Praveen P. Kottakuzhi v. State Co-operative Election Commission and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 WP(C) NO. 43627 OF 2023 ``` ## **`PETITIONER:`** ``` PRAVEEN.P.KOTTAKUZHI AGED 38 YEARS S/O PRABHAKARAN PILLAI PRESIDENT, TRIVANDRUM LABOUR CONTRACT CO-OPERATIVE SOCIETY LIMITED NO: T 1072, KUMARAPURAM, AYIROPARA,THIRUVANANTHAPURAM, PIN – 695584 ``` ## **`BY ADV K.M.SATHYANATHA MENON`** ## **`RESPONDENTS:`** ``` 1THE STATE CO-OPERATIVE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, PIN – 695033 ``` ``` 2THE ELECTORAL OFFICER/ASSISTANT REGISTRAR (GENERAL), THIRUVANANTHAPURAM OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PALAYAM, THIRUVANANTHAPURAM-695001 ELECTION TO THE MANAGING COMMITTEE OF KERALA STATE LABOUR CO OPERATIVE'S FEDERATION LIMITED NO 4491 [LABOURFED], THIRUVANANTHAPURAM, COSTECH BUILDING, T.C 11/738(1), DIVISION OFFICE ROAD, NEAR HOTEL PRASANTH, PMG, THIRUVANANTHAPURAM, PIN – 695033 ``` ``` WP(C) No.43627 of 2023 ``` ``` 2 ``` - **`3 THE RETURNING OFFICER/UNIT INSPECTOR PAPPANAMCODE, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PALAYAM, THIRUVANANTHAPURAM, ELECTION TO THE MANAGING COMMITTEE OF KERALA STATE LABOUR CO OPERATIVE'S FEDERATION LIMITED NO 4491 [LABOURFED], THIRUVANANTHAPURAM-695001, COSTECH BUILDING, T.C 11/738(1), DIVISION OFFICE ROAD, NEAR HOTEL PRASANTH, PMG, THIRUVANANTHAPURAM, PIN - 695033`** - **`4 KERALA STATE LABOUR CO OPERATIVE'S FEDERATION LIMITED NO 4491 [LABOURFED], THIRUVANANTHAPURAM, COSTECH BUILDING, T.C 11/738(1), DIVISION OFFICE ROAD, NEAR HOTEL PRASANTH, PMG, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN, PIN - 695033`** - **`5 ADMINISTRATIVE COMMITTEE TO KERALA STATE LABOUR CO OPERATIVE'S FEDERATION LIMITED NO 4491 [LABOURFED],THIRUVANANTHAPURAM, COSTECH BUILDING, T.C 11/738(1), DIVISION OFFICE ROAD, NEAR HOTEL PRASANTH, PMG, THIRUVANANTHAPURAM, REPRESENTED BY ITS CONVENOR, PIN – 695033`** ``` SRI.C.M. NAZAR, STANDING COUNSEL ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.43627 of 2023 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 22[nd ] day of December, 2023 The petitioner, who is a Member and President of Trivandrum Labour Contract Co-operative Society Limited, has filed this writ petition seeking to direct respondents 1 to 3 to stop the conduct of the election notified to the 4[th] respondent-Federation vide Ext.P1 and to further direct respondents 1 to 3 to exclude the members listed in Ext.P7 from Ext.P6 final Voters List and from the election process notified as per Ext.P1. The petitioner further seeks to direct the 1[st] respondent to conduct election to the 4[th] respondentFederation after preparing a fresh Voters List containing eligible members only. 2. It is the specific case of the petitioner that the members listed as Serial Nos.122 to 172 in Ext.P2 preliminary Voters List are enrolled by the Administrative Committee. This ``` WP(C) No.43627 of 2023 ``` ``` 4 ``` Court in a catena of decisions has held that the members enrolled by the Administrative Committee cannot be included in the Voters List. In spite of objections, such persons enrolled by the Administrative Committee were included in Ext.P6 final Voters List at Serial Nos.137 to 172. Ext.P6 final Voters List is therefore tangibly and palpably illegal. No election can be conducted on the basis of the said final Voters List. 3. Regarding the alternate remedy under Section 69 of the Kerala Co-operative Societies Act, counsel for the petitioner relied on the judgment of this Court in W.P.(C) No.8708/2007 and contended that when there is patent illegality in the process of election, this Court can interfere in the matter without driving the aggrieved party to the remedy under Section 69. As Ext.P6 Voters List is prepared in violation of the law laid down by this Court, Ext.P6 is liable to be set aside to the extent ineligible voters are included. ``` WP(C) No.43627 of 2023 ``` ``` 5 ``` 4. Standing Counsel for the 1[st] respondent, on the other hand, relied on the judgment of this Court in _**Denny V.P. v. Joint Registrar of Co-operative Societies (General) and others** [2019 KHC 4954]_ to contend that if there is breach of rules or there is non-compliance of certain mandatory provisions of rules while preparing the electoral roll, it could be challenged under Rule 81(d)(iv) of KCS Rules by means of an Election Petition. Therefore, no interference is called for at this stage since election notification is already published and the election process is going on, urged the Standing Counsel representing the 1[st] respondent. The Standing Counsel also relied on the judgment of the Apex Court in _**Shri Sant Sadguru Janardan Swami v. State of Maharashtra and others** [2001 (8) SCC 509]._ 5. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the 1[st] respondent. ``` WP(C) No.43627 of 2023 ``` ``` 6 ``` 6. The grievance of the petitioner is about the inclusion of certain members in Ext.P6 final Voters List. The allegation of the petitioner is that those persons objected to in the matter of inclusion in the Voters List, are members who are enrolled by the Administrative Committee. The counsel for the petitioner relied on the judgment of this Court in _**T.K. Porinchu v. Joint Registrar of Co-operative Societies** [2004 (1) KLT 281]_ to contend that the Administrator has no power to enroll new members. In view of the categorical pronouncement of the Supreme Court that the Administrator has no power to admit new members, the position is not open to challenge, contends the counsel for the petitioner. 7. The petitioner also relied on the judgment of the Apex Court in _**Joint Registrar of Co-operative Societies v. T.A. Kuttappan** [2000 (6) SCC 127]_ and urged that the Administrator or Administrative Committee has no power to enroll new members. ``` WP(C) No.43627 of 2023 ``` ``` 7 ``` 8. I find that irrespective of the competency of the Administrative Committee to enroll new members, a Division Bench of this Court in _**Denny V.P.**_ (supra) has held that if there is breach of rules or there is non compliance of certain mandatory provisions of rules while preparing the electoral rule, it could be challenged under the provisions of the Kerala Co-operative Societies Rules and merely because illegality in the matter of preparation of electoral roll is alleged this Court will not be justified in interfering with the election process once it is started, since such illegality, if established later, could be dealt with appropriately in an election petition. 9. In view of the Division Bench judgment of this Court, I am not inclined to stall the election in the middle of the election process. However, taking into consideration the specific allegation made by the petitioner in the writ petition, I am of the view that the votes casted by the members who are allegedly enrolled by the Administrative Committee, should be kept in a separate Ballot Box in the election. ``` WP(C) No.43627 of 2023 ``` ``` 8 ``` The writ petition is therefore disposed of without granting any relief prayed for by the petitioner and at the same time, directing the respondents that the votes cast by the members included in Ext.P7, who are enrolled by the Administrative Committee, shall be kept in a separate Ballot Box, so that the petitioner can raise their grievance before the appropriate forum after the elections, if found necessary. ## **Sd/-** **N.NAGARESH JUDGE** spk ``` WP(C) No.43627 of 2023 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 43627/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` A TRUE COPY OF THE ELECTION NOTIFICATION NO: E(2)/7154/2023/SCEC DATED 23.11.2023 ISSUED BY THE 1ST RESPONDENT ``` - **`Exhibit P2 A TRUE COPY OF THE NOTICE OF PUBLICATION OF THE PRIMARY ELECTORAL ROLL PUBLISHED IN FORM 34 BY THE 2ND RESPONDENT DATED 28.11.2023`** ``` Exhibit P3 ``` - **`A TRUE COPY OF THE AUDIT CERTIFICATE OF THE 4TH RESPONDENT FEDERATION PUBLISHED BY THE ADDITIONAL DIRECTOR OF CO-OPERATIVE AUDIT, THIRUVANANTHAPURAM ON 30.10.2023`** - **`Exhibit P4 A TRUE COPY OF THE PROCEEDINGS NO: RCS/166/2023 MT(1) DATED 18.01.2023 OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES`** - **`Exhibit P5 A TRUE COPY OF THE OBJECTION FILED BY THE PRIMARY LABOUR CONTRACT COOPERATIVE SOCIETIES ASSOCIATION, TRIVANDRUM TO EXT P2 PRIMARY ELECTORAL ROLL DATED 5.12.2023`** ``` Exhibit P6A TRUE COPY OF THE NOTICE OF PUBLICATION OF THE FINAL ELECTORAL ROLL PUBLISHED IN FORM 35 BY THE 2ND RESPONDENT DATED 7.12.2023 ``` - **`Exhibit P7 A TRUE COPY OF THE LIST OF MEMBERS ADDED BY ADMINISTRATIVE COMMITTEE IN EXT P2`** ``` Exhibit P8A TRUE COPY OF THE REPLY OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT FROM THE PUBLIC INFORMATIONOFFICER,ASSISTANT REGISTRAR [GENERAL]OFFICE, KALPATTA DATED 13.04.2022 ``` ``` Exhibit P9 ``` ``` A TRUE COPY OF THE NOTICE PUBLISHED BY THE ELECTORAL OFFICER DATED 23-02-2021 ``` ``` WP(C) No.43627 of 2023 ``` ``` 10 ``` ``` Exhibit P10A TRUE COPY OF THE ELECTION REGISTER MAINTAINED BY THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES IN FILE NO: 217/2021ANDOBTAINEDBYTHE PETITIONER UNDER THE RIGHT TO INFORMATION ACT, 2005 ```