Pradeep v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, 1945** **WP(C) NO. 39252 OF 2023** ## **PETITIONER:** **PRADEEP AGED 39 YEARS PRIYA BHAVAN, POTTADATHU PURAYIDOM, MOOTHAKARA, KOLLAM (ORIGINAL MEMBERSHIP NO. 387), PIN – 691013** ## **BY ADV PRIYA SHANAVAS** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FISHERIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE DIRECTOR OF FISHERIES GOVERNMENT OF KERALA (REGISTRAR OF FISHERIES CO-OPERATIVE SOCIETY), THIRUVANANTHAPURAM, PIN - 695001** - **3 THE JOINT DIRECTOR OF FISHERIES (REGISTRAR OF FISHERIES CO-OPERATIVE SOCIETY) SOUTH ZONE, KAMALESWARAM, THIRUVANANTHAPURAM, PIN - 695002** - **4 THE JOINT REGISTRAR OF FISHERIES (REGISTRAR OF FISHERIES CO-OPERATIVE SOCIETY) SOUTH ZONE, KAMALESWARAM, THIRUVANANTHAPURAM, PIN - 695002** - **5 THE STATE CO-OPERATIVE CHIEF ELECTION COMMISSIONER THIRUVANANTHAPURAM, PIN - 695001** - **6 JONAKAPPURAM- MOOTHAKKARA FISHERMAN DEVELOPMENT WELFARE CO-OPERATIVE SOCIETY NO. FQ-98 MOOTHAKKARA, VADDY P.O., KOLLAM, REPRESENTED BY ITS SECRETARY, PIN - 691013** W.P.(C) Nos.39252 & 40636 of 2023 : 2 : - **7 ADMINISTRATOR JONAKAPPURAM- MOOTHAKKARA FISHERMAN DEVELOPMENT WELFARE CO-OPERATIVE SOCIETY NO. FQ-98, FISHERIES DEVELOPMENT OFFICER, HEAD QUARTERS, THEVALLY, KOLLAM, PIN - 691009** - **8 THE ELECTORAL OFFICER JONAKAPPURAM-MOOTHAKKARA FISHERMAN DEVELOPMENT WELFARE CO-OPERATIVE SOCIETY NO. FQ-98, MOOTHAKKARA, VADDYP.O., KOLLAM (ASSISTANT REGISTRAR OF FISHERIES, COLLECTORATE, CUTCHERY P.O., KOLLAM, PIN - 691013** - **9 THE RETURNING OFFICER JONAKAPPURAM-MOOTHAKKARA FISHERMAN DEVELOPMENT WELFARE CO-OPERATIVE SOCIETY NO. FQ-98, MOOTHAKKARA, VADDYP.O., KOLLAM (THE FISHERIES DEVELOPMENT OFFICER, GRADE-I, COLLECTORATE, CUTCHERY P.O., KOLLAM, PIN – 691013** **BY ADVS. S.SREEKUMAR (KOLLAM) K.VIJAYAN(K/000868/2015) SRI.C.M.NAZAR, SC SRI.DHEERAJ A.S., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.12.2023, ALONG WITH WP(C).40636/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.39252 & 40636 of 2023 : 3 : # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, 1945** ## **WP(C) NO. 40636 OF 2023** ## **PETITIONER:** **PRADEEP AGED 39 YEARS** **PRIYA BHAVAN, POTTADATHU PURAYIDOM, MOOTHAKARA, KOLLAM** **( MEMBERSHIP NO. 387), PIN – 691013** **BY ADV PRIYA SHANAVAS** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FISHERIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE DIRECTOR OF FISHERIES GOVERNMENT OF KERALA (REGISTRAR OF FISHERIES CO-OPERATIVE SOCIETY), THIRUVANANTHAPURAM, PIN - 695001** - **3 THE JOINT DIRECTOR OF FISHERIES (REGISTRAR OF FISHERIES CO-OPERATIVE SOCIETY) SOUTH ZONE, KAMALESWARAM, THIRUVANANTHAPURAM, PIN - 695002** - **4 THE JOINT REGISTRAR OF FISHERIES (REGISTRAR OF FISHERIES CO-OPERATIVE SOCIETY) SOUTH ZONE, KAMALESWARAM, THIRUVANANTHAPURAM, PIN - 695002** - **5 THE STATE CO-OPERATIVE CHIEF ELECTION COMMISSIONER THIRUVANANTHAPURAM, PIN - 695001** - **6 JONAKAPPURAM- MOOTHAKKARA FISHERMAN DEVELOPMENT WELFARE CO-OPERATIVE SOCIETY NO. FQ-98 MOOTHAKKARA, VADDY P.O., KOLLAM, REPRESENTED BY ITS SECRETARY, PIN - 691013** W.P.(C) Nos.39252 & 40636 of 2023 : 4 : - **7 ADMINISTRATOR JONAKAPPURAM- MOOTHAKKARA FISHERMAN DEVELOPMENT WELFARE CO-OPERATIVE SOCIETY NO. FQ-98, FISHERIES DEVELOPMENT OFFICER, HEAD QUARTERS, THEVALLY, KOLLAM, PIN - 691009** - **8 THE ELECTORAL OFFICER MOOTHAKKARA FISHERMAN DEVELOPMENT WELFARE COOPERATIVE SOCIETY NO. FQ-98, MOOTHAKKARA, VADDYP.O., KOLLAM (ASSISTANT REGISTRAR OF FISHERIES, COLLECTORATE, CUTCHERY P.O., KOLLAM, PIN - 691013** - **9 THE RETURNING OFFICER MOOTHAKKARA FISHERMAN DEVELOPMENT WELFARE COOPERATIVE SOCIETY NO. FQ-98, MOOTHAKKARA, VADDYP.O., KOLLAM (THE FISHERIES DEVELOPMENT OFFICER, GRADE-I, COLLECTORATE, CUTCHERY P.O., KOLLAM, PIN – 691013** **BY ADV S.SREEKUMAR (KOLLAM) SRI.C.M.NAZAR, SC SRI.DHEERAJ A.S., GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.12.2023, ALONG WITH WP(C).39252/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.39252 & 40636 of 2023 : 5 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` W.P.(C) Nos.39252 and 40636 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 19[th] day of December, 2023_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ W.P.(C) No.39252/2023 has been filed by the petitioner, who is a member of the 6[th] respondentCo-operative Society, seeking to direct the 8[th] respondentElectoral Officer and the 9[th] respondent-Returning Officer to consider Exts.P5 and P6 objections filed by the petitioner before them respectively and pass orders and to prepare a valid and legal final voters list as directed in Ext.P2 judgment. 2. W.P.(C) No.40636/2023 has been filed by the same petitioner seeking to set aside Ext.P7 order and P8 final voters list and to quash both of them, striking down the illegal decision taken by the respondents. The petitioner has also sought to direct the respondents to remove fictitious W.P.(C) Nos.39252 & 40636 of 2023 : 6 : persons specified in Ext.P9 series and exclude the ineligible persons cited in Ext.P10. The parties and exhibits are referred to in this judgment as they are arrayed/marked in W.P.(C) No.40636/2023. 3. The petitioner states that he is a member of the Jonakappuram Moothakara Matsya-Thozhilali Vikasana Kshema Sahakarana Sanghom Limited, Kollam. Against the election conducted on 30.01.2018, the petitioner had filed Arbitration Case No.8/2018 as the elections were irregular. The petitioner states that due to passage of time, the said Arbitration Case has become infructuous. Now, Ext.P3 election notification dated 10.11.2023 is published proposing to conduct election on 28.01.2023. 4. The petitioner and six others approached this Court filing W.P.(C) No.2944/2023 praying to conduct election following the mandate of Rule 35A of the Kerala Co-operative Societies Rules, 1969 and to set aside the voters list prepared by the Administrator. This Court disposed of the said writ petition as per Ext.P2 judgment W.P.(C) Nos.39252 & 40636 of 2023 : 7 : observing that this Court had earlier directed to ensure that proper list of voters is prepared before proceeding with the election. 5. The petitioner states that the respondents have published Ext.P4 preliminary voters list. In the earlier voters list, 162 persons were illegally included assigning them membership numbers of 162 original members who were illegally removed from membership by the Administrator. The petitioner states that among the 162 persons, whose names were illegally included, only 15 persons really exist and they are not members of the Society. Apart from that, 96 fictitious members are included in Ext.P4 voters list. 6. The petitioner further alleged that 145 original members were removed from membership without following any procedure and without hearing them. Their removal is void ab initio. Their names have to be included in the final voters list. The petitioner also alleged that 40 persons who were removed from the voters list following due process of law by the Managing Committee in the year 2015, have been W.P.(C) Nos.39252 & 40636 of 2023 : 8 : illegally re-inducted by the Administrator. They are not eligible to be included in the final voters list. 7. The petitioner filed Exts.P5 and P6 objections to Ext.P4 voters list. The persons whose names were illegally removed have also filed their objections. The petitioner was heard on 24.11.2023 while finalising the voters list. However, by Ext.P7 order dated 27.11.2023, the Electoral Officer has rejected the objections. On the same day, the Electoral Officer published Ext.P8 final voters list. Unqualified fictitious persons were included in Ext.P8 list and qualified persons were excluded. The statutory mandate of Rule 35A(4) of the Kerala Co-operative Societies Rules, 1969, has been ignored. 8. The petitioner states that unless Ext.P7 order and Ext.P8 final voters list are set aside, an impartial and independent election cannot be conducted. 9. The Standing Counsel for the Election Commission entered appearance and resisted the writ petitions. On behalf of respondents 5, 8 and 9, it is W.P.(C) Nos.39252 & 40636 of 2023 : 9 : submitted that the final voters list have been prepared and finalised following due process of law. The objections filed by the petitioner and other objectors were duly considered. Ineligible persons have been removed from the final voters list. Those who were found to be eligible were included. The petitioner is trying to thwart the election. The petitioner has an effective alternate remedy of filing election petition. Once the election is notified by the Kerala Co-operative Election Commission, the election process cannot be interfered by this Court in exercise of the powers under Article 226 of the Constitution of India. As the petitioner has an alternate remedy, the petitioner should be relegated to avail the same. 10. The counsel for the petitioner relied on the judgment of this Court in _**Justin B. and another v. State of Kerala and others** [2017 (2) KLT 17]_ and contended that when grave anomaly is found in preparation of voters list and when this Court takes a _prima facie_ view that Administrative Committee has acted unfairly and illegally in admitting new members, it is only just and proper that the Electoral Officer ## W.P.(C) Nos.39252 & 40636 of 2023 : 10 : is called upon to consider the legality or validity of the inclusions made in the voters list. Relying on the judgment of the Apex Court in _**Chandrakumar v. Union of India** [(1997) 3 SCC 261]_ , the counsel for the petitioner argued that in such circumstances, the jurisdiction of this Court is not ousted. 11. Relying on the judgment of this Court in _**Devassy v. Assistant Registrar of Co-operative Societies** [1976 KLT 40]_ , it was urged that proper electoral roll is a fundamental factor before the election is actually held and if there is complaint that no such electoral roll was prepared, then this Court can certainly step in, even before the election is actually held. 12. The Standing Counsel for the 6[th] respondent relied on the judgment of the Hon’ble Apex Court in _**Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others** [(2001) 8 SCC 509]_ and argued that once the statute provides that preparation of the voters W.P.(C) Nos.39252 & 40636 of 2023 : 11 : list shall be part of the election process, there is no reason to hold that the preparation of the electoral roll is not an intermediate stage in the process of election of a specified Society. 13. I have heard the learned counsel for the petitioner, the learned Standing Counsel representing the State Co-operative Election Commission, the learned Standing Counsel representing the 6[th] respondent-Society and the learned Government Pleader representing official respondents. 14. The grievance of the petitioner is regarding illegal inclusion of ineligible voters in the final voters list and illegal exclusion of eligible voters from the list, prepared for election to the Managing Committee of the 6[th] respondent-Society. Ext.P3 is the election notification dated 10.11.2023. As per Ext.P3 notification, preliminary voters list was published on 16.11.2023. Members were given opportunity to submit objections to the voters list till 23.11.2023. The objections were considered on 24.11.2023. Thereafter, final voters list W.P.(C) Nos.39252 & 40636 of 2023 : 12 : was published on 27.11.2023. The petitioner was also heard before finalisation of the voters list. 15. Going by the Kerala Co-operative Societies Act and the Rules, preparation of voters list is a part of the election process for constituting Managing Committee of Societies. Ext.P3 election notification was published on 10.11.2023. The preparation of electoral roll is an intermediary stage in the process of election of the Managing Committee of Societies governed by the Kerala Co-operative Societies Act, 1969. As election process is set in motion by Ext.P3 notification, this Court should not stay the continuation of the election process even though there may be some alleged illegalities or breach of rules while preparing the electoral roll. 16. The Kerala Co-operative Societies Act provides a statutory remedy in Section 69 for resolution of any dispute arising in connection with the election of the Board of management. Section 69 mandates that notwithstanding anything contained in any law for the time being in force, if a W.P.(C) Nos.39252 & 40636 of 2023 : 13 : dispute arises in connection with the election with the Board of Management of the Society, such dispute shall be referred to the Co-operative Arbitration Court and the Arbitration Court shall decide such disputes and no other court or other authority shall have jurisdiction to entertain any suit or further proceedings in respect of such dispute. In view of the afore legal provision, no interference can be made in the election process which has already been set in motion by Ext.P3 notification. The writ petitions are therefore dismissed. Sd/- **N. NAGARESH, JUDGE** aks/15.12.2023 W.P.(C) Nos.39252 & 40636 of 2023 : 14 : ## **APPENDIX OF WP(C) 39252/2023** ## **PETITIONER'S EXHIBITS** **Exhibit P1 THE TRUE COPY OF THE INTERIM ORDER IN W.P.(C.) NO. 2944 OF 2023 OF THIS HON'BLE COURT DATED 27.01.2023 Exhibit P2 HE TRUE COPY OF THE JUDGEMENT IN W.P. (C.) NO. 2944 OF 2023 OF THIS HON'BLE COURT DATED 25.09.2023** **Exhibit P3 TRUE COPY OF THE NOTIFICATION NO E(1) 6989/2023/SCEC DATED 10.11.2023 ISSUED BY THE 5TH RESPONDENT** **Exhibit P4 THE TRUE COPY OF THE PRELIMINARY VOTERS LIST PUBLISHED BY THE 8TH RESPONDENT** **Exhibit P5 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER ON 22.11.2023 BEFORE 8TH RESPONDENT** **Exhibit P6 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER ON 22.11.2023 BEFORE THE 9TH RESPONDENT** W.P.(C) Nos.39252 & 40636 of 2023 : 15 : ## **APPENDIX OF WP(C) 40636/2023** ## **PETITIONER'S EXHIBITS** **Exhibit P1 THE TRUE COPY OF THE INTERIM ORDER IN W.P.(C.) NO. 2944 OF 2023 OF THIS HON'BLE COURT DATED 27.01.2023 Exhibit P2 THE TRUE COPY OF THE JUDGEMENT IN W.P. (C.) NO. 2944 OF 2023 OF THIS HON'BLE COURT DATED 25.09.2023** **Exhibit P3 TRUE COPY OF THE NOTIFICATION DATED 10.11.2023 ISSUED BY THE 5TH RESPONDENT** **Exhibit P4 THE TRUE COPY OF THE PRELIMINARY VOTERS LIST** **Exhibit P5 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER ON 22.11.2023 BEFORE THE 8TH RESPONDENT** **Exhibit P6 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER ON 22.11.2023 BEFORE THE 9TH RESPONDENT Exhibit P7 THE TRUE COPY OF THE ORDER DATED 27.11.2023, PASSED BY THE ELECTORAL OFFICER, 8H RESPONDENT Exhibit P8 TRUE COPY OF THE FINAL VOTERS LIST DATED 27.11.2023 PUBLISHED BY THE ELECTORAL OFFICER (R8)** **Exhibit P9** **Exhibit P10** **THE TRUE COPIES OF THE POSTAL ARTICLES WITH REGARD TO THE FICTITIOUS PERSONS THE TRUE COPY OF THE RELEVANT PAGE OF THE MINUTES BOOK , DATED 25.10.2015 WHICH EVIDENCES THAT THE MEMBERS WERE EXPELLED BY THE GENERAL BODY**