P.A. Devasia v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **FRIDAY, THE 27TH DAY OF JULY 2012/5TH SRAVANA 1934** **WP(C).No. 15024 of 2012 (C) ---------------------------** **PETITIONER(S): -------------** **P.A.DEVASIA, AGED 45 YEARS PANACKKAL, KUDAKKACHIRA P.O, PALA KOTTYAM PIN 686 635.** **BY ADVS.SRI.S.PRASANTH** **SRI.JAGADEESH LAKSHMAN SRI.GOPAKUMAR R.THALIYAL** **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO MINISTRY FOR CO-OPERATION GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM 695 001.** **2. THE JOINT REGISTRAR** **O/O.THE JOINT REGISTRAR, CO-OPERATIVE DEPARTMENT KOTTAYAM 686 001.** **3. THE ASSISTANT REGISTRAR (GENERAL) O/O.THE ASSISTANT REGISTRAR (GENERAL) CIVIL STATION BUILDING, MEENACHIL, PALA.686.** **4. KUDAKKACHIRA SERVICE CO-OPERATIVE BANK LTD NO.1792 REPRESENTED BY ITS SECRETARY, KDAKKACHIRA P.O KOTTAYAM PIN 686 635.** **Addl.5. THE ADDITIOINAL REGISTRAR/SECRETARY, STATE CO-OPERATIVE ELECTION COMMISSION, CO-BANK TOWERS, VIKAS BHAVAN (P.O.), THIRUVANANTHAPURAM : 695 033.** **Addl.6. JAMES MATHEW, AGED 50 YEARS, S/O.V.J.MATHEW, REWSIDING AT VALLAMBAYIL HOUSE, KUDAKKACHIRA, KOTTAYAM DISTRICT.** - **( ADDL.R5 IMPLEADED VIDE ORDER IN IA.NO.9764/12 DTD.26.7.12** - **& ADDL.R6 IMPLEADED VIDE ORDER DTD.26.7.2012 IN IA.NO. 10295/2012).** **BY ADV. SRI.SUNIL CYRIAC BY ADV. GOVERNMENT PLEADER BY ADV. SRI.JOICE GEORGE BY SPL.GOVERNMENT PLEADER SRI.D.SOMASUNDARAM.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 15024 of 2012 (C) ---------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:-** **EXHIBIT P1. THE RELEVANT PORTION OF THE BYE LAW OF THE FOURTH RESPONDENT DATED NIL.** **EXHIBIT P2. THE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT DATED 14.12.2009.** **EXHIBIT P3. TRUE COPY OF THE NOTICE FOR HEARING FROM THE THIRD RESPONDENT DATED 14.06.2012.** - **EXHIBIT P4. TRUE COPY OF THE STATEMENT OF THE PETITIONER DATED 20.06.2012.** **EXHIBIT P5. TRUE COPY OF SOME OF THE RELEVANT PAGE OF VOTERS LIST FOR THE LAST ELECTION, DATED NIL.** **EXHIBIT P6. TRUE COPY OF ELECTION NOTIFICATION PUBLISHED IN DEEPIKA DAILY DTD.25.6.2012.** **EXHIBIT P7. COPY OF THE REPRESENTATION DTD.28.6.12.** **EXHIBIT P8. COPY OF THE REPLY DTD.2.7.2012.** **EXHIBIT P9. COPY OF THE OBJECTION DTD.6.7.2012.** **EXHIBIT P10. COPY OF THE STATEMENT DTD.6.7.2012.** **EXHIBIT P11. COPY OF THE COMMUNICATION DTD.7.7.2012.** **EXHIBIT P12. COPY OF THE SOME OF THE RELEVANT PAGES OF THE ABOVE SAID VOTERS' LIST.** **RESPONDENTS' EXHIBITS:-** **( TRUE COPY )** **PA TO JUDGE** _**Kvs/-**_ ## **K.SURENDRA MOHAN, J.** = = = = = = = = = = = = WP(C).No.15024 of 2012. = = = = = = = = = = = = Dated this the 27[th] July, 2012. ## **J U D G M E N T** The petitioner, a member of the Kudakkachira Service Co-operative Bank Ltd., a Co-operative Society registered under the Kerala Co-operative Societies Act, 1969, has filed this writ petition complaining of discrepancies in an election that is scheduled to be conducted to the Managing Committee of the Society as per Ext.P6 notification. According to the petitioner, as many as 683 ineligible members have been included in the draft voters list on the basis of which the election is proposed to be conducted. It is submitted that the petitioner had submitted a complaint, Ext.P2 as early as on 14.12.2009 to the second respondent complaining of admission of ineligible members to the membership of the society and seeking appropriate orders cancelling their membership. As per Ext.P3 dated **WP(C).No.15024/2012.** 2 14.6.2012, the petitioner was directed to appear for a hearing that was scheduled to be conducted on 20.6.2012. Since the notice was served on 19.6.2012, the petitioner submitted Ext.P4 statement requesting for time to produce necessary evidence substantiating his contention that ineligible members had been admitted to the membership of the society. 2. It was in the above circumstances that Ext.P6 notification was published on 25.6.2012. In accordance with Ext.P6 schedule of election, the preliminary voters list was published on 28.6.2012 inviting objections to the same. Objections were to be submitted before 5.00 pm. on 6.7.2012 and the final voters list was to be published on 7.7.2012. According to the petitioner, he had submitted his objections to the Electoral Officer within time. However, without considering his objections the final voters list has been published on 7.7.2012. Since the election is proposed **WP(C).No.15024/2012.** 3 to be held on 29.7.2012, the petitioner has also moved an Interlocutory Application for the issue of a direction to collect the disputed votes in a separate ballot box, to be retained separately so as to enable the objections regarding their ineligibility to be considered by the second respondent. 3. The contentions of the petitioner are opposed by the Spl.Govt.Pleader Sri.D.Somasundaram. He points out that though the petitioner has raised objections regarding ineligibility of as many as 683 persons, the objections raised are not supported by any evidence. Even the identity of the said persons are not clearly mentioned. It is alleged that the petitioner's objections were accompanied by Ext.P12, a voters list prepared for a previous election, wherein the petitioner has made certain marks with his pen. Such indications are not sufficient to justify a conclusion that the persons mentioned are ineligible to hold the membership of **WP(C).No.15024/2012.** 4 the Society or to be disqualified from casting their votes. Therefore, the learned Spl.Govt.Pleader submits that a direction as sought for, to collect the votes of the ineligible persons in a separate ballot box would only create confusion even with regard to the identity of the persons in the voters list whose votes are to be so collected. The petitioner has not substantiated his objections with any acceptable evidence and that is the reason for not allowing his objections, it is submitted. 4. Advt.Sunil Cyriac who appears for the fourth respondent Bank supports the contentions of the learned Spl.Govt.Pleader and submits that in the absence of acceptable evidence to show that the persons mentioned as ineligible by the petitioner are not qualified to be admitted to the membership of the Society, no action can be taken. Since the identities of persons against whom the objections are raised are not clearly established, it is submitted that no **WP(C).No.15024/2012.** 5 direction as sought for may be issued. Advt.Joice George who appears for the additional sixth respondent also opposes the grant of any order directing the Returning Officer to keep the disputed votes separately. According to the counsel, in the absence of specific objections with respect to named members, the objections cannot be sustained. 5. I have heard the respective counsel for the contesting parties. I have also considered the rival contentions anxiously. 6. It is true that the petitioner has raised objections against the admission of 683 persons to the membership of the Society. It is also true that the petitioner has submitted Ext.P2 as early as on 14.12.2009 before the second respondent setting forth his complaints. However, the relief sought for in Ext.P2 is for a cancellation of the membership of the persons against whom such objections were raised. **WP(C).No.15024/2012.** 6 Cancellation of membership of persons can be done only by complying with the procedure stipulated by sub Rules 3 and 4 of Rule 16(3) of the Kerala Co-operative Societies Rules, 1969. It is also worth noticing that even when the petitioner was directed to appear for a hearing on 20.6.2012, what the petitioner has done was to seek more time to produce necessary proof in support of his contentions. Therefore, despite the fact that Ext.P2 has been pending from 14.12.2009 onwards, the petitioner has still not been able to produce proof in support of his objections. Since Ext.P2 has been submitted for cancellation of the memberships of the persons who are alleged to be ineligible, the proceedings to be initiated on Ext.P2 is totally different from the consideration of objections to a draft voters list. It is true that though Ext.P2 is pending from 2009 onwards, no orders have been passed thereon till date. Until the members against whom **WP(C).No.15024/2012.** 7 objections are raised by the petitioner are removed in compliance with the relevant statutory provisions, they continue to be members of the Society and are entitled to exercise their voting rights. Therefore, the question that arises for consideration is whether the objections of the petitioner had been considered before finalising the voters list on 7.7.2012. 7. The petitioner has submitted Ext.P9 objections on 6.7.2012 and the Electoral Officer has heard the petitioner on the said date. The Spl.Govt.Pleader has made available the files of the Returning Officer before me. A statement given by the petitioner on 6.7.2012 forms part of the files produced before me. The statement of the petitioner shows that he has expressed his inability to produce any evidence in support of the objections raised by him. What the petitioner has therefore done is to seek further time for production of such evidence. In the absence of any 8 ## **WP(C).No.15024/2012.** evidence to show that any of the persons whose names have been shown in the voters list are ineligible, the Electoral Officer has rightly rejected the objections and finalised the voters list. 8. The learned Spl.Govt.Pleader placed reliance on the decision of this Court reported in **Vijayakumar v. Joint Registrar** (1996(1) KLT 285) where a Division Bench of this Court has held that the objections raised against the eligibility of a person to be included in the voters list should be definite and specific. The Returning Officer is not expected to search out evidence to support the objections put forth by the objector. Therefore, I do not find any infirmity with the procedure adopted by the Returning Officer in finalising the voters list on 7.7.2012. 9. As stated above, the election is scheduled to be conducted on 29.7.2012. It is well settled that this Court would be loathe to disrupt the schedule of election or to **WP(C).No.15024/2012.** 9 interfere with the electoral process, once the same has been set in motion. No compelling circumstances are available to justify any such interference, in the present case. In the absence of definite details regarding the identity of ineligible voters and evidence regarding their disqualification, I do not find any grounds to issue a direction that any of the votes polled should be collected or retained separately, as sought for by the petitioner. For the above reasons, I do not find any grounds to grant any of the reliefs sought for in this writ petition. The same is therefore, dismissed. **K.SURENDRA MOHAN,** (Judge) **Kvs/-**