Manikkan T v. Registrar of Co-operative Societies and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 7759 OF 2023`** ## **`PETITIONER:`** ``` MANIKKAN T, AGED 61 YEARS, S/O THANKAN, RESIDING AT POOTHONI KALAM, VADAVANNUR, PALAKKAD – 678 504. BY ADVS. NIRMAL.S VEENA HARI RIA ELIZABETH JOSEPH IRENE ELZA SOJI K. REMIYA RAMACHANDRAN VARUN MURALEEDHARAN ``` ## **`RESPONDENTS:`** - `1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES, JAWAHAR SAHAKARANA BHAVAN, DPI JUNCTION, THYCAUD P.O, TRIVANDRUM – 695 014.` - `2 ELECTORAL OFFICER/ASSISTANT REGISTRAR (GENERAL) OF COOPERATIVE SOCIETIES, CHITTUR, PALAKKAD – 678 001.` - `3 STATE CO-OPERATIVE ELECTION COMMISSIONER, VIKAS BHAVAN, JANAHITHAM, NEAR LEGISLATIVE ASSEMBLY, THIRUVANANTHAPURAM – 695 033.` - `4 THE RETURNING OFFICER, VADAVANNUR SERVICE CO-OPERATIVE BANK LTD., VADAVANNUR P.O., PALAKKAD – 678 504.` - `5 VADAVANNUR SERVICE CO-OPERATIVE BANK LTD. REP BY ITS SECRETARY, NO.F.1217, VADAVANNUR P.O., PALAKKAD – 678 504. SRI. BIMAL K NATH (SR GP),` ``` SRI. C M NAZAR (SC FOR STATE ELE. COMMISSION) ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 7759 OF 2023 2 ## JUDGMENT The petitioner is a former Director of Vadavannur Service Cooperative Bank. He has approached this Court being aggrieved by the non consideration of his request to print the ballot papers for the proposed election to the Managing Committee of the 5[th] respondent Society by depicting a symbol or sign for each panel for easy identification of the candidates. The election was notified on 31.01.2023 and the election is to be held on 19.03.2023. It is the case of the petitioner that the majority of the members of the society are either illiterate and uneducated and of Tamil origin, making it difficult for them to identify the candidates unless, the candidates are allotted a particular symbol or sign for the purpose of easy identification. The petitioner addressed Ext.P9 representation to the President of the Society, which was replied to by Ext.P10 pointing out that in view of the stipulations in Rule 35 A(6)(n)(VIII) of the Kerala Co-operative Societies Rules, the request of the petitioner cannot be acceded to. The learned counsel appearing for the petitioner would submit that the request was also rejected by the Returning Officer appointed for conducting the election. WP(C) NO. 7759 OF 2023 3 2. The learned counsel for the petitioner submits that following the 97[th] amendment to the Constitution of India, whereby the right to form a Co-operative Society has been elevated to the status of a fundamental right [by amending Article 19(1)(c) of the Constitution] the Rules which are relied on to reject the request of the petitioner should be declared unconstitutional and against the right to form a Co-operative Society. It is submitted that a learned Single Judge of this Court in Akathethara SCB Ltd v. State of Kerala and Others [I.L.R 2015(3) Kerala 461] had held as follows: “10. Members of democratic institutions are elected by people of different strata. The rate of literacy in India is comparatively low and majority of populations are residing in villages. A good number of people are unable to read or write even their own names. It was to enable these persons to exercise their right of franchise, symbols are introduced in the elections.” It is pointed out that on a previous occasion, this Court had issued Ext.P2 interim order directing that the names of candidates should printed in different colour in respect of the elections to the 5[th] respondent Society. It is submitted that an interim order permitting the printing of ballot papers in different colour may not be possible in view of the fact that a Division Bench of this Court in W.A.No.1963 of 2018 had reversed the judgment of the learned Single Judge in Akathethara SCB Ltd v. State of Kerala and Others WP(C) NO. 7759 OF 2023 4 [I.L.R 2015(3) Kerala 461] . It is submitted that the Division Bench judgment of this Court is however, not authority for the proposition that a separate symbol cannot be allotted to candidates forming part of a panel. The learned counsel for the petitioner also placed reliance on the judgment of the Supreme Court in Akhand Pratap Singh Yadav v. Kunwar Surendra Pratap Singh and Others [(1996) 2 SCC 273] and in particular to paragraph 8 of that judgment to contend that any confusion in the minds of the electorate has to be avoided to ensure that a democratic process is not thwarted by the illiteracy or other inadequacy of a voter. He also submits that the Supreme Court had in the aforesaid judgment found that allotment of a symbol to a candidate is absolutely essential to ensure that rural uneducated voters can exercise their franchise without being confused in any manner. 3. The learned Senior Government Pleader appearing for the official respondents and the learned Standing Counsel appearing for the State Election Commission would vehemently oppose the grant of any relief to the petitioner. It is submitted that the question raised for consideration in the writ petition is squarely covered against the petitioner by the Division Bench judgment of this Court in W.A.No.1963 of 2018. It is submitted that the ballot WP(C) NO. 7759 OF 2023 5 paper contains serial numbers of the candidates and it is easy for any person to identify the candidates in question if they are informed about the serial number on the ballot paper. It is submitted that the judgment of the Supreme Court in Akhand Pratap Singh Yadav (supra) cannot be treated as authority for the proposition that no election can be conducted without allotting a symbol to the candidates. It is submitted that the number of candidates are 22 and the number of voters are also not so large and it would be easy for the candidates to require that they be identified by the serial number of the ballot paper and it is not necessary to have any symbol allotted to any candidate to conduct a proper election to the Managing Committee of the Society. It is also submitted that Rule 35A(6)(n)(IX) of the Kerala Co-operative Societies Rules also contemplate that if a contingency arises where the voter is not able to identify the candidates or exercise his franchise, the officials who are in charge of the election can permit the exercise of franchise through a companion. It is submitted that this issue was also considered by the Division Bench while deciding W.A.No.1963 of 2018. The learned Senior Government Pleader also placed relies on a recent judgment of the Supreme Court in the Bengal Secretariat Cooperative Land Mortgage Bank and Housing WP(C) NO. 7759 OF 2023 6 Society Ltd. v. Sri Aloke Kumar & Anr [judgment dated 13.10.2022 in Civil Appeal No.7261 of 2022] where in paragraph 53, the Supreme Court held as follows: “53. By now it is well established position that once a person becomes a member of the Co-operative Society, he loses his individuality with the Society and he has no independent rights except those given to him by the statute and bye-laws. The member has to speak through the Society or rather the Society alone can act and speaks for him qua the rights and duties of the Society as a body (see : Daman Singh v. State of Punjab, reported in (1985) 2 SCC 670 : AIR 1985 SC 973). This view has been followed in the subsequent decision of this Court in the case of State of U.P v. Chheoki Employees Co-operative Society Ltd., reported in (1997) 3 SCC 681 : AIR 1997 SC 1413. In this decision, this Court further observed that the member of a Society has no independent right qua the Society and it is the Society that is entitled to represent as the corporate aggregate. This Court also observed that the stream cannot rise higher than the source. Suffice it to observe that so long as the Resolutions passed by the General Body of the Appellant Society are in force and not overturned by a forum of competent jurisdiction, the said decisions would bind the Respondent No. 1. He cannot be permitted to take a stand alone position but is bound by the majority decision of the General Body. Notably, the Respondent No. 1 has not challenged the Resolutions passed by the General Body of the Appellant Society to redevelop the property and more so, to appoint the Hi-Rise as the Developer to give him all the redevelopment rights.” 4. Having heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for the official WP(C) NO. 7759 OF 2023 7 respondents and the learned Standing Counsel appearing for the State Election Commission, I am of the view that the petitioner has not made out any case for grant of relief in the present writ petition. I consider myself bound by the declaration of law as contained in the judgment of a Division Bench of this Court in W.A.No.1963 of 2018, where this Court held as follows: 3. We heard Mrs.K.R.Deepa, Senior Government Pleader for the appellants and Mr.M.P.Ashok Kumar, Advocate for the respondent society. 4. Rule 35A(6)(n)(viii) of the Rules is as under: “(viii). Every member who desires to exercise his right of vote, shall subject to the provisions of Clause (ix), be supplied with a uniform ballot paper containing the names of contesting candidates arranged in the alphabetical order, either printed, type written or cyclostyled according to convenience, on the ballot paper. The ballot paper shall be serially numbered and shall also bear the seal of the society and also the signature of the Returning Officer and further contain a column for the voter to inscribe a mark (x) against the names of persons to whom he wants to vote.” (emphasis supplied) Therefore the following are the essentials of a ballot paper: (a) The names of the contesting candidates arranged in an alphabetical order. (b) The names of the contesting candidates printed, type written or cyclostyled. (c) Uniform ballot paper serially numbered for supply WP(C) NO. 7759 OF 2023 8 to every member who desires to vote. (d) Ballot paper to bear the seal of the society and the signature of the Returning Officer. (e) Ballot paper to contain a column for the voter to inscribe his mark indicating vote. Any further ornamentation of the ballot paper by incorporation of a symbol or colour for the contesting candidate is not one contemplated either by the Act or the Rules and is wholly impermissible in law. 5. The word 'uniform' incorporated in Rule 35A(6)(n)(viii) of the Rules by S.R.O.1005/2010 dated 2.11.2010 mandates that all ballot papers shall be similar with regard to the projection of the names. The uniformity should be not only with respect to the ballot papers supplied to the members who desire to vote but also with respect to the names of contesting candidates therein. Giving different colour shades to the contesting candidates or to a particular panel of contesting candidates is an anathema to the scheme of the election process contemplated. This is particularly so since there is no authority either under the Act or the Rules to allot a particular colour to a candidate depending on the political party to whom he owes allegiance. Ext.P6 circular of the Registrar and Ext.P7 circular of the State Co-operative Election Commission only echo the prescriptions in Rule 35A(6)(n)(viii) of the Rules and are perfectly in order. Needless to say that the State Co-operative Election Commission has the power of superintendence for the conduct of election to a co-operative society under Section 28B of the Act. 6. We notice that a similar circular issued by the Registrar of Co-operative Societies was frowned upon in Mahalingam R. v. State Co-operative Election Commission and others [2010 (1) KLT 46]. But the same was prior to the insertion of the word 'uniform' in Rule 35A(6)(n)(viii) of the Rules whereunder the WP(C) NO. 7759 OF 2023 9 society could print the names of the candidates in a dissimilar manner. It was pointed out that the amendment to Rule 35A(6) (n)(viii) was necessitated owing to complaints received alleging that colour change was based on caste, religion and political party. The word 'uniform' means 'characterised by lack of variation' and it was inserted in Rule 35A(6) (n)(viii) of the Rules with the sole object of treating all the candidates alike in the ballot paper. 7. The learned single Judge has opined that a good number of voters are illiterates and that allotting a separate colour to a candidate owing allegiance to a political party would help the voter in his choice. We fail to see as to how the members of the society in question at Palakkad could be illiterates unable to read even Malayalam in order to decipher the name of the candidate. Moreover Rule 35A(6)(n)(ix) of the Rules takes care of the contingency by enabling a companion to exercise the right of franchise as instructed by the voter subject to statutory prescriptions. The same includes the Presiding Officer (the Polling Officer or the Returning Officer) obtaining a declaration from the companion in Form No.38 given in Appendix II of the Rules. Therefore the possibility of an illiterate voter indicating his choice for a wrong candidate due to the absence of colour shade in projecting his name in the ballot paper is quite illusory.” The question considered by the Supreme Court in Akhand Pratap Singh Yadav (supra) was precisely as to whether the failure to show the the name of a candidate as “Akhand Pratap Singh Yadav” and showing his name as “Akhand Pratap Singh” had materially affected the voting and result of the election, to the prejudice and detriment of the petitioner. While considering that WP(C) NO. 7759 OF 2023 10 question and in rejecting that contention, the Supreme Court observed that normally rural uneducated voters go by the symbol allotted to the candidates and not by the name of the candidates. I cannot read the finding of the Supreme Court to be a declaration that no election can be held without symbols being allotted to the candidates. The argument of the learned counsel for the petitioner with reference to the 97[th] amendment to the Constitution of India, where Article 19(1)(c) was amended to incorporate a clause which provided that the right to form a co-operative society is also a fundamental right to mean that the conduct of the election without allotting symbols to candidates on the basis of the apprehension expressed by the petitioner is to be seen as a case of violation of the fundamental right under Article 19(1)(c). The right to vote at an election and the conditions for enabling a candidate to exercise the vote or to stand for election has not been elevated to the status of a fundamental right and it continues to be a statutory right in so far as it relates to election to a co-operative society and a constitutional right (as opposed to a fundamental right) in so far as it relates to election to the parliament and state legislature. I am also of the view that the learned Senior Government Pleader is right in placing reliance on the judgment of the Supreme Court in 11 WP(C) NO. 7759 OF 2023 Bengal Secretariat Cooperative Land Mortgage Bank and Housing Society Ltd. (supra) and that judgment is authority for the proposition that the member is bound by the statute and the byelaws. For all these reasons, the writ petition fails and it is accordingly, dismissed. Sd/GOPINATH P. JUDGE DK WP(C) NO. 7759 OF 2023 12 ## **`APPENDIX OF WP(C) 7759/2023`** - `PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTIFICATION NO.01/27/2023 E(1) S.C.E.C DT.31-01-2023` - `Exhibit P2 TRUE COPY OF THE INTERIM ORDER 12-04-2018 IN WPC.13178/2018` - `Exhibit P3 TRUE COPY OF SRO 1005/2010 DATED 02-112010` - `Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 2702-2023 MADE BY THE PETITIONER TO THE 4TH RESPONDENT` - `Exhibit P5 TRUE COPY OF THE REJECTION LETTER ISSUED BY THE 2ND RESPONDENT DATED 03-03-2023` - `Exhibit P6 TRUE COPY OF THE BALLET PAPER FOR THE ELECTION CONDUCTED IN THE PREVIOUS LOCATION ON 06-05-2018` - `Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED 0203-2023 MADE BY THE PETITIONER TO THE 4TH RESPONDENT` - `Exhibit P8 TRUE COPY OF THE REJECTION LETTER ISSUED BY THE 2ND RESPONDENT DATED 03-03-2023` - `Exhibit P9 TRUE COPY OF THE LETTER TO THE PRESIDENT OF THE 5TH RESPONDENT BANK DATED 01-032023` - `Exhibit P10 TRUE COPY OF THE LETTER FROM THE SECRETARY OF THE RESPONDENT BANK DATED 02-03-2023`