Kunhimohammed Manningal v. State Co-operative Election Commission & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935 ## **W.P.(C).No.25280 of 2013 (H)** ------------------------------------------------- ## PETITIONER:- --------------------- KUNHIMOHAMMED MANNINGAL, S/O. MAMMUKKUTTY, PRESIDENT, PONMUNDAM SERVICE CO-OPERATIVE BANK LTD. NO.10820, KUTTIPALA.P.O., EDARIKODE (VIA), MALAPPURAM DISTRICT. BY ADVS.SRI.M.SASINDRAN SRI.V.VENUGOPAL RESPONDENTS:- ------------------------- 1. THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM - 695 001. 2. THE ELECTORAL OFFICER, PONMUNDAM SERVICE CO-OPERATIVE BANK LTD. NO.10820, KUTTIPALA.P.O., EDARIKODE (VIA), MALAPPURAM DISTRICT - 676 505. [THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL), TIRUR, MALAPPURAM DISTRICT]. 3. THE RETURUNING OFFICER PONMUNDAM SERVICE CO-OPERATIVE BANK LTD.NO.10820, KUTTIPALA.P.O., EDARIKODE (VIA), MALAPPURAM DISTRICT - 676 505. (UNIT INSPECTOR, TANUR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), TIRUR, MALAPPURAM DISTRICT. 4. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MALAPPURAM-676505. 5. C. VOPALAKRISHNAN, S/O. KRISHNAN NAIR, KAVAPPURA, ADRUSSERY.P.O., TIRUR (VIA), MALAPPURAM - 676 505. W.P.(C).NO.25280 OF 2013-H - 2 - ## ADDITIONAL 6TH RESPONDENT IMPLEADED: ---------------------------------------------------------------- ADDL.R6. THE ADMINISTRATIVE COMMITTEE, PONMUNDAM SERVICE CO-OPERATIVE BANK LTD. NO.10820, KUTTIPALA.P.O., EDARIKODE (VIA), MALAPPURAM DISTRICT - 676 505, REPRESENTED BY ITS CONVENER. (ADDITIONAL 6TH RESPONDENT IS IMPLEADED AS PER ORDER ON I.A.NO.14816 OF 2013 DATED 29.11.2013). R1 TO R4 BY SPECIAL GOVERNMENT PLEADER SRI.D.SOMASUNDARAM. R5 BY ADV. SRI.GEORGE POONTHOTTAM R6 BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- WP(C).No.25280 of 2013 (H) ---------------------------------------- ## **APPENDIX** |PETITIONER'S EXHIBITS:-|PETITIONER'S EXHIBITS:-| |---|---| |-------------------------------------|| |EXT.P1.|A TRUE COPY OF THE ORDER DATED 27-8-2013 APPOINTING THE| ||ELECTORAL OFFICER AND RETURNING OFFICER FOR CONDUCTING| ||ELECTION TO THE COMMITTEE ON 20-10-2013.| |EXT.P2.|A TRUE COPY OF THE NOTIFICATION PUBLISHED ON CHANDRIKA DAILY| ||DATED 7-9-2013.| |EXT.P3.|A TRUE COPY OF THE NOTIFICATYION DATED 12-9-2013 PUBLISHING| ||THE PRELIMINARY VOTERS LIST, BY THE ELCTROAL OFFICER.| |EXT.P4.|A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE MEMBER OF| ||THE SOCIETY BEFORE THE ELECTORAL OFFICER.| |EXT.P5.|A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE MEMBER OF| ||THE SOCIETY BEFORE THE ELECTORAL OFFICER.| |EXT.P6.|A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE MEMBER| ||OF THE SOCEITY BEFORE THE ELECTORAL OFFICER.| |EXT.P7.|A TRUE COPY OF THE LETTER DATED 19-9-2013 ISSUED BY THE| ||ELECTROL OFFICER TO THE SOCIETY.| |EXT.P8.|A TRUE COPY OF THE PROCEEDINGS DATED 20-9-2013 OF THE| ||ELECTORAL OFFICER, CONSIDERING THEIR OBJECTIONS RAISED BY| ||THE MEMBERS REGARDING THE PRELIMINARY VOTERS LIST.| |EXT.P9.|A TRUE COPY OF THE LIST OF MEMBERS WHO WERE DELETED FROM| ||THE VOTERS LIST WHILE PUBLISHING THE FINAL LIST.| |EXT.P10.|A TRUE COPY OF THE NOTICE DATED 23-9-2013 PUBLISHING THE FINAL| ||VOTERS LIST FOR CONDUCTING ELECTION ON 20-10-2013.| |EXT.P11.|A TRUE COPY OF THE FINAL LIST OF CANDIDATES PUBLISHED ON| ||5-10-2013.| |EXT.P12.|A TRUE COPY OF THE PROCEEDINGS NO.E(2)/2506/2013/SCEC| ||DATED 10-10-2013 ISSUED BY THE FIRST RESPONDENT WITHDRAWING| ||THE ELECTION NOTIFICATION.| |EXT.P13.|A TRUE COPY OF THE PROCEEDINGS NO. E(2)2506/2013/SCEC| ||DATED 10-10-2013 ISSUED BY THE FIRST RESPONDENT WITHDRAWING| ||THE EXHIBIT P1 PROCEEDINGS.| |EXT.P14.|A TRUE COPY OF THE RESOLUTION DATED 19-10-2013 OF THE| ||SOCIETY RESOLVING TYO CONDUCT ELECTION ON 27.10.2013.| W.P.(C).NO.25280 OF 2013-H - 2 - EXT.P15. A TRUE COPY OF THE REQUEST DATED 19.10.2013 SUBMITTED BEFORE THE ELECTION COMMISSION FOR CONDUCTING ELECTION AS PER THE EXT.P14 RESOLUTION. EXT.P16. A TRUE COPY OF THE REQUEST DATED 19.10.2013 SUBMITTED BEFORE THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES. EXT.P17. A TRUE COPY OF THE POSTAL RECEIPT SHOWING SEND OF THE EXT.P14 AND P15 TO THE ELECTION COMMISSION ON 19.10.2013. ## RESPONDENTS' EXHIBITS:- ---------------------------------------- NIL. vku/- K.Vinod Chandran, J. ----------------------------------------- W.P.(C).No.25280 of 2013-H ------------------------------------------Dated this, the 29[th] day of November, 2013 ## JUDGMENT The petitioner is a member of the Ponmundam Service Co-operative Bank (for brevity “the Society”) and is also the President of the outgoing Committee of the Society. An election was scheduled on 20.10.2013, as per a resolution taken by the outgoing Committee. The schedule of election was as per Exhibit P2 notification. 2. Before the Electoral Officer, three members submitted objections to the draft voters list, which is produced as Exhibits P4 to P6 herein. The Electoral Officer, after considering the objections as also the materials produced before him by the Society, passed an order, Exhibit P8, deleting certain members from the draft voters list and published the final voters list. The list of members who were removed as per the objections is exhibited as Exhibit P9. After publication of the final voters list and the publication of the final list of candidates on 10.10.2013, when, what was remaining was only the polling; the Election Commission issued Exhibit P12 cancelling the elections and directing the Joint Registrar to look into the objections filed before the Electoral Officer. W.P.(C).No.25280 of 2013-H **- 2 -** 3. A reading of Exhibit P12 would show that after Exhibits P8 and P9 were issued by the Electoral Officer, the 5[th] respondent, who was one of the objectors before the Electoral Officer, along with some others, filed an objection before the Election Commission regarding the inclusion of ineligible members in the final voters list. It was this complaint which was directed to be considered by the Joint Registrar (General), who, allegedly, reported that there are a number of ineligible members in the final voters list. On the finding that this may lead to ineligible members casting their votes in the election, the Election Commission cancelled the polling scheduled on 20.10.2013. 4. The petitioner, who is the President of the outgoing Committee, had immediately moved this Court with the above writ petition and had sought for a direction to the Election Commission to go ahead with the polling on the scheduled date. However, this Court, noticing the binding precedent of a Division Bench in _**George Kuruvila and Others v. Kerala State Co-operative Election Commission and Others**_ **[2010 (1) KHC 561]** found that the cancellation of the elections having been published in newspapers, it may not be proper for this Court to direct the Election Commission to go ahead with the polling. However, while refusing such a direction, this Court also noticed so in paragraph 2 of the interim order: **- 3 -** W.P.(C).No.25280 of 2013-H “This Court cannot but notice that there is no specific allegation or complaint in Ext.P5 against a particular member/s individual/s nor is it evident from Ext.P12 that the Election Commission has sought for any report of the Electoral Officer who was appointed by the Election Commission, for the purpose of conducting elections scheduled as per Ext.P1. The Election Commission has called for a report from the Joint Registrar, Malappuram, based upon which, the cancellation of election has been done, which, according to this Court, may not be within the contours of the jurisdiction conferred on the Election Commission, even going by the constitutional amendment pointed out by the learned counsel appearing for the 5[th] respondent”. 5. Subsequently the Administrative Committee was impleaded herein, as additional 6[th] respondent, and the said Administrative Committee had resolved to conduct the election on 27.10.2013 and submitted the same to the Election Commission for conduct of the polling. The said resolution is no more valid, since the date itself is now over. The prayer before this Court when the above writ petition came up for hearing is for a direction to the Election Commission to resume the conduct of the elections from the stage at which it was stopped. The learned Special Government Pleader (Co-operation), however, contends that the situation prevailing at the time of withdrawal of the notification for election still persists. The **- 4 -** W.P.(C).No.25280 of 2013-H learned counsel for the 5[th] respondent too supports the Government's stand and argues that once the election is cancelled, it cannot be resumed. 6. The learned counsel for the petitioner as also the learned Special Government Pleader would raise contentions as to the jurisdiction of the Election Commission, which, in the nature of the orders to be passed in the writ petition and the facts disclosed in the instant case, is not required to be considered. Evidently the objections filed are Exhibits P4 to P6, which does not make any specific complaint against the inclusion of any individual voter. All the three complaints merely state that there is inclusion of a large number of ineligible members in the draft voters list. Such an objection, without specific and definite averments, was held to be bad in _**Vijayakumar v. Joint Registrar**_ **[1996 (1) KLT 285]** . The power of the Returning Officer dilated in the said decision is equally applicable to an Electoral Officer appointed under the amended provisions of Rule 35A of the Kerala Co-operative Societies Rules, 1969. Though it cannot be disputed that the Election Commission has wide supervisory powers in the matter of conducting elections, in the present case the Electoral Officer, the delegate of the Election Commission, had considered the objections with reference to the **- 5 -** W.P.(C).No.25280 of 2013-H details produced by the respondent-Society and had also removed a number of persons from the draft voters list, as is disclosed from Exhibit P9. 7. It was on a further complaint to the Election Commission that the Election Commission directed the Joint Registrar to enquire as to whether there were any ineligible members in the final voters list. It is trite that once the election process has started, even this Court would hesitate to interfere with the process and impede the conduct of elections on an allegation of inclusion of ineligible members. There are specific provisions in the Kerala Co-operative Societies Act, 1969 and the Rules framed thereunder for the removal of ineligible members and an objection made as a precursor to the election can only be treated as one made to impede the democratic process of an election. It is also trite that such complaints and objections after having been validly considered by the Electoral Officer, any remaining grievance would have to be agitated after the elections in a properly instituted Election Petition. In such circumstance, it is difficult to sustain the action of the Election Commission in having directed the Joint Registrar (General) to conduct an enquiry and directing cancellation of the elections. The final voters list definitely has been published after complying with the **- 6 -** W.P.(C).No.25280 of 2013-H provisions of the Act and the Rules. The election, hence, has to go through and, definitely, any complaints regarding the conduct of election or inclusion of any ineligible members ought to be left open to be decided in a validly instituted Election Petition. 8. In the above circumstances, it is deemed fit that the election which was cancelled as per Exhibit P12 be resumed from the stage at which it was stopped and the polling conducted. The cancellation of the elections being found to be bad, it can only be deemed that the polling was stopped. A Division Bench of this Court in **Madhavan Namboodiri v. Kammaran [1992 (2) KLT 567]** held so: “It is no doubt true that there is no provision in the Act or the Rules as to what should happen if an election could not be held on the original date due to any reason not contemplated under the Rules. But that does not mean that the Committee is powerless. It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. xx xx xx From what is stated above it has to be held that the Managing Committee has authority and jurisdiction to fix a new date for the election, if for any reason the election could not be conducted on the original date fixed, and that it is not necessary to repeat the whole process as contemplated under R.35. The election proceedings could be continued from the stage at which it was stopped ...” ( _sic_ ). W.P.(C).No.25280 of 2013-H **- 7 -** There shall be a direction to the Administrative Committee to take a resolution within two weeks from the date of receipt of a copy of this judgment, fixing a date for polling in accordance with the Act and the Rules and the same shall be forwarded to the Election Commission through the appropriate authority. The Election Commission shall immediately on receipt of the same, fix the date of polling and facilitate the election to be conducted in accordance with the Act and Rules, expeditiously. The writ petition is disposed of with the above directions. The parties are left to suffer their respective costs. vku/ Sd/K.Vinod Chandran Judge. ( true copy )