Kanjirapally Service Co-Operative Bank Ltd. v. State Co-operative Election Commission and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 30TH DAY OF JULY 2019 / 8TH SRAVANA, 1941** **WA.No.1704 of 2019** **AGAINST THE JUDGMENT IN WP(C).19149/2019 of HIGH COURT OF KERALA** ## **APPELLANT/4TH RESPONDENT:** **KANJIRAPALLY SERVICE CO-OPERATIVE BANK LTD.NO.2061 REPRESENTED BY ITS SECRETARY, KANJIRAPALLY, KOTTAYAM.** **BY ADVS. SRI.P.RAVINDRAN (SR.) SMT.LAKSHMI RAMADAS SRI.SREEDHAR RAVINDRAN** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3:** - **1 JAMES SEBASTIAN, (MEMBER NO.18948) KARIPPAPARAMBIL, AANAKKAL P.O., KANJIRAPALLY, KOTTAYAM DISTRICT-686 507.** - **2 JOHN MATHEW** **(MEMBER NO.23043) MUNDAPALLIL KANJIRAPALLY P.O., KOTTAYAM DISTRICT-686507.** - **3 STATE CO-OPERATIVE ELECTION COMMISSION REPRESENTED BY ELECTION COMMISSIONER, 3RD FLOOR, CO-BANK TOWERS, PALAYAM, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033.** - **4 ELECTORAL OFFICER TO KANJIRAPALLY SERVICE CO-OPERATIVE BANK, KANJIRALLY ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANJIRAPALLY, KOTTAYAM-686507.** **WA. No.1704 of 2019** **2** **5** **RETURNING OFFICER KANJIRAPALLY SERVICE CO-OPERATIVE BANK, UNIT INSPECTOR, KANJIRAPALLY, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KANJIRAPALLY, KOTTAYAM-686 507.** **BY ADVS. SRI.R.LAKSHMI NARAYANAN FOR R3 SRI.P.N.MOHANAN FOR R1 & R2 SRI.MOHAMMED HASHIM, SPL.GOVT. PLEADER FOR R4 & R5** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 30.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA. No.1704 of 2019** **3** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Ravikumar, J.**_ This writ appeal filed by the 4[th] respondent in W.P. (C) No.19149/2019 is directed against the judgment passed thereon. The writ petition was filed by respondents 1 and 2 herein, who are members of the appellant - Society. Essentially, their contention was that election could not be conducted in terms of Ext.P1 notification based on Ext.P2 voters list. This stand is founded on the contention that by any stretch of imagination, Ext.P2 could not be taken as an electoral roll prepared strictly adhering to the mandate under Rule 35A(4) of the Kerala Co-operative Societies Rules, 1969 ('KCS Rules', for short). The mandate for providing admission number, name of father/husband of the member and such other particulars under Rule 35A(4) was not followed in Ext.P2 **WA. No.1704 of 2019** **4** list. It is _inter alia_ raising such contentions that they had called in question the action for conducting election as scheduled under Ext.P1 based on Ext.P2 voters list. The appellant herein as also the other respondents filed separate counter affidavits and resisted the contentions of the writ petitioners/respondents 1 and 2 herein. After considering the rival contentions and taking into account the relevant provisions as also the judicial pronouncements that the learned Single Judge passed the impugned judgment. As per the same, the learned Single Judge virtually left the discretion to the Election Commission to decide as to whether election could be conducted based on Ext.P2 voters list. A scanning of the impugned judgment would reveal that though liberty was given to the Election Commission to decide whether election should be conducted based on Ext.P2 voters list, the learned Single Judge virtually entered into a _prima facie_ finding that Ext.P2 is a voters list, which was prepared in tune with the provisions under Rule 35A(4) of the KCS Rules. Subsequent to the passing of the impugned judgment, but prior to the filing of the captioned **WA. No.1704 of 2019** **5** appeal, Annexure-A2(a) notification was issued by the Election Commission cancelling Ext.P1 notification. That apart, instruction was issued thereunder to the Assistant Registrar (General) to issue identity cards strictly in accordance with the provisions under the KCS Act and the Rules in Form-6A. A perusal of the same would also reveal that a further direction was issued thereunder to prepare a list of persons qualified to vote in the election and then to prepare and publish a preliminary voters list and after considering the objections received, if any, to publish the final voters list. As noticed hereinbefore, this appeal has been filed by the 4[th] respondent in the writ petition, which is the Society represented by its Secretary. The learned counsel appearing for the writ petitioner has raised a contention that an appeal at the instance of the Secretary of the Society is not maintainable. 2. We have heard the learned Senior Counsel appearing for the appellant, the learned counsel appearing for respondents 1 and 2, the learned Standing Counsel for the 3[rd] respondent and the learned Special Government Pleader for **WA. No.1704 of 2019** **6** respondents 4 and 5. 3. We will firstly consider whether the objection raised by the learned counsel appearing for respondents 1 and 2 herein/the writ petitioners as mentioned above, regarding the maintainability, is sustainable. As noticed hereinbefore, the contention is that an appeal preferred by the Secretary cannot be maintained. The learned Senior Counsel appearing for the appellant submitted that a bare perusal of the cause title and the pleadings would reveal that the appeal is not actually preferred by the Secretary and in fact, it is preferred by the Society. The learned Senior Counsel drew our attention to Section 9 of the Kerala Co-operative Societies Act,1969 ('KCS Act', for short). A bare perusal of Section 9 of the KCS Act would reveal that no volume of argument is required to repel the contention regarding the maintainability raised by the learned counsel appearing for respondents 1 and 2 herein. Section 9 would reveal that a Society registered under the provisions of the KCS Act could institute and defend suits and other legal proceedings and to do all things necessary for the **WA. No.1704 of 2019** **7** purposes for which it was constituted. In this context, it is also to be noted that in fact, the Society represented by its Secretary was impleaded as the 4[th] respondent in the writ petition, from which this appeal arose, by respondents 1 and 2 herein themselves. Hence, when the 4[th] respondent feels aggrieved by the judgment passed in the writ petition, how respondents 1 and 2 who were the petitioners therein resist the appeal challenging the right to maintain an appeal when there is no statutory disability for the 4[th] respondent to institute legal proceedings. We see no ground to uphold their objection and hence, it is repelled. 4. The arguments advanced by the learned Senior Counsel appearing for the appellant and the pleadings in the appeal would reveal that essentially the core contention is that the finding of the learned Single Judge that Ext.P2 cannot be the basis for election, is unsustainable. It is submitted that a perusal of the provisions under Section 35A(6)(n)(ix) would reveal that to identify the voter included in the voters list and to permit him to cast the vote at the time of polling, the person, **WA. No.1704 of 2019** **8** whose name is included in the voters list, need only to produce an identity card or any other documents as enumerated in the Rule itself acceptable as a document revealing one's identity. The necessary corollary is that in case of failure to produce any such document, he would not be issued with ballot paper for casting vote. It is the further contention that in such circumstances, the issue whether an identity card is laminated or not got no relevance or significance as the very purpose of issuance of identity card is only to enable identification of the voter concerned. It is also contended that till date no authority under the KCS Act had issued any Circular or guidelines banning the use of laminated identity cards. It is also the contention that a perusal of Rule 35A(4) of the KCS Rules would reveal that it does not mandate for inclusion of the age of the voters concerned in the electoral roll. Therefore, according to the appellant, inclusion of the age of voters in Ext.P2, even if it is wrong, cannot be a reason for holding Ext.P2 as a voters list prepared not in tune with the mandate under Rule 35A(4) of the KCS Rules. **WA. No.1704 of 2019** **9** 5. We have bestowed anxious consideration to the rival contentions on the question whether Ext.P2 is a list prepared in tune with the provisions under Rule 35A(4) of the KCS Rules. Ext.P2 contains the names of 15717 voters and among them a sizable number of persons is shown to have crossed the age 100 years. Going by Ext.P2, a voter by name Chacko M.C., whose name is figured against Sl. No.328, is aged 162 years. Running page 42 of the appeal, which is the internal page 7 of Ext.P2, would reveal that six voters have crossed the age of 140 years. In fact, there is no dispute with respect to the position that in Ext.P2, the age of most of the members eligible to vote is given wrongly. Even appellant did not have a case that those persons shown to have crossed the age of 100 years are its live members. In this context, it is relevant to note the contention of the learned counsel appearing for petitioners 1 and 2 is that, in fact, Ext.P2 contains the names of dead persons. What makes matters worse is the absence of name of father or husband of the voters in Ext.P2. In this context, it is only apropos to extract **WA. No.1704 of 2019** **10** ## Rule 35A(4) of the KCS Rules and it reads thus:- _“The State Co-operative Election Commission shall appoint an Electoral Officer from among the officers of the concerned. Administrative Department who shall be responsible for the publication of the list of members qualified to vote at the election in accordance with the provisions of the Act, rules and bye-laws as stood on a date 60 days prior to the date fixed for the poll. The list shall contain the admission number, name of the member, name of father or husband and the address of such member. Such list shall also contain the name and other particulars of the delegate in cases where the member is a society or corporation or a statutory or non-statutory Board, Committee or other body of persons which is a member of another society or Government. It shall be the duty of the Chief Executive of the concerned society to prepare, up date the list as per the Rules and submit voters list duly approved by the Committee, to the Electoral Officer within thirty five days prior to the date fixed for election and render all assistance required by the Electoral Officer. It is the duty of the Electoral Officer to publish the preliminary voters list in Form No.34 in the Notice Board of the Head Office and branches if any, of_ **WA. No.1704 of 2019** **11** _the society and call for objections if any, on the voters list within seven days of publication and publish final voters list in Form No.35 within twenty days prior to the date fixed for the poll. The final voters list so prepared should be published in the Head Office and branches of the concerned society. A copy of such list shall be supplied by the society to any member on payment of such fees as may be prescribed by the committee of the Society.”_ Thus, there is fatal infraction of mandates under Rule 35A(4) in the matter of preparation of Ext.P2 voters list. How can such clear violations which would certainly disable identification of voters included in Ext.P2 could be overcome by the mere production of an identity card or any other document enumerated in Rule 35A(6)(n)(ix) of the KCS Rules. There can be no doubt that the very purpose of requiring production of identity cards or other documents mentioned in Rule 35A(6)(n) (ix) of the KCS Rules is to have assurance of the fact that the voter concerned whose name is included in the voters list drawn for the purpose of election is the very person who turns **WA. No.1704 of 2019** **12** up in the polling booth to cast vote. Taking into account such infirmities and illegalities that infected Ext.P2, we have no hesitation to agree with the findings of the learned Single Judge that Ext.P2 cannot be said to be a voters list drawn adhering to the mandate under Rule 35A(4) of the KCS Rules. At any rate, it cannot be the basis for a free and fair election. 6. A perusal of Section 28B of the KCS Act would reveal that the State Co-operative Election Commission is constituted for the purpose of Superintendence, direction and control of the preparation of electoral rolls and for the conduct of all elections to Co-operative Societies including election to the President/Vice President and Representative General Body. Thus, it can be seen that it is precisely for the purpose of conducting election to Co-operative Societies in a free and fair manner that the Election Commission has been constituted. When that be so, if the Election Commission on perusing the voters list prepared finally for the purpose of conducting election, arrived at a conclusion that it is not one which is strictly prepared in tune with the mandate under Rule **WA. No.1704 of 2019** **13** 35A(4) of the Rules and no fair election could be conducted based on such list and consequently postpones the election process for holding election with a proper electoral roll prepared in accordance with the statutory mandate, such interference and postponement cannot be said to be illegal or perverse. 7. True that as per the impugned judgment passed in W.P. (C) No.19149/2019, the learned Single Judge left it to the Election Commission to decide whether an election could be conducted based on Ext.P2 voters list. As noticed hereinbefore, such liberty was granted after entering into a finding to the effect that _prima facie_ Ext.P2 cannot be said to be a list drawn in tune with the provisions under Rule 35A(4) of the KCS Rules. We do not think that the said _prima facie_ clear finding of the learned Single Judge could be taken as a ground for interfering with the decision of the Election Commission that Ext.P2 cannot be the basis for conducting a fair election and the consequential postponement of election. Shortly stated, wee see no ground to interfere with the decision that no **WA. No.1704 of 2019** **14** election could be conducted based on Ext.P2 voters list. That apart, it is to be noted that going by Ext.P1 notification, election was to be conducted on 21.07.2019. It is also a fact that election was not conducted on that day. In such circumstances, it is impossible to conduct election as per Ext.P1 notification. In the facts and circumstances based on the ill-drawn voters list viz., Ext.P2, election cannot be ordered to be conducted. In other words, election has to be conducted afresh after preparing a voters list strictly adhering to the mandate under Rule 35A(4) of the KCS Rules. That exactly is the decision of the Election Commission as is discernible from Annexure-A1. The power of the Election Commission to postpone the election on sustainable grounds, is unquestionable. The Election Commission has been constituted under Section 28B of the KCS Act for the superintendence, direction and control of the conduct of elections to the Committees and Representative General Bodies of all credit, apex, central and Federal Societies in the State. In other words, to conduct election in a fair manner, it is empowered to postpone the election when it is **WA. No.1704 of 2019** **15** found that the voters list prepared and published does not meet the statutory mandate of Rule 35A(4) of the KCS Rules. Our view is fortified by a Division Bench decision of this Court in _**Velloor Service Co-operative Bank Limited Pampady v. State of Kerala and others** [2015 (1) KLT 38]_ . We have also taken note of the decision of the Election Commission made as per Annexure-A2(a). The Election Commission has issued an appropriate direction to the Chief Executive of the appellant - Bank and also to the Assistant Registrar (General), Kanjirappally to prepare a list of persons qualified to vote in the election to the appellant - Society. Needless to say that going by the mandatory provisions under Rule 35A(4) of the KCS Rules, it is the duty of the Chief Executive of the Bank to furnish such a list to the electoral officer to enable him to publish a preliminary voters list and after calling for objections and considering objections, if any, to prepare and publish a final voters list for the purpose of conducting election. Therefore, in respect of such matters, the provisions under Rule 35A(4) of the KCS Rules shall be strictly followed. **WA. No.1704 of 2019** **16** 8. A perusal of Annexure-A2(a) would reveal that another issue was also addressed by the Election Commission. It is with respect to issuance of identity cards. From the pleadings of the appellant itself, it is evident that in the Society, the members were issued with laminated identity cards. True that there is no challenge against Annexure-A2 in this appeal. But, at the same time, when the indisputable position is that Ext.P2 cannot be the basis for conducting an election, we are of the view that it is only proper now to look into the question whether it is appropriate for the authorities to cure the defects in regard to identity cards, in accordance with with the provisions under the KCS Act and KCS Rules and to issue it in Form No.6A. In the contextual situation, the decision of a Division Bench of this Court in _**R.G. Harilal v. The Joint Registrar of Co-operative Societies (General) and others** [2018 (5) KHC 902 (DB)]_ assumes relevance. In the said decision, this Court held that issuance of laminated identity cards so long as it is impermissible in terms of Rule 16A, election would be vulnerable to challenge if laminated cards **WA. No.1704 of 2019** **17** with bar code are used. In the light of the said decision and the statutory mandate, it is only appropriate to take steps for issuance of identity cards to the members of the Society strictly in accordance with the provisions of the Act and the Rules in Form No.6A. In short, urgent steps shall be taken to issue cards strictly in Form No.6A. 9. There is no material available on record which would reveal fixation of any date for conduct of the postponed election. In fact, Annexure-A2 would reveal that election was postponed and virtually the election notification itself was cancelled thereunder. But there can be no doubt that an election to a co-operative society cannot be held up indefinitely. This position was considered in the different context by a Division Bench of this Court in _**Joint Registrar, Palakkad and another v. K. Sivaraman and another** [ILR 1993 (3) Ker. 291]_ . In the case on hand, after the pronouncement of the impugned judgment, invoking the power under Section 33 of the Act, the Joint Registrar (General) has passed an order on 26.07.2019 appointing a Part Time Administrator to the Society. Going by **WA. No.1704 of 2019** **18** the said provision, maximum endeavour should be made to conduct election to the society concerned within a period of six months. Ext.P2 would reveal that 15717 persons are shown as members eligible to cast vote in the election to the Society. A perusal of the same would suggest some substance in the contention of the learned counsel for the writ petitioners/respondents 1 and 2, that it includes the names of dead persons. We made the said observation taking note of the age of certain members shown in Ext.P2 which we have already adverted to. It is the bounden duty of the Chief Executive Officer of the Bank and also the electoral officer to ensure that the list to be prepared in accordance with Rule 35A(4) of the KCS Rules contains only the names of living persons who are entitled to cast vote in the election to the Society. It shall also be ensured that all necessary details to be furnished in a voters list shall be included in the said list. For the said purpose, especially taking note of the number of members in the Society, going by Ext.P2, it is only proper to have an Administrative Committee in place of a part time **WA. No.1704 of 2019** **19** Administrator so as to enable conduct of election within the said period considering volume of work to be undertaken. Since the Administrator was already appointed, we are of the view that she can act as the Convenor of the Administrative Committee. Two other members of the previous Managing Committee shall be nominated by the Joint Registrar of Co-operative Societies (General), Kottayam to act as members of the Administrative Committee. While identifying such persons, the Joint Registrar shall ensure that they are members against whom no proceedings have so far been initiated, either under the Act or the Rules. In case of non-availability of such members, it will be open to the Joint Registrar to identify suitable persons from the other members of the Society. The said Administrative Committee shall initiate appropriate steps to enable the Chief Executive of the Bank to prepare and make available a list of voters qualified to vote in accordance with the provisions under Rule 35A(4) to the Electoral Officer. Needless to say that on its receipt, the Electoral Officer shall take appropriate steps for publication of **WA. No.1704 of 2019** **20** the preliminary voters list and also to prepare a final voters list after considering the objections, if any, received against the preliminary voters list. Needless to say that simultaneous with the preparation of the list of members qualified to vote, the Administrative Committee shall also pass resolution and forward in accordance with law to the Election Commission so as to enable to issue proper notification for the conduct of the election. After complying with all statutory procedures, election to the Society shall be conducted within a period of six months from 26.07.2019. Subject to the above, this appeal is disposed of. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks/02.08.2019 **WA. No.1704 of 2019** **21** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1** **TRUE COPY OF THE NOTIFICATION DATED 27.5.2019.** **ANNEXURE A2** **TRUE COPY OF THE COMMUNICATION OF THE ASSISTANT REGISTRAR DATED 19.7.2019.** **ANNEXURE A2(A)** **TRUE COPY OF THE PROCEEDINGS OF THE ELECTION COMMISSION DATED 16.7.2019.** **ANNEXURE A2(B) TRUE COPY OF THE COMMUNICATION OF THE ASSISTANT REGISTRAR DATED 19.7.2019. ANNEXURE A2(C) TRUE COPY OF THE NOTICE OF THE** **TRUE COPY OF THE NOTICE OF THE ELECTION COMMISSION DATED 19.7.2019.**