P. Pankajakshan, President, Kuthanur Service Co-operative Bank Ltd. v. Registrar of Co-operative Societies, Trivandrum; Electoral Officer/Asst. Registrar (General) of Co-operative Societies, Alathur; State Co-operative Election Commissioner, Trivandrum; Returning Officer, Kuthanur Service Co-operative Bank Ltd.; Kuthanur Service Co-operative Bank Ltd., represented by its Secretary

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY,THE 05TH DAY OF SEPTEMBER 2018 / 14TH BHADRA, 1940** ## **WP(C).No. 28373 of 2018** ## **PETITIONER/S:** **P.PANKAJAKSHAN AGED 66 YEARS S/O.PATTU, PRESIDENT, KUTHANUR SERVICE CO-OPERATIVE BANK, RESIDING AT THOTTINGAL HOUSE, KUTHANUR, PALAKKAD – 678 721.** **BY ADV.SRI.NIRMAL. S ADV.SMT.VEENA HARI** ## **RESPONDENT/S:** - **1 THE REGISTRAR OF CO-OPERATIVE SOCIETIES TRIVANDRUM – 695 001** - **2 ELECTORAL OFFICER/ASST.REGISTRAR (GENERAL) OF COOPERATIVE SOCIETIES, ALATHUR, PALAKKAD – 678 001.** - **3 STATE CO-OPERATIVE ELECTION COMMISSIONER TRIVADRUM – 695 001.** - **4 THE RETURNING OFFICER, KUTHANUR SERVICE CO-OPERATIVE BANK LTD., KUTHANUR P.O, PALAKKAD – 678 721.** - **5 KUTHANUR SERVICE CO-OPERATIVE BANK LTD., REP.BY ITS SECRETARY, NO.F.1563, KUTHANUR P.O., PALAKKAD – 678 721.** ## **OTHER PRESENT: SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 28373 of 2018** **2** ## **JUDGMENT** **The petitioner, who is the President of Kuthanur Service Co-operative Bank Ltd, the 5[th] respondent herein, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P5 order dated 20.08.2018 issued by the 2[nd] respondent Electoral Officer and seeking a writ of mandamus commanding respondents 1 to 5 to print the names of contesting candidates in the ballot papers in different colored inks in the election to the Managing Committee of the 5[th] respondent Cooperative Bank scheduled to be held on 09.09.2018, in terms of Ext.P1 election notification dated 29.06.2018 issued by the 3[rd] respondent State Cooperative Election Commissioner.** **2. On 21.08.2018, when this writ petition came up for admission, the learned Senior Government Pleader took notice on admission for respondents 1 to 4. This Court issued urgent notice on admission** **WP(C).No. 28373 of 2018** **3** **by special messenger to the 5[th] respondent returnable by 30.08.2018. The learned Senior Government Pleader was also directed to get instruction.** **3. On 31.08.2018, when this writ petition came up for consideration, this Court recorded the undertaking given by the learned Government Pleader that even if an interim order is passed on 04.09.2018, the respondents will be able to print the ballot papers in different colors for the election to be held on 09.09.2018.** **4. A counter affidavit has been filed on behalf of the 4[th] respondent opposing the reliefs sought for in this writ petition. Along with the said counter affidavit, a copy of the request made by petitioner and others before the 4[th] respondent Returning Officer requesting to print their names in the ballot paper in green color ink is placed on record as Ext.R4(a).** **5. By Ext.P5 order, the 4[th] respondent rejected the request made by the petitioner and others in** **WP(C).No. 28373 of 2018** **4** **Ext.R4(a), placing reliance on Ext.R4(b) circular dated 17.05.2014 issued by the State Co-operative Election Commission.** **6. Heard the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 4 and also the learned counsel appearing for the 5[th] respondent Cooperative Bank.** **7. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P5 order dated 20.08.2018 issued by the 4[th] respondent Returning Officer. A reading of the aforesaid order would show that the request made by the petitioner and others stands rejected relying on Ext.R4(b) circular dated 17.05.2014.** **8. In** _**Akathethara SCB Ltd. v. State of Kerala and others [ILR 2015 (3) Kerala 461]**_ **, this Court held that the word 'uniform' incorporated in Rule 35A(6)(n)(viii) of the Kerala Co-operative Societies Rules, 1969 is undemocratic and** **WP(C).No. 28373 of 2018** **5** **unconstitutional. By the said judgment, this Court set aside Ext.P6 circular No.26/2011 dated 24.02.2011 and Ext.P7 circular No.2/2011 dated 02.06.2011. It is also ordered that the respondent therein shall allow the petitioner and other cooperative societies to print the name of the candidates in the ballot paper in different inks for the purpose of proper identification. Paragraph 11 and the operative portion of the said judgment read thus:** _**“11. In a co-operative society like the petitioner, in elections, instead of symbols, colours were being used while printing the name of the candidates in the ballot paper to identify the candidates. This practice was followed till the amendment of the aforesaid rule. The incorporation of the word 'uniform' in the rule and Exts.P6 and P7 circular and orders issued in the co-operative department would defeat the basic concept of democracy in elections to the co-operative societies. On account of this, a good number of members may not be able to choose the candidates independently. The basic principles involved in allotting election symbols has to be followed in printing the ballot papers for elections**_ **WP(C).No. 28373 of 2018** **6** _**conducted in the co-operative societies also. If no symbols are allotted, there should be a method by which a voter must be able to identify the candidates of his choice. Allotting a separate colour to a candidate belonging to a particular political party or coalition of parties would help the voter to identify the candidates while exercising their right of franchise. The amendment made in Rule 35A(n)(viii) regarding uniform ballot paper denies equal opportunity to all members of the co-operative societies to take part in the democratic process of election.**_ _**In the result, the writ petition is allowed. It is hereby made clear that the incorporation of the word 'uniform' under Rule 35(n)(viii) of Co-operative Societies Rules is undemocratic and unconstitutional. Therefore, Exts.P6 and P7 circulars are hereby quashed. The respondents shall allow the petitioner and other co-operative societies to print the name of the candidates in the ballot paper in different inks for the purpose of proper identification.”**_ **9. Having considered the submissions made by the learned counsel for the petitioner, the learned Senior Government Pleader appearing for respondents 1 to 4 and also the learned counsel for the 5[th] respondent, this Court finds no reason to sustain** **WP(C).No. 28373 of 2018** **7** **Ext.P5 order dated 20.08.2018 of the 4[th] respondent Returning Officer, in view of the law laid down by this Court in the judgment referred to supra.** **Accordingly, this writ petition is disposed of setting aside Ext.P5 order dated 20.08.2018 and directing the 4[th] respondent to reconsider Ext.R4(a) application made by the petitioner and others and take an appropriate decision, taking note of the law laid down by this Court in** _**Akathethara SCB Ltd.'s case (supra),**_ **with notice to the petitioner and others, who have submitted nominations to contest the election to the Managing Committee of the 5[th] respondent Society, which is scheduled to be held on 09.09.2018. A decision in this regard shall be taken on or before 06.09.2018.** ## **Sd/-** ## **ANIL K.NARENDRAN** ## **Judge** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO.E.** **WP(C).No. 28373 of 2018** **8** **(2)/4447/2018/SCEC DT.29/06/2018** **EXHIBIT P2 TRUE COPY OF THE ORDER NO.E.(2)/4447/2018/SCEC DT.29/06/2018 ISSUED BY THE 3RD RESPONDENT EXHIBIT P3 TRUE COPY OF THE CIRCULAR NO.2/2011 DATED 02.06.2011 ISSUED BY THE 3RD RESPONDENT EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC.16488/2012 DATED 22.05.2015** **EXHIBIT P5 TRUE COPY OF THE REJECTION ORDER DATED 20/08/2018 EXHIBIT P6 TRUE COPY OF THE ORDER IN WPC.13178/2018** **RESPONDENTS' EXHIBITS :** **EXHIBIT R4(a) TRUE COPY OF THE APPLICATION DATED 20.08.2018** **EXHIBIT R4(b) TRUE COPY OF THE CIRCULAR NO.E(2)/23/2014/SCEC/2/2008 DATED 17.05.2014.** ## **/TRUE COPY/** **AV/5/9** **P.A TO JUDGE**