Rajesh Kumar C. vs State Co-Operative Election Commission and others

``` PRESENT ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023 / 17TH KARTHIKA, 1945 ``` **==> picture [174 x 10] intentionally omitted <==** ## `PETITIONERS:` ``` ADV. RAJESH KUMAR C., AGED 51 YEARS, CANDIDATE, THIRUVALLA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD., NO.A159, THIRUVALLA, PATHANAMTHITTA DISTRICT – 689 101, RESIDING AT SREEVILASAM, CHATHANKERI, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN – 689 101. ``` ``` BY ADVS. NISHA GEORGE GEORGE POONTHOTTAM (SR.) ANSHIN K.K ``` ## `RESPONDENTS:` ``` 1STATE CO-OPERATIVE ELECTION COMMISSION, 3RD FLOOR, CO BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN – 695 033, REPRESENTED BY ITS SECRETARY. ``` ``` 2THE ELECTORAL OFFICER, ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVALLA, PATHANAMTHITTA DISTRICT – 689 101, ELECTION TO THE THIRUVALLA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD., NO.A159, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN – 689 101. 3THE RETURNING OFFICER AND OFFICE INSPECTOR, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVALLA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD., NO.A159, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN – 689 101. ``` ``` 4THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA, PIN – 689 645. ``` 2 W.P.(C) No.36914/2023 - `5 DEPUTY SUPERINTENDENT OF POLICE, THIRUVALLA, PATHANAMTHITTA, PIN – 689 101.` - `6 THE CIRCLE INSPECTOR OF POLICE, THIRUVALLA POLICE STATION, THIRUVALLA, PATHANAMTHITTA, PIN – 689 101.` - `7 THE DISTRICT COLLECTOR, PATHANAMTHITTA DISTRICT, PIN – 689 645.` - `8 THIRUVALLA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.A159, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN – 689 101, REPRESENTED BY ITS SECRETARY.` ``` GOVERNMENT PLEADER, SRI.SREEJITH V.S ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C) No.36914/2023 ## JUDGMENT ( _Dated: 8[th] November, 2023)_ The petitioner is a candidate in the election to the managing committee of the 8[th] respondent society. The election to the society is to be held on 12.11.2023. The bank has more than 11,000 eligible voters within the area of operation of the bank. It is a common practice resolved by the party members of the ruling party that the members outside the area of the co-operative society are brought to cast votes in the election of the societies. For the last 25 years, there was no contest in the election to the managing committee of the 8[th] respondent bank. In the present election, there are contesting candidates. The method adopted is to bring people from outside, and with the support of the polling officers, they are allowed to cast votes. 2. The petitioner points out in the writ petition that in the election of the managing committee to Thiruvalla East Co-operative Bank, an Advocate Commissioner was appointed by this court to observe the election, and he filed a commission report on 03.12.2021. In a similar line in W.P.(C) No.23453 of 2023, another Advocate Commission was appointed, and the report was 4 W.P.(C) No.36914/2023 filed on 03.08.2023. It is stated that a reading of Exts.P2 and P3 would show that there were instances of bogus voting, impersonation, etc. The petitioner apprehends that the said bogus voting and impersonation will also happen in the election to be conducted on 12.11.2023. It is also submitted that even though more than 11,000 members are in the society, only less than 3,000 members have taken the identity cards. There is an allegation against the returning officer and the electoral officer that they are acting arbitrarily and favouring the ruling party candidates. 3. Therefore, the petitioner approached the Superintendent of Police, Pathanamthitta, and submitted a report for adequate steps for providing police protection for the polling till the counting and the declaration of results through Ext.P4. A similar request was submitted to the 5[th] and 6[th] respondents. The petitioner points out that in respect of the election to the managing committee of Thodupuzha Primary Co-operative Agricultural and Rural Development Bank Ltd., a candidate has approached this court by filing W.P.(C)No.15659 of 2022, seeking police protection and the appointment of Advocate Commissioner and this court has granted police protection and appointed an Advocate Commissioner. The Division Bench of this Court in 5 W.P.(C) No.36914/2023 W.A.No.92 of 2022 had directed the Director General of Police to cause an enquiry through an officer at the appropriate level to find out the officers who are responsible for not taking effective steps for compliance with the directions issued by this Court in W.P.(C) No.15659 of 2022. In the said circumstances, the petitioner has submitted a request before respondents 2 and 3 for installing CCTV cameras at the entrance of the polling station so as to identify the persons coming to vote, since non-members are not entitled to enter the compound where the election was conducted. It is also submitted that video graphing each voter’s identity and verification of the Form-6A identity card with the 6B register will definitely check the impersonation of the voters. The request is produced as Ext.P10, but no steps have been taken by respondents 2 and 3 in this regard. Therefore, he has approached this court seeking police protection for the conduct of the election to the managing committee on the date of polling till the declaration of results. The 2[nd] prayer is sought, for installing CCTV cameras at the entrance of the polling station and to video graph the entire polling process conducted on 12.11.2023, till the declaration of results. The 3[rd] prayer is to issue a writ of mandamus directing the returning officer and District Collector to ensure 6 W.P.(C) No.36914/2023 verification of identity cards, especially Aadhar cards, using the devices available to verify the genuineness of the said card, so also Form-6A card with reference to the register maintained by the society scruples before allowing the person to cast his/her vote in the polling station. 4. Learned standing counsel for the 1[st] respondent submits that the 1[st] respondent, as well as the 3[rd] respondent, have already taken precautionary measures to see that the election to the managing committee of the 8[th] respondent bank is done in a democratic way. Respondents 4 to 6, through the Government Pleader, had submitted that necessary police protection could be given on the polling day for the smooth conduct of the election and to prevent untoward incidents. 5. As regards the bogus voting and impersonation, the learned standing counsel for the 1[st] respondent submits that there would be polling officers in the booth and the agent of each candidate is at the polling station, and if at all there is any dispute regarding the identity of any person, the polling officer is authorised and directed to verify the identity with 6A identity card issued with the 6B register wherein the photograph of the voter is 7 W.P.(C) No.36914/2023 affixed. He also submits that verifying each voter is not practicable and only when there is a challenge regarding the identity can the same be done. 6. The bank issues 6A identity cards to each voter and a corresponding register is kept by the bank as a 6B register noting the name and details of the voter with the photograph of the voter. Suppose there is any challenge to the identity of any voter who comes to the polling booth to cast the vote. In that case, the polling officer is authorised/empowered by the returning officer to verify the identity of the voter with a 6A identity card as well as a 6B register. Moreover, the entire election process right from polling till the declaration, can be video graphed at the expense of the petitioner. This will prevent bogus voting and impersonation as the CCTV footage would be a record of the same. It is a fact that in an election, there would be some kind of disturbance either from the voter or from the other persons who are supporting each candidate. Therefore, taking note of this fact, this Court has already issued orders granting police protection to various elections to the managing committees of Co-operative Societies and banks and also to video graph the entire election process from the polling till the declaration of the result the petitioner is also entitled to the same treatment. 8 W.P.(C) No.36914/2023 ## 7. The question of whether an observer/an Advocate Commissioner is to be appointed to oversee the election, has been a subject matter of Writ Appeal No.1729 of 2023, and the Division Bench of this Court has held as follows: _8. In M/s. Larsen and Toubro Ltd. v. State of Gujarat [(1998) 4 SCC 387] the Apex Court was dealing with a case arising out of the proceedings initiated for the acquisition of land for M/s. Larsen and Toubro Ltd. under the provisions of the Land Acquisition Act, 1894. The Apex Court noticed that in the absence of any allegation that Rule 3 of the Land Acquisition (Companies) Rules, 1963 had not been complied with and there being no particulars in respect of non-compliance of Rule 4, it is difficult to see as to how the High Court could have reached the finding that statutory requirements contained in these Rules were not fulfilled before issuance of notification under Section 4 and declaration under Section 6 of the Land Acquisition Act. High Court did not give any reason as to how it reached the conclusion that Rules 3 and 4 had not been complied with in the face of the record of the case. Rather, it returned a finding which is unsustainable that it was "not possible on the basis of the material on record to hold that there was compliance with Rules 3 and 4". The Apex Court held that it is not enough to allege that a particular Rule or any provision has not been complied with. It is a requirement of good pleading to give - details, i.e., particulars as to why it is alleged that there is non compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid of any particulars. No issue can be raised on a plea, the foundation of which is lacking. Even where rule nisi is issued, it is not always for the department to justify its action when the court finds that a plea has been advanced without any substance, though ordinarily department may have to place its full cards before the court. On the facts of the case, the Apex Court found that the State has more than justified its stand that there has been compliance not only with Rule 4 but with Rule 3 as well, though there was no challenge_ 9 W.P.(C) No.36914/2023 _to Rule 3 and the averments regarding non-compliance with Rule 4 were sketchy and without any particulars whatsoever. High Court was, therefore, not right in quashing the acquisition proceedings._ In view of the said observations and the findings of the Division Bench, I am of the opinion that an observer /Advocate Commissioner is not warranted in view of the submissions of the 1[st] and 4[th] respondent recorded by this court. Therefore, the writ petition is disposed of directing respondents 4 to 6 to deploy sufficient police force and to afford adequate police protection to the voters, the polling booths, and its premises during the day of polling to the managing committee of the 8[th] respondent Society, scheduled to be held on 12.11.2023 at Thiruvalla, M.G.M.L.P. School, till the declaration of results. It is also ordered that the 3[rd] respondent shall make arrangements to install CCTV cameras at the entrance of the polling station and take videography of the entire polling process till the declaration of the results in the premises without hindering the secrecy of the polling at the expense of the petitioner. It is also made clear that in the event of any dispute as to the identity of any person, the 3[rd] respondent and the polling officer shall verify the 10 W.P.(C) No.36914/2023 genuineness of the card issued in Form-6A with the 6B register maintained at the bank to prove the identity. With the above observation, the writ petition is allowed in part. _Sd/-_ BASANT BALAJI, JUDGE ss 11 W.P.(C) No.36914/2023 ## **`APPENDIX OF WP(C) 36914/2023`** ``` PETITIONER EXHIBITS: ``` ``` Exhibit-P1TRUE COPY OF THE AMENDED ELECTION NOTIFICATION BEARING NO.E(2)5737/2023/S.C.E.C DATED 01.11.2023 ISSUED BY THE 1ST RESPONDENT ELECTION COMMISSION. ``` ``` Exhibit-P2TRUE COPY OF ADVOCATE COMMISSIONER REPORT DATED 03.12.2021 FILED BEFORE THIS HON'BLE COURT IN W.P.(C) NO.26205 OF 2021. ``` - `Exhibit-P3 TRUE COPY OF THE ADVOCATE COMMISSIONER REPORT DATED 03.08.2023 FILED BEFORE THIS HON'BLE COURT IN W.P.(C) NO.23453 OF 2023.` ``` Exhibit-P4TRUE COPY OF THE REQUEST DATED 04.11.2023 SUBMITTED BY THE PETITIONER BEFORE THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA ``` ``` Exhibit-P5TRUE COPY OF THE RECEIPT DATED 06.11.2023 RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE SUPERINTENDENT OF POLICE ``` - `Exhibit-P6 TRUE COPY OF THE REQUEST DATED 04.11.2023 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY SUPERINTENDENT OF POLICE, THIRUVALLA.` ``` Exhibit-P7TRUE COPY OF THE RECEIPT DATED 05.11.2023 RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE ``` ``` Exhibit-P8THE PETITIONER SUBMITTED A COPY OF THE REQUEST FOR PROVIDING POLICE PROTECTION BEFORE THE CIRCLE INSPECTOR OF POLICE ALSO. TRUE COPY OF THE RECEIPT DATED 05.11.2023 RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE CIRCLE INSPECTOR OF POLICE ``` ``` Exhibit-P9TRUE COPY OF THE ORDER DATED 16.06.2022 PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN W.A.NO.92 OF 2022 ``` ``` Exhibit -P10TRUE COPY OF THE REQUEST DATED 06.11.2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND AND 3RD RESPONDENTS ``` 12 W.P.(C) No.36914/2023 - `Exhibit-P11 COPY OF THE FIR IN CRIME NO 1163 OF 2021 OF POTHANIKKAD POLICE STATION, ERNAKULAM RURAL DISTRICT.` ``` Exhibit -P12COPY OF THE FIR IN CRIME NO 1164 OF 2021 OF POTHANIKKAD POLICE STATION, ERNAKULAM RURAL DISTRICT. ``` ``` Exhibit -P13COPY OF THE FIR IN CRIME NO 1165 OF 2021 OF POTHANIKKAD POLICE STATION, ERNAKULAM RURAL DISTRICT. ``` - `Exhibit -P14 COPY OF THE FIR IN CRIME NO 1166 OF 2021 OF POTHANIKKAD POLICE STATION, ERNAKULAM RURAL DISTRICT.` - `Exhibit-P15 TRUE COPY OF THE INTERIM ORDER DATED 19.10.2023 IN W.P(C)NO.34157 OF 2023 PASSED BY THIS HON'BLE COURT` ``` Exhibit -P16TRUE COPY OF THE INTERIM ORDER DATED 22.03.2023 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.10049 OF 2023. ``` - `Exhibit-P17 TRUE COPY OF THE INTERIM ORDER DATED 24.02.2023 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.6565 OF 2023` - `Exhibit-P18 TRUE COPY OF THE ORDER NO.ARGTVLA/ELECTION/2023 DATED 06.11.2023 ISSUED BY THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, THIRUVALLA`