Mugu Service Co-operative Bank Ltd. v. State Co-operative Election Commission, Thiruvananthapuram, and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 1ST DAY OF DECEMBER 2016/10TH AGRAHAYANA, 1938** **WP(C).No. 30695 of 2016 (J) ----------------------------** **PETITIONER(S):** **-------------** **1. MUGU SERVICE CO-OPERATIVE BANK LTD.NO.C.33(FF), P.O.MUGU, VIA, KUMBALA, KASARAGOD DISTRICT, REPRESENTED BY ITS SECRETARY.** **2. THE BOARD OF DIRECTORS OF THE MUGU SERVICE CO-OPERATIVE BANK LTD. NO.C33 (FF),** **P.O.MUGU, KASARAGOD DISTRICT, REPRESENTED BY ITS PRESIDENT.** **BY ADV. SRI.D.SOMASUNDARAM** **RESPONDENT(S):** - **--------------** **1. STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM - 695 001.** **2. ASSISTANT REGISTRAR (GENERAL), KASARAGOD, THE ELECTORAL OFFICER, THE MUGU SERVICE CO-OPERATIVE BANK LTD. NO.C33(FF), P.O.MUGU, KASARAGOD DISTRICT - 671 321.** **3. THE RETURNING OFFICER, UNIT INSPECTOR, MANJESWARAM, OFFICE OF THE ASSISTANT REGISTRAR GENERAL, KASARAGOD - 671 001.** **4. G.JYOTHICHUDAN, THE STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM - 695 001.** **5. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KASARAGOD - 671 001.** *** ADDITIONAL R6 IMPLEADED** **6. SANTHOSH KUMAR K.A.,** - **MEMBER NO.1563, MUGU SERVICE CO-OPERATIVE BANK LTD., P.O. MUGU,KUMBALA, RESIDING AT NS.NILAYAM, ARIYAPPADY POST, KASARAGOD DISTRICT.** - **IS IMPLEADED AS PER ORDER DTD.3.10.2016 IN IA.15229/2016** **R1-R3 & R5 BY SPECIAL GOVERNMENT PLEADER SRI.K.S.MOHAMED HASHIM R6 BY ADV. SRI.P.C.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-11-2016 THE COURT ON 01-12-2016, DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 30695 of 2016 (J) ----------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-----------------------**|| |**EXT.P1**|**TRUE COY OF THE ORDER NO.E(2)/2407/2016/SCEC**| ||**DATED 15.7.2016 ISSUED BY THE 1ST RESPONDENT**| |**EXT.P2**|**TRUE COPY OF THE VOTERS LIST PUBLISHED BY THE**| ||**ELECTORAL OFFICER DATED 26.8.2016**| |**EXT.P3**|**TRUE COPY OF THE INTIMATION NO.1290/16/MI**| ||**DATED 2.9.2016 AND THE LIST OF PERSONS SUBMITTED THE**| ||**NOMINATION**| |**EXT.P4**|<br>**TRUE COPY OF THE FINAL LIST OF CANDIDATES ISSUED BY**| ||**THE RETURNING OFFICER, MUGU SERVICE CO-OPERATIVE BANK**| |**EXT.P5**|**TRUE COPY OF THE COMMUNICATION NO.1290/2016/M1**| ||**DATED 1.9.2016 SENT BY THE RETURNING OFFICER OT THE**| ||**STATION HOUSE OFFICER**| |**EXT.P6**|**TRUE COPY OF THE COMMUNICATION NO.E(2)/2407/2016 SCEC**| ||**DATED 31.8.2016 SENT BY THE 1ST RESPONDENT TO THE 2ND**| ||**RESPONDENT**| |**EXT.P7**|**TRUE COPY OF THE ORDER N O.E(2)/2407/2016/SCEC**| ||**DATED 9.9.2016 ISSUED BY THE 1ST RESPONDENT**| |**RESPONDENT(S)' ANNEXURES:**|| |**-------------------------**|| |**ANNEX**|**R1(a): TRUE COPY OF THE PROPOSAL OF THE ASSISTANT REGISTRAR**| ||**(GENERAL) DTD.7.7.2016.**| |**ANNEX**|**R1(b): TRUE COPY OF THE COMPLAINTS RECEIVED FROM**| ||**SRI.NARAYANA NAMBIAR.**| |**ANNEX**|**R1(c): TRUE COPY OF THE COMPLAINTS RECEIVED FROM**| ||**SRI.K.A.SANTHOSH.**| |**ANNEX**|**R1(d): TRUE COPY OF THE LETTER ISSUED TO ASSISTANT**| ||**REGISTRAR (GENERAL) ON 29.8.2016.**| |**ANNEX**|**R1(e): TRUE COPY OF THE REPLY RECEIVED FROM THE ASSISTANT**| ||**REGISTRAR ON 30.8.2016.**| |**ANNEX**|**R1(f): TRUE COPY OF THE REPORT FROM THE INSPECTION TEAM**| ||**DTD.7.9.2016.**| ||**//TRUE COPY//**| ||**P.S.TO JUDGE**| |**msv/**|| ## **P.B. SURESH KUMAR, J.** ## **--------------------------------------------------** ## **W.P.(C) No.30695 of 2016 -------------------------------------------------Dated this the 1[st] day of December, 2016** ## **JUDGMENT** Ext.P7 decision of the State Co-operative Election Commission (the Commission) is under challenge in this writ petition. 2. Mugu Service Co-operative Bank Ltd., a Cooperative Society registered under the Kerala Co-operative Societies Act (the Act) is the first petitioner and the Board of Directors of the first petitioner (the Society) is the second petitioner. The last Managing Committee of the Society had to demit office on 24/09/2016 and consequently, at their instance, the Election Commission notified election to form a new Managing Committee. Ext.P1 is the notification WPC No.30695 of 2016 2 issued by the Election Commission in this connection. As per Ext.P1 notification, 16/08/2016 was the date prescribed for publication of the preliminary voters list, 26/08/2016 was the date prescribed for publication of the final voters list after considering the objections to the preliminary voters list, 02/09/2016 was the date prescribed for submission of nomination papers, 05/09/2016 was the date prescribed for withdrawal of the nomination papers and 18/09/2016 was the date prescribed for the election. Pursuant to Ext.P1 notification, preliminary voters list and final voters list were published by the Electoral Officer appointed by the Election Commission. Thereupon, the Returning Officer appointed by the Election Commission received the nominations submitted by the candidates and after scrutiny finalized and published the final list of candidates who have submitted nominations in accordance with the notification. Ext.P4 is the final list of candidates published by the Returning WPC No.30695 of 2016 3 Officer. At that point of time, the Election Commission issued Ext.P7 communication by which the election as per the notification was adjourned _sine die._ In Ext.P7 communication, it is stated that 2242 members of the Society were included in the preliminary voters list published by the Electoral Officer; that there were only 140 members in the final voters list published by the Electoral Officer; that larger number of persons have been removed from the preliminary voters list without affording them an opportunity of hearing and that therefore the election has to be adjourned to afford them an opportunity of hearing. It is also stated in Ext.P7 that the aforesaid facts were brought to the notice of the Election Commission by two members of the Society, viz K.A.Santhosh Kumar and Narayanan Nambiar. According to the petitioners, Ext.P7 order issued by the Election Commission is without jurisdiction and hence this writ petition. WPC No.30695 of 2016 4 3. Since the election was adjourned _sine die_ , this Court passed an interim order on 22/09/2016 directing the fifth respondent to appoint an Administrative Committee consisting of three among the members of the outgoing Managing Committee of the Society for its administration until a new Managing Committee is elected to power. The Administrative Committee appointed pursuant to the said interim order is now in office in the Society. 4. A statement has been filed by the Election Commission in this matter supporting Ext.P7 communication. 5. K.A.Santhosh Kumar, at whose instance the Election Commission issued Ext.P7 order, has got himself impleaded in the writ petition as additional sixth respondent. 6. Heard the learned counsel for the petitioner, the learned Government Pleader as also the learned counsel WPC No.30695 of 2016 5 for the additional sixth respondent. 7. A close reading of Ext.P7 communication of the Election Commission indicates beyond doubt that the election has been adjourned as large number of persons who are included in the preliminary voters list have been removed without affording them an opportunity of hearing. The said reason has been reiterated by the Election Commission in the statement filed in this matter also. The said reason, according to me, is unsustainable for more than one reason. The Election Commission has stated in Ext.P7 communication itself that the members of the Society who are included in the final voters list published by the Electoral Officer are the only members of the Society who are eligible to cast their vote in the election in accordance with the provisions of the Act and the Rules made thereunder. In other words, even according to the Election Commission, the persons who are excluded from the preliminary voters list WPC No.30695 of 2016 6 are members who are ineligible to cast their vote in the election. There was therefore absolutely no reason to adjourn the election for having excluded ineligible persons from the preliminary voters list by the Electoral Officer. Further, a person who is found ineligible to cast vote in the election by the Electoral Officer does not cease to be a member of the Society. As such, the members who are excluded from the voters list have no right to be heard. The remedy, if any, of such persons is to challenge the election in a properly constituted election petition. It appears that those persons who are removed from the preliminary voters list have no grievance concerning the conduct of the Electoral Officer. The additional sixth respondent at whose instance Ext.P7 communication has been issued by the Election Commission is a person whose name is included in the final voters list. It is so stated by the petitioners in the counter affidavit filed by them to the impleading petition WPC No.30695 of 2016 7 filed by the additional sixth respondent and the said averment in the said counter affidavit stands uncontroverted. Further, in **A.K.Kunjimuhamed v. Returning Officer** [2014 (1) KLT 201], this Court held that preparation of preliminary and final voters list being the function of the Chief Executive of the Society and the Electoral Officer respectively, the Election Commission cannot usurp such powers in the purported exercise of his supervisory powers. Paragraph 16 of the decision of this Court referred to above reads thus: 16. The duties enjoined upon by Section 35 on the Returning Officer appointed by the Registrar is bifurcated by Section 35A and cast upon the Electoral Officer and Returning Officer appointed by the Election Commission. The preparation of voters list is not a duty cast on either the Returning Officer or the Electoral Officer; the latter of whom has the duty to publish it, after considering the objections. The duty is on the Chief Executive of the concerned Society to prepare, update and submit the list to the Electoral Officer; after due approval from the Committee. The Election Commission cannot usurp such powers and in the context of absence of such powers he cannot confer it on an officer of the department by delegation or in purported exercise of his supervisory powers. That is what has WPC No.30695 of 2016 8 been done in Ext.P6. In the present case, it is also pertinent that the Electoral Officer appointed by the Election Commission has published the final voters list after considering the objections. Above all, it is beyond dispute that the preparation of the electoral roll is part of the election process. It is trite that once the election process is commenced, the same shall not be interfered with even by Courts, especially at the instance of persons who have alternative statutory remedies in the form of election petitions for redressal of their grievances. (see **Mangilal** v **State of Rajasthan and Another** [(2001) 8 SCC 519] and **Shaji K. Joseph** v **Vishwanath** [(2016) 4 SCC 429]. Ext.P7 decision of the Election Commission is, therefore, illegal and without jurisdiction. 8. In the result, the writ petition is allowed, Ext.P7 order of the Election Commission is set aside and the Election Commission is directed to re-notify the election from the stage at which the election was stopped as per the WPC No.30695 of 2016 9 impugned communication. It is made clear that until a new Managing committee is formed, the Administrative Committee appointed pursuant to the interim order passed by this Court will continue. It is also made clear that this judgment will not preclude the members of the Society from challenging the election by availing the statutory remedies. Sd/- **P.B. SURESH KUMAR JUDGE** _rsr_ _(true copy)_