R4(C): TRUE COPY OF THE NOTICE DATED 5/05/2014 PUBLISHED IN MALAYALA MANORAMA DAILY ON 7/05/2014.** **EXT.R4(D): TRUE COPY OF THE ORDER IN I.A.NO.500/2014 IN WA.NO.371/2014 DATED 30/06/2014.** **EXT.R4(E): TRUE COPY OF THE REPLY NO.KPHCS/ELE/2014 DATED 21/11/2013.** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## K. SURENDRA MOHAN,J. ------------------------------W.P(C) NO.22117 OF 2014 ---------------------------------Dated this the 1[st] September, 2014. ## JUDGMENT The petitioners are members of of the Kerala Police Housing Co-operative Society, the fourth respondent herein. They have filed this writ petition challenging Ext.P7 notification of the first respondent by which, an election to the Managing Committee of the society is proposed to be conducted. As per the schedule in Ext.P7, the various stages for conduct of the election have been completed and what remains is only the polling that is scheduled to be conducted on 13.9.2014. 2. According to Adv.K.Gopalakrishna Kurup, the Senior Counsel who appears for the petitioners, the fourth respondent society has a total membership of about 50000 persons. Though there were some discrepancies in the WPC 22117/2014 2 manner of maintaining the Form 6B register at the office of the society, they were not sought to be rectified by the persons in administration. Instead, a decision was taken to cancel all the identity cards issued as well as the Form 6B Register that was being maintained by the society. It was decided that fresh identity cards would be issued to all the members of the society and that a fresh Form 6B Register would be prepared on district wise division. The society is one having the entire state as its area of operation. Though the process of issuing fresh identity cards have commenced thereafter, not even 10% of the members have been actually issued with identity cards, as on date. Consequently, the polling on 13/9/2014, would be conducted, excluding the vast majority of members who have the right to participate and vote in the process of election. It is pointed out that, the fourth respondent had sought for extension of the time limit stipulated by this Court for conducting the election, contending that at least six months time was required for completing the process of WPC 22117/2014 3 issuing identity cards to all the members. The said period of six months would expire only in December 2014. Since this Court did not extend the time limit as sought for, the election is proposed to be held on 13.9.2014. The present election would not be proper and valid for the reason that, majority of the members are excluded from casting their votes. 3. The contentions of the petitioners are opposed by the Special Govt. Pleader Shri. D.Somasundaram who appears for the third respondent as well as Shri. George Poonthottam, Advocate, who appears for the fourth respondent. Separate counter affidavits have been filed by respondents 3 and 4. According to the third respondent, Electoral Officer, the voters list contains the names of 44448 persons. Proper notices have been published in three leading newspapers putting the members on notice that fresh identity cards were being issued and directing them to collect their identity cards by producing fresh photographs. It is stated that the process of issuing WPC 22117/2014 4 fresh identity cards would be continued up to 11.9.2014. As at present, more than 11000 persons have already collected their identity cards. The identity cards of the petitioners are ready to be received from the office of the fourth respondent. However, only the third petitioner has received the same. According to the Electoral Officer, since the entire process has been computerised it takes only one minute to issue an identity card to a member. Therefore, any person who approaches the office with two passport size photographs would be issued with identity cards without any delay. It is stated that the third respondent has personally verified the arrangements and has satisfied himself of the efficacy thereof. 4. According to the counter affidavit of the fourth respondent, Exts.R4(a), R4(b) and R4(c) are the notices issued in the Indian Express, Kerala Kaumudi and Malayala Manorama newspapers respectively notifying the members of the necessity of obtaining fresh identity cards for the WPC 22117/2014 5 purposes of participating in the election. Ext.R4(d) is the order passed by a Division Bench of this Court extending the time for conduct of the election up to 20.10.2014. According to Adv.George Poonthottam who appears for the fourth respondent no complaint from any member of the society has been received regarding refusal to issue identity cards or even delay in issuing the same. Though it is contended by the counsel for the petitioners that a large section of the members have not been issued with identity cards, it is contended that going by the polling figures of the previous years, it is evident that a good majority of the members of the fourth respondent do not show any interest in participating or voting in the election. It is pointed out that the polling has always been in the region of 5000 votes. Since all arrangements have been made for the issue of fresh identity cards to all the members, merely for the reason that a good section of the members have not come forward to obtain identity cards it cannot be presumed that they have been WPC 22117/2014 6 denied the opportunity to participate in the election. Unless the members voluntarily approach the office of the fourth respondent, it is contended that it is not possible to issue identity cards to them. The fact that no member has made any complaint regarding the manner in which identity cards are issued, shows that the petitioners are only raising objections without any basis. 5. The learned Senior Counsel Shri. K.Gopalakrishna Kurup on the other hand contends that since time is available till 20.10.2014, no prejudice would be caused to any one by having the date of polling postponed, by one month so as to provide opportunity to all the members to obtain the identity cards. Having come before this Court and sought for an extension of the time up to December 2014 contending that six months' time was necessary to complete the process of issue of fresh identity cards, it is not open to the respondents to contend now that identity cards have been issued to sufficient number of members for the purpose of holding the WPC 22117/2014 election on 13.9.2014. 7 6. The Special Govt. Pleader Shri. D.Somasundaram who represents the Electoral Officer points out that the third respondent has personally visited the office of the fourth respondent, inspected the arrangements made and has satisfied himself of the efficacy thereof. Particular reference is made to paragraph 3 of the counter affidavit wherein the third respondent has stated that he has satisfied himself upon verification that only about a minute is necessary for the issue of an identity card to a member. Any member who has any complaint regarding the manner in which the identity cards are issued has a remedy of preferring a complaint to the third respondent under Rule 35A(5) of the Kerala Co-operative Societies Rules, 1969 (the 'Rules' for short). Any such complaint, if received, would be promptly attended to and redressed, assures the third respondent. Therefore, it is contended that it is not necessary to postpone the polling for the said purpose. In answer to the contention of the learned WPC 22117/2014 8 Senior Counsel for the petitioners, the learned Special Govt. Pleader places reliance on the decision of this Court in V.S.S.C.Employees Co-op. Society v. Registrar and others {1993(2) KLJ 89} and the order of a Division Bench of this Court in R.P.212/2010 by which, the judgment in WPC 30106/2009 has been modified. Therefore, it is contended that, no member who does not collect his identity card within the time stipulated would be permitted to cast his vote. 7. Heard. The question of conducting election to the fourth respondent society was the subject matter of WPC 532/2014. W.A.371/2014 was filed against the judgment in the said writ petition. As per Ext.P4 judgment, it was directed that, the election should be completed by the end of July 2014. Paragraph 12 of Ext.P4 judgment reads as follows:- “12. However, as contended by the learned counsel for the appellant, even if the Election Commission has declined to act upon a resolution of the society and schedule of election, it is WPC 22117/2014 9 necessary that the situation should be remedied. In view of this, we directed the learned Special Govt. Pleader (Co-operative Societies) to obtain instructions from the Administrator appointed on the further action that he has taken and the time limit that is required to complete the issuance of ID card, to regularize the Form 6B Register and to complete the election. Thereupon, he has obtained instructions and informed us that Form 6A ID cards will be issued to the members and Form 6B Register will be prepared and that this process will be completed before the end of May, 2014. He has also undertaken that the election process will be completed by the end of July, 2014. We record the submission and direct that the schedule undertaken before us be honoured in its letter and spirit.” Pursuant to the above judgment, the entire 6B Register was cancelled by the Registrar of Co-operative Societies as per Ext.P5 order dated 29.4.2014. The said order has also permitted preparation of a fresh Form 6B Register and issue of fresh identity cards to all the members. It was on the basis WPC 22117/2014 10 of Ext.P5 that, the present exercise of issue of fresh identity cards has commenced. 8. It is not in dispute that, though the total membership of the society is about 45000, only about 11000 members have been issued with fresh identity cards. It is contended by the counsel for the fourth respondent that, the process of issuing identity cards is progressing vigorously and presently, identity cards are being issued at the rate of 200 numbers per day. However, at the above pace also it is not likely that all the members who are borne on the final voters list would be issued with identity cards before 11.9.2014. At the same time, it is pertinent to take into account the fact that, a large section of the membership of the fourth respondent society are persons who are disinterested in the process of election. It is not in dispute that, as stated in paragraph 5 of the counter affidavit of the fourth respondent, in the previous elections starting from 1996 to 2009, the number of persons who have cast their votes has not been more than 5000. It WPC 22117/2014 11 is only in 2009, 5217 members have cast their votes. However, it is also necessary to ensure that, no person who is interested in participating in the election should be deprived of the opportunity to do so merely for the reason that, an identity card could not be issued during the time limit stipulated by Ext.P7. It is certainly necessary for the members to co-operate with the process of election, strictly adhering to the schedule in Ext.P7 and to collect their identity cards with promptitude. Only with the co-operation of all concerned would it be possible to have a proper election conducted as scheduled, and in accordance with the directions contained in Ext.P4 judgment. 9. In the above context, it is relevant to take into account the assurance contained in paragraph 3 of the counter affidavit of the third respondent which is extracted hereunder for convenience of reference:- “Regarding the issue of ID Cards I am satisfied that the Society is taking effective steps to issue ID cards to all members on WPC 22117/2014 12 application and 6B register is kept in the society as per the prescribed form in the district wise. No complaint in this regard was filed before me in this respect so far with regard to issue of ID cards. Members who have not taken ID card has right to get it from the office of the Society before 48 hours of the date fixed for poll and directions to that effect was given to the Secretary of the said Society. As per Sub rule 5 of Rule 35A of the Kerala Co-operative Societies Rules if any member has complaint against non issue of the identity card he can make the complaint and such complaint will be entertained and action will be taken to issue I cards. As per the present situation I am convinced that for getting the ID card less than one minutes need only to be spent by the member who came with two passport size photographs in the society office. A person who is not prepared to spend few minutes for taking identity card he has no justification in complaining that identity cards are not being issued to the members.” 10. Considering the large membership of the fourth WPC 22117/2014 13 respondent society as well as its area of operation spread over to the entire State, what is possible is only to provide opportunity to the members to participate in the election. Sub Rule (5) of Rule 35A provides as follows:- “35A. Procedure regarding conduct of election to the committee of Societies by the State Cooperative Election Commission:- The election of the members to the committee of Societies by the State Co-operative Election Commission shall be conducted in the following manner.- xx xx xx xx xx xx xx xx (5) The persons included in the voters list should be supplied with the identification cards (in Form No.6A) on request of the member who will bring 2 passport size photographs, recently taken. The issue of identification cards shall be stopped before 2 days prior to the date of poll. The Chief Executive of the society is responsible for the issue of identification cards to the members. Any complaint in this regard will be entertained by the Electoral Officer who shall take a decision on the complaint before two days prior to the date of poll.” WPC 22117/2014 14 As per the above provision, any complaint regarding the nonreceipt of identity cards has to be made to the third respondent. In view of the assurance contained in paragraph 3 extracted above, I am satisfied that the third respondent would do all that is necessary to attend to the complaints if any received from any of the members. The process of issue of identity cards can therefore, continue as per schedule up to 11.9.2014. If it is found by the third respondent that a large number of complaints are received justifying a conclusion that a substantial section of the members would be prevented from casting their votes due to non-receipt of identity cards, it shall be open to the said respondent to report the matter to the State Co-operative Election Commission. The State Cooperative Election Commission shall in such a situation be at liberty to issue necessary orders postponing the polling by a suitable period of time so as to enable the complainants to be supplied with necessary identity cards. The object of the above direction is to ensure that no person who is interested WPC 22117/2014 15 in participating in the election is excluded or prevented from doing so solely for the reason that he is not able to obtain an identity card within the time stipulated by Ext.P7. Except for making provision for the above, I am not satisfied that any interference with Ext.P7 is called for at this stage. In view of the above this writ petition is disposed of with the following directions:- i) The process of issuing fresh identity cards to members shall be continued as scheduled up to 11.9.2014 in accordance with Ext.P7. ii) If complaints are received from any member regarding non-receipt of identity cards by the third respondent, such complaint shall be redressed as far as possible within the time limit stipulated by Ext.P7. If the complaints received are so voluminous as to make it impossible to attend to all of them within the time stipulated by Ext.P7 the third respondent shall report the matter to the first respondent, who shall issue necessary orders postponing the polling alone from 13.9.2014 WPC 22117/2014 16 as scheduled by Ext.P7 to a convenient date within the outer limit stipulated by Ext.R4(d) order of the Division Bench. Sd/K. SURENDRA MOHAN Judge jj /True copy/