S.Sasi and Ramachandran K. v Travancore Devaswom Board and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941** ## **WP(C).No.5467 OF 2019(G)** ## **PETITIONERS:** - **1 S.SASI,'SREEMANGALAM', KAITHATHEKKU, CHETTIKULANGARA-690 106** - **2 RAMACHANDRAN K., 'ANUSREE',KAITHATHEKKU, CHETTIKULANGARA-690 106** **BY ADVS. SRI.R.KRISHNA RAJ SMT.E.S.SONI** **RESPONDENTS:** - **1 TRAVANCORE DEVASWOM BOARD REPRESENTED BY ITS SECRETARY, DEVASWOM BOARD BUILDING, THIRUVANANTHAPURAM-605036** - **2 ADMINISTRATIVE OFFICER, CHETTIKULANGARA DEVASWOM, TRAVANCORE DEVASWOM BOARD, MAVELIKKARA-690101** - **3 SREEDEVI VILASOM HINDUMATHA CONVENTION, REPRESENTED BY ITS SECRETARY, MR.RAJESH, CHETTIKULANGARA TEMPLE, CHETTIKULANGARA-690106** - **4 REVENUE DIVISIONAL OFFICER, OFFICE OF THE R.D.O., CHENGANNUR-689121** - **5 KAITHATHEKKE HYNDAVA KARAYOGAM, REPRESENTED BY ITS PRESIDENT MR.UNNIKRISHNAN NAIR, KAITHATHEKKU, CHETTIKULANGARA-690 106** W.P.(C).5467/2019 2 - **6 UNNIKRISHNAN NAIR, MUNDANPUZHATHUTHARAYIL, KAITHATHEKKU, CHETTIKULANGARA-690 106** - **7 PRASANNA KUMAR,VALAVORRKOICKAL,KAITHATHEKKU, CHETTIKULANGARA-690 106** - **8 RAVI.S KADAKKAVILAYIL, KAITHATHEKKU, CHETTIKULANGARA-690 106** - **9 GOPKUMAR K., ANAYIDATHU KRISHNA MANDIRAM, KAITHATHEKKU, CHETTIKULANGARA-690 106** - **10 UDAYAN ARYA NIVAS,KAITHATHEKKU, CHETTIKULANGARA-690 106** - **11 VIJAYAKUMAR.P** - **VIJAYA BHAVANAM,KAITHATHEKKU, CHETTIKULANGARA-690 106** - **12 SUDARSHANAN KRISHNAVENI,KAITHATHEKKU, CHETTIKULANGARA-690 106** - **13 T.HARIKUMAR,AKKARATHEKKATHIL,KAITHATHEKKU, CHETTIKULANGARA-690 106** - **14 RAJESH KUMAR T., MUTHUVANPUZHATHUPADEETTATHIL, KAITHATHEKKU, CHETTIKULANGARA-690 106** - **15 VISWAMBHARAN N., PRASHANTH BHAVAN, KAITHATHEKKU, CHETTIKULANGARA-690 106** - **16 CHETTIKULANGARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, CHETTIKULANGARA-690106** - **17 ADDL.R17 SUPERINTENDANT OF POLICE ALAPPUZHA.** - **18 ADDL.R18 CIRCLE INSPECTOR OF POLICE MAVELIKKARA.** W.P.(C).5467/2019 3 ## **19 ADDL.R19 TAHSILDAR MAVELIKKARA.** **(ADDL.R17 TO R19 ARE IMPLEADED AS PER ORDER DATED 26/02/2019 IN IA.NO.01/2019)** **20 ADDL. R20. KRISHNAN, AGED 73 YEARS, S/O. THEVAN, RESIDING AT MECHERITHARA PADINJARECHIRAYIL, KAITHATHEKKU, CHETTIKULANGARA P.O., MAVELIKKARA TALUK, ALAPPUZHA-690106. 21 ADDL. R21. VIJAYAN ASHARI P. ALIAS VIJAYAN THARAYIL, S/O. LATE PARAMESWARN ASHARI, THARAYIL VEEDU, KAITHATHEKKU, CHETTIKULANGARA P.O., MAVELIKKARA TALUK, ALAPPUZHA-690106. 22 ADDL. R22. RAVIKUMAR K., S/O. LATE KRISHNA PILLAI, SURABHI, CHETTIKULANGARA P.O., MAVELIKKARA TALUK, ALAPPUZHA-690106.** **(ADDITIONAL R20 TO R22 ARE IMPLEADED AS PER ORDER DATED 08/07/2019 IN IA 2/2019)** **R1 BY SRI.K.SASIKUMAR, SC, TDB R3 BY ADV. SRI.CHERIAN GEE VARGHESE R3 BY ADV. SRI.P.HARIDAS R3 BY ADV. SRI.BIJU HARIHARAN R3 BY ADV. SRI.R.B.BALACHANDRAN R3 BY ADV. SRI.RENJI GEORGE CHERIAN R3 BY ADV. SRI.P.C.SHIJIN R7-8, R11 BY ADV. R.RAJASEKHARAN PILLAI R7-8, R11 BY ADV. SMT.SABINA JAYAN R16 BY SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL, SC,CHETTIKULANGARA GRAMA PANCHAYAT R20 BY ADV. M.RAMESH CHANDER (SR.) R20 BY ADV. SMT.K.A.SANJEETHA R20 BY ADV. SRI.BALU TOM R20 BY ADV. SMT.DIVYA S KUMAR R20 BY ADV. SHRI. BEJOY JOSEPH P.J.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).5467/2019 4 ## **JUDGMENT** _Ravikumar, J._ The petitioners, who claim to be the members of the Executive Committee of Kaithathekke Hyndava Karayogam, the fifth respondent, which is a registered organisation of Hindus and devotees of Chettikulangara temple under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, filed this writ petition seeking the following reliefs:- - a. direct the 4[th] respondent to consider Exhibit P-2 and conduct a fresh election to the 5[th] respondent executive committee by the issue of a writ of mandamus or such other writ or order or direction. - b. direct the 4[th] respondent to interfere in the dispute that is existing in the 5[th] respondent considering the law and order situation that may arise in the ensuing 'Kettukazcha Ulsavaom' at Chettikulangara Devaswom Temple by the issue of a writ of mandamus or such other writ or order or direction. - c. direct the 1[st] and 16[th] respondent not to transfer the annual grant to respondents 8 to 15 by the issue of a writ of mandamus or such order or direction. - d. restrain respondents 8 to 15 from making public collection from the devotees in the name of the 5[th] respondent by the issue of an appropriate W.P.(C).5467/2019 5 writ or order or direction. 2. The contention of the petitioners is that the fifth respondent is a registered society governed by Ext.P1 bye-law. Going by Ext.P1, the general body is bound to elect 31 member Executive Committee and in turn, the Committee has to elect its office bearers. They took such a contention, evidently, to canvass the position that the election which was allegedly conducted on 13.1.2019 cannot be said to be an election conducted in terms of Ext.P1 and therefore, the election of respondents 8 to 15 is illegal and liable to be interfered with. In short, the right of respondents 8 to 15 to continue as office bearers of the fifth respondent society based on the election conducted on 13.1.2019 is under challenge. 3. We think that we need not consider the merits of the challenge against election conducted on 13.1.2019 in view of the interim order passed by this Court on 5.3.2019. A scanning of the said order dated 5.3.2019 would reveal that certain issues were decided finally as per the said order. At the outset, it is apropos to state that though certain rights of the parties and certain other issues were decided finally as per order dated 5.3.2019, none of the parties to the writ petition challenged the said order. In such circumstances, we will briefly state the matters which are W.P.(C).5467/2019 6 substantially and finally decided as per the said order dated 5.3.2019. It is held thereunder that though the Board has issued circular forming Temple Advisory Committee in all the temples under the Devaswom, so far as Chettikulangara Devaswom is concerned, no Temple Advisory Committee has been constituted and the third respondent viz., Sreedevi Vilasom Hindumatha Convention is functioning as the Temple Advisory Committee for all purposes. The fifth respondent is one of the 13 constituents of the third respondent viz., Sreedevi Vilasom Hindumatha Convention which functions as the Temple Advisory Committee of Chettikulangara Devi Temple. Members elected from 13 'karas' are the committee members of the convention. That apart, it is held therein that Ext.P1 is the bye law of the fifth respondent. Both the rival groups claimed to be the office bearers of the fifth respondent. As per order dated 5.3.2019, this Court held taking note of the aforesaid dispute that it is only desirable to take a pragmatic approach to decide the impasse. As a matter of fact, before going to that question, the Division Bench also considered the question whether the petitioners should be relegated to approach the civil court for resolution of the disputes involved in the writ petition. A perusal of paragraph 10 of the said order dated 5.3.2019 W.P.(C).5467/2019 7 would reveal that the Division Bench pointedly considered that question and answered it in the negative. In the context of the contentions, it is only relevant to extract paragraph 10 of the said interim order. It reads thus:- 10. Section 31 of the Travancore Cochin Hindu Religious Institution Act, 1950 enjoins a duty on the Board to arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. In other words, the Board has duty to enforce the usage prevalent in the temple. The Board has no right to alter or modify the same. It is settled principle of law that supervision and control of Hindu Religious and Charitable Institutions are required to be protected and safeguarded to the extent possible and it is the duty of the constitutional courts to protect and safeguard the interest of the religious and charitable institutions. This Court has the power to interfere when there is inaction on the part of the Board and the importance of protecting the interest of the deity. In view of the settled legal position, this Court has power to interfere in appropriate cases to set the matters right instead of relegating the case to the civil court. Since a comprehensive civil suit will delay the solution, a deadlock will be created for conducting the 'Kettukazcha' festival in this year and the interest of the deity and genuine devotees will suffer. 4. The afore extracted text of the interim order viz., paragraph 10 would reveal that after considering the issues, this Court held that the W.P.(C).5467/2019 8 petitioners need not be relegated to the civil court. 5. On the question of the validity of the election allegedly held on 13.1.2019, taking note of the contentions raised before the Division Bench, it was held that in the light of the rival contentions, a pragmatic approach had to be adopted to resolve the impasse and it is in view of such conclusions arrived at by the Division Bench on 5.3.2019 that further directions were issued. Evidently, the Division Bench also held that since the basic issues revolve around the conduct of election, the panel system adopted by raising hands was not correct and it could not be held that office bearers of the fifth respondent were elected in accordance with Ext.P1. Consequently, it was also held that the election allegedly held on 13.1.2019 could not be said to be one conducted in accordance with Ext.P1 and the election of office bearers were also not legal and correct. It is after arriving at such findings and conclusions that the Division Bench held that it is only desirable to conduct fresh election under the supervision of this Court as stipulated under Ext.P1. Based on such a conclusion, Adv.Sri.P.Ramachandran who is the Amicus Curiae to the learned Ombudsman for Travancore and Cochin Devaswom Boards was appointed as the Special Officer to conduct election to the managing W.P.(C).5467/2019 9 committee of the 5[th] respondent. The Special Officer was directed to conduct election to the fifth respondent within two months from the date of communication of the order dated 5.3.2019 by verifying the voters list and calling for the intending candidates to file their nomination papers, in accordance with law. In the matter of administration of the fifth respondent in the interregnum, this Court ordered thus:- “Until the elected members take charge, the office bearers who have been functioning as office bearers by virtue of the election held on 13.1.2019, are allowed to function as ad hoc office bearers and during that period, their duties as office bearers of the fifth respondent including accounts of the fifth respondent shall be regulated by the Special Officer. After the election, in case the existing office bearers are elected again, they can continue as office bearers. Before conducting the election, the Special Officer appointed to conduct the election will decide the eligibility of voters included in the list by taking appropriate decision as to whether the names are rightly included in the electoral list” 6. It is thus obvious from the interim order dated 5.3.2019 that regarding the question whether the writ petition is to be maintained or whether the petitioners should be relegated to civil court, this Court held that going by the settled position that supervision and control of Hindu Religious and Charitable Institutions are required to be protected and W.P.(C).5467/2019 10 safeguarded to the extent possible and it is the duty of the constitutional courts to protect and safeguard the interest of the religious and charitable institutions and therefore, this Court got power to interfere when there is inaction on the part of the Board and also for protecting the interest of the deity. Ultimately, it was found that in view of the said settled legal position, this Court got power to interfere in appropriate cases to set the matters right instead of relegating cases to the civil court. That apart, it was held that a comprehensive civil suit would delay the solution, a solution to resolve the impasse, referred hereinbefore and compelling the parties to resort to such a remedy would create a deadlock for conducting 'Kettukazhcha' festival during the relevant year. This Court held the writ petition as maintainable and passed the aforesaid order. In such circumstances, we are of the view that regarding the maintainability of the writ petition, the issue has already become final and therefore, we decline to go into that question though the learned counsel for respondents 7, 8 and 11 raised such a question. As noticed hereinbefore, in that context, it is relevant to note that none of the parties including respondents 7, 8 and 11 challenged the order dated 5.3.2019 though in respect of the said issue the order is final in nature. W.P.(C).5467/2019 11 7. Regarding the validity of the election conducted on 13.1.2019, the interim order would reveal that virtually a final adjudication was made and this Court held as per the interim order dated 5.3.2019 that the election conducted on 13.1.2019 is not one conducted in accordance with Ext.P1 and therefore, the election of the office bearers based on the election held on 13.1.2019 was also held as not correct. After holding so, this Court as per the interim order dated 5.3.2019 directed for conducting fresh election to the fifth respondent under the direction and supervision of this Court in terms of Ext.P1. It is a fact that pursuant to the passing of interim order dated 5.3.2019, Adv.Sri.P.Ramachandran was appointed as the Special Officer to conduct election to the fifth respondent on 9.6.2019. In such circumstances, we are of the considered view that the scope of this writ petition in view of such developments is only to look into the correctness of the election conducted. In other words, whether election was conducted properly or not, after the appointment by the Special Officer. While the petitioners contend that the Special Officer conducted the election in accordance with Ext.P1, respondents 7, 8 and 11 would contend that election was not conducted in accordance with Ext.P1. They alleged bias on the part of the Special Officer in the matter W.P.(C).5467/2019 12 of conduct of election. 8. In the light of the aforesaid discussions, we are confining consideration of this writ petition as to whether election held on 9.6.2019 has to be held as invalid or not? 9. The question whether Ext.P1 is a bye-law or whether it is an agreement need not be gone into in the light of the admitted position that all the parties in unison contend that election is being held to the fifth respondent hitherto in terms of Ext.P1. Going by Ext.P1, to earn eligibility to become a member of the fifth respondent, one should be an adult, insane and permanent resident of Kaithathekkukara and any Hindu belonging to Hindu religion. At the same time, it is relevant to note that going by Ext.P1, irrespective of persons who acquired membership in the 5[th] respondent, from a particular family, only one person can vote in the election to the executive committee of the fifth respondent. Pursuant to the direction of this Court, Ext.R20(a) draft voters list was published. Evidently, objections were called for and after considering the objections, final voters list was published viz., Ext.R20(b). It was thereafter that election was conducted on 9.6.2019 by the Special Officer. As noticed W.P.(C).5467/2019 13 hereinbefore, the petitioners would contend that the said election held on 9.6.2019 is legal and was conducted strictly in accordance with Ext.P1 and the respondents 7, 8 and 11 would contend otherwise. They raised various contentions in a bid to establish that election conducted on 9.6.2019 was not in accordance with Ext.P1 and therefore, it is irregular and invites interference. Before adverting to the said contentions raised on behalf of respondents 7, 8 and 11, it is only proper to note that the Special Officer appointed by this Court has submitted three reports before this Court. The first report was filed on 4.4.2019 and obviously, it was filed before the election. After the election, he filed the second report on 19.6.2019 and another report on 13.8.2019. Respondents 7, 8 and 11 filed objection against the second report filed by the Special Officer dated 19.6.2019 on 20.6.2019. Though the petitioner filed an objection to the third report dated 6.8.2019, admittedly, it is only pertaining to the accounts produced before the Special Officer by the ad hoc committee. 10. We will now refer to the objections filed by respondents 7, 8 and 11 against the second report filed on 19.6.2019 as they are the actual objections of the said respondents against election held on 9.6.2019. W.P.(C).5467/2019 14 11. In the objection to the second report filed by the Special Officer, respondents 7, 8 and 11 would contend that the voters were permitted to vote only on the instruction of the petitioners and their companions. In paragraph 2 of the said objection, the aspects that violated the normal norms of election are highlighted as hereunder:- “(a) 7 persons included in the Final Voters List have not been permitted to vote. (b) Candidates seeking election included in the panel of petitioners have been elected who are not members of the 'kara'. This illegality occurred because of the scrutiny of the nomination was done in camera and not in the open before the rival panel or the representatives. This by itself would violate the entire election. The scrutiny should have been done in presence of the candidates who have been proposed to contest. (c) Though the Special Officer has promised to distribute identity cards to the voters with photographs the same has been overlooked because of the fact that the scrutiny of the panel of the candidates has not done the following persons who are not members of the 'Kaitha Thekku Karayogam' happened to be elected and that by itself is sufficient to declare that election to the 'Karayogam' is null and void. W.P.(C).5467/2019 15 (d) the persons whose names appeared in the voters list have been kept confined in their houses and permitted their relative to vote for B panel. Following are the glaring examples and details of such manipulation:- “Though we have pointed it at the venue itself, the same was ignored amidst the vast police presence that” 12. Obviously, names of 36 persons have been given in the objection to the second report who according to respondents 7, 8 and 11 were confined in their houses and thereby dis-franchised. A perusal of the objection would reveal that according to the said respondents, those persons included in 'B' panel are not members of the 'Karayogam' and still they got elected. As noticed hereinbefore, respondents 7, 8 and 11 have also taken up the contention that the above writ petition is not maintainable and the petitioners are to be relegated to civil court. In this regard, we have already held that respondents 7, 8 and 11 have virtually allowed the interim order dated 05.03.2019 to become final though thereunder, this Court specifically repelled their contention, rather, objection regarding its maintainability and held that the petitioners need not be relegated to civil court in terms of the settled position of law that supervision and control of Hindu religious and charitable institutions are W.P.(C).5467/2019 16 required to be protected and safeguarded to the extent possible and it is the duty of the court to protect and safeguard the interest of religious and charitable institutions. Obviously, after holding thus, this Court declined to accept the objection raised by the said respondents regarding the maintainability of the writ petition and held that in the light of the settled position, this Court got the power to interfere in appropriate cases to settle the matters right instead of relegating the case to civil court. It is also relevant to note that as per the said interim order, the election held on 13.01.2019 in which they were elected as the office bearers of the 5[th] respondent was held as illegal and it is based on such findings that this Court ordered fresh election and in that regard, Sri.P.Ramachandran was appointed as Special Officer to conduct the election. Despite such specific findings of this Court having the character of a final order in regard to the question of maintainability and legality of the election held on 13.01.2019, respondents 7, 8 and 11, for the reasons best known to them, did not take up the matter further. Shortly stated, having allowed the interim order dated 5.3.2019 carrying such specific findings to become final, the said respondents cannot legally mount challenge against the maintainability as also the directions issued thereunder to conduct the W.P.(C).5467/2019 17 election and also the very appointment of Adv.P.Ramachandran as Special Officer to conduct the election. 13. In the aforesaid circumstances, the question to be considered is whether other objection raised by respondents 7, 8 and 11 merits consideration. As regards objection (a) given in paragraph 2 of the objection to the report filed by respondents 7, 8 and 11, it is to be stated that it is too vague. What is stated therein by way of objection is that seven persons included in the Final Voters List have not been permitted to vote. The question is who are they? There is absolute absence of any pleadings in that regard in the objection. In the light of the said position, the said objection cannot be entertained and gone into. In objection (b), it is stated that certain candidates who contested the election and consequently got elected are not members of the 'Kara'. In the objection the said respondents named three persons belonging to that category. They are :- |189|694|Sujeeshkumar Pallarimangalam| |---|---|---| |389|907|Pramodkumar Akkaratharayil| |449|968|PradeepKottkattupadeettathil| 14. A perusal of the said objection raised by respondents 7, 8, and W.P.(C).5467/2019 18 11 itself would reveal that their candidature was accepted by the Special Officer and in the election they got elected. The contention of the respondents Nos.7, 8 and 11 is that those elected persons are not members of the 'Kara'. Going by the nature of the said contention, we have no hesitation to hold that the question whether they are members of the 'Kara' and if not, whether they got any right to contest the election and whether their election is valid are matters which cannot be gone into in the absence of those persons in the array of parties. Any adjudication on that issue would undoubtedly affect their right to continue as members of the Executive Committee of the 5[th] respondent. In such circumstances, we are not persuaded to consider that question in view of the fact that despite raising such contentions respondents 7, 8 and 11 have not taken steps appropriately to challenge their election independently or they have not produced any material having cogent evidentiary value to substantiate their contentions. In such circumstances, the said question also cannot be looked into in this proceedings. 15. A scanning of objection (c) would reveal that the said objection is virtually related to objection (b). For the same reasons, the objection thereunder regarding the election of persons to the Executive Committee W.P.(C).5467/2019 19 of the 5[th] respondent on the ground of not being members of 'Kara' cannot be looked into. Regarding that part of the objection with respect to scrutiny of panel of candidates, it is an admitted position that Ext.P1 did not contain any specific provision dealing with the same. That apart, no material is before us to arrive at any conclusion that the Special Officer has conducted the scrutiny of panel of candidates in a manner which was totally against any provision regulating the election to the 5[th] respondent. In the absence of anything to indicate that the Special Officer had committed an absolute illegality in the said matter or misconducted himself, we are of the view that on that ground also, the election held on 09.06.2019 cannot be interfered with. 16. We will now consider, the last objection raised by respondents 7, 8 and 11. It is their contention that persons whose names appeared in the voters list were kept confined in their houses and their relatives were permitted to vote for 'B' panel. As noticed hereinbefore, respondents 7, 8 and 11 enlisted about 36 persons under objection (d) and according to them, those are the persons who were kept confined in their houses and in their cases only the relatives were permitted to vote, that too for 'B' panel. The learned counsel appearing for the petitioners brought to our attention W.P.(C).5467/2019 20 one fact which itself would reveal the casual manner in which such a list was prepared by respondents 7, 8 and 11. It is submitted that a person by name Sasi was included in the said list at Serial No.451 with receipt No.970 and he is none other than the first petitioner in the writ petition. The very case of the petitioners including the aforesaid Sasi is that election was conducted in accordance with Ext.P1 and at any rate, he got no case that he was confined in the house by his wife though respondents 7, 8 and 11 got such a case. The learned counsel for the petitioners would also point out that even the addresses of the persons and the details of such persons given by respondents 7, 8 and 11 in the objection would reveal the hollowness of the said contention and to drive home the point, the learned counsel for the petitioners brought to our notice the following instances:- |Sl.N<br>o|Receip<br>t No.|Name|Proxy| |---|---|---|---| |129|632|Harikumar, S/o.Sreedharan Pillai,<br>59 Kedaram(gulf)|Wife| |130|633|Venugopal, 60 S/o.Thankappan<br>(GULF)Chiathram|WIFE| |211|717|Radhakrishnan (GULF) 48<br>S/o.Divakaran,Krishnanilayam|Wife| |212|718|Krishnan Nair, 52 Gulf<br>S/o.Kuttappan Nair,Kochuveettil|Wife| W.P.(C).5467/2019 21 |215|721|Anilkumar, gulf 48 S/o.Gopinatha<br>Pillai,Puthusseril thekkethil|Wife| |---|---|---|---| |218|724|Asokkumar<br>GULF<br>49<br>S/o.Viswambara<br>Paniker,<br>Anjanam|Wife| |319|828|Prabhakaran Nair, 58 GULF<br>Vishnupryam|wife| The said list would also reveal that person with Serial Nos.209 and 290 are no more and it is not discernible from the pleadings in the objection as to whether their death occurred prior to 09.06.2019 or thereafter. That apart, none of those persons whose names were given approached this Court or any of the authorities with any such complaint as has been alleged by respondents 7, 8 and 11. In the said circumstances, we do not find any merit in the objection raised by respondents 7, 8 and 11 that election was not conducted properly by the Special Officer appointed by this Court on 09.06.2019 and therefore, it cannot be upheld. 17. We will now refer to the objection raised by respondents 20, 21 and 22. The learned counsel appearing for respondents 20, 21 and 22 would submit that names of the said respondents were included in Ext.R20(a) Draft Voters List and thereafter, their names were also included in Ext.R20(b) Final Voters List. The contention is that they were W.P.(C).5467/2019 22 not permitted to cast their votes in the election conducted on 09.06.2019. In the context of the contention, it is relevant to refer to Report No.2 submitted by the Special Officer dated 19.06.2019. It is stated in paragraph 5 thereunder that election was started at 9 a.m on 09.06.2019 and Sri.P.K.Sajeev, an advocate practicing before the High Court of Kerala, Mr.Aneesh.A.R, the then Deputy Thahsildar (Election), Mavelikkara and one Mr.Binu the then Village Officer, Kannamangalm Village had assisted him in the matter of conduct of the election. That apart, it is stated therein that two persons each for the two panels were also allowed to sit inside the booth as agents for the panel of candidates. It is further stated therein the total number of votes polled was 411 and counting of votes was started at 2.30 p.m on the same day. Panel 'A' got 188 votes and Panel 'B' got 219 votes. Thus, from the report No.2 filed by the Special Officer, it is evident that besides the Special Officer, the then Deputy Thahsildar (Election) and the then Village officer, Kannamangalam Village were also there at the time of conduct of election and they were assisting the Special Officer. That apart, two persons each for the two panels, were allowed to sit inside the booth and they were functioning as the agents of the panel. In such circumstances, the fairness W.P.(C).5467/2019 23 with which the election was conducted cannot be doubted in the absence of any concrete evidence to that effect. 18. Besides raising factual contentions, the learned Senior Counsel for respondent Nos.20, 21 and 22 raised a contention that the interim order passed by this Court on 05.03.2019 is only dependant-order. To buttress the said contention, the learned senior counsel relied on a Single Bench decision of this Court in **Kunhamma v. Rosakkutty** (CRP No.1473 of 1996). A perusal of **Kunhamma** 's case would reveal that the said decision was rendered relying on the decision of the Hon'ble Apex Court in **G.Ramegowda and others v. The Special Land Acquisition Officer, Bangalore [AIR 1988 SC 897].** In paragraph 5 therein, it was held thus:- “We might, perhaps, deal with the latter submission of Shri. Veerappa first. The fact that the main appeals themselves, in the meanwhile, disposed of finally on the merits by the High Court would not by itself detract from and bar the consideration of the correctness of the order condoning the delays. This is an instance of what are called 'dependantorders' and if the order excusing the delays is itself set aside in these appeals, the further exercise, made in the meanwhile, by the High Court finally disposing of the appeals, would be W.P.(C).5467/2019 24 rendered nugatory. The submission of Shri.Veerappa is, therefore, insubstantial.” 19. The question of applicability of the said decision to the facts of the case on hand is a matter to be looked into. There cannot be any doubt with respect to the position that disposal of the impugned appeals finally on merits by itself would not detract from and bar the consideration of the correctness of the order condoning the delay. If the order condoning the delay is set aside at a later point of time by the Appellate Court, necessarily, the order in the main appeal would become nugatory. We have already dealt with the interim order passed by a Division Bench of this Court in this case. We have no hesitation to hold that the interim order passed by this Court on 05.03.2019 cannot be said to be a dependant-order in respect of those matters and aspects which were virtually decided finally as per that order. True that, respondents 20, 21, and 22 filed applications for getting themselves impleaded only on 25.06.2019. But, the fact is that, subsequent to their impleadment in the writ petition as additional respondents, at no point of time, they took steps to redress grievance, if any, against the said order dated 05.03.2019, either by approaching the Hon'ble Apex Court or by filing a review W.P.(C).5467/2019 25 petition. That apart, the very grievance of the said petitioners itself would reveal that their grievance is with respect to the denial to participate in the election conducted on the strength of the interim order dated 05.03.2019. In respect of respondents 20 to 22, they did not produce any material before this Court to show that they are permanently residing within the jurisdiction or within 'Kaitha Thekku Kara'. Obvisouly, they are only relying on Exts.R20(a) and R20(b). Their case is that they were deprived of opportunity to cast their votes in the election conducted on 09.06.2019. In that context, it is relevant to note that the names of those three persons viz., additional respondents 20 to 22 are included in the list of persons said to have been locked in their houses on the date of election and in whose case proxy votes were cast, according to respondents 7, 8 and 11. Addresses of respondents 20 to 22 given thereunder by respondents 7, 8 and 11 would reveal that they are not residing within the limits of 'Kaitha Thekku Kara'. At this juncture, the Special Officer submitted that those persons who turned up at the booth to cast vote along with address proof revealing that they are permanent residents of 'Kaitha Thekku Kara' alone were permitted to cast their votes. Then, the question is whether the mere inclusion of their names in Exts.R20(a) and R20(b) by itself would confer W.P.(C).5467/2019 26 any indefeasible right to cast vote in the said election. In that context, it is relevant to note that a bare perusal of Exts.R20(a) and R20(b) would reveal that names and house names alone of persons are included in the said list. True that, in such circumstances, it should be presumed that persons whose names were given thereunder should be permanent residents of 'Kaitha Thekku Kara' in order to earn voting right and it is to ensure that the Special Officer insisted for address proof. In that context, it is also relevant to note that going by Ext.R20(b), right to vote is available to the family and it is not confined to any particular individual. We are fortified in our view by the recital in Exts.P1 and R20(b). In Ext.P1, which admittedly governs the election to the 5[th] respondent, it is stated as clause 5.b thus:- “അ�ഗങൾ എത ഉണ�യ�ല� ഒര വ�ട�ൽ ന�ന� ഒര വ�ട�നന പത�ന�ധ�കര�ച� ഒര�ള�ന മ�തനമ വവ�ട ന%യവ�ൻ അവക�ശ� ഉണ�യ�ര�കകയള.” Obviously in Ext.R20(b), in terms of the said clause in Ext.P1, it is stated thus:- "ബ-വ.� പക�ര� ത�ന/ പട�കയ�ൽ പറയനവര�ൽ ഹ�നകൾക മ�ത� ഒര വ�ട�ൽ ന�ന� ഒര വ�ട�നന പത�ന�ധ�കര�ച ഒര�ള�ന മ�തവമ . വവ�ട ന%യവ�ൻ അവക�ശമണ�യ�ര�കകയള വവ�ടന%യ�ൻ വരനവർ ഈ വവ�ടർ പട�കയ�ൽ ക�ണ�കന വ�ട വപരള സർക�ർ അ�ഗ�കത ത�ര�ചറ�യൽ ക�ർഡ�ന@ ( ആധ�ർ ക�ർഡ, പ�വB�ർട, ബCവ��ഗ ബ.സൻസ, ഇ.കൻ ഐഡ�ക�ർഡ, വG�വട� പത�ച W.P.(C).5467/2019 27 വറഷൻ ക�ർഡ . ) മത.�യവയനട ഒറ�ജ�നൽ കട� നക�ണവവരണത�ണ ഒര വ�ട�ൽ ന�ന തനന ഒന�ൽ കടതൽ ആളകൾ വവ�ട ന%യ�ൻ വന എന ആവകപ� വലതമനണങ�ൽ ആയത വവ�ട ന%യനത�ന മമ റ�വടണ��ഗ ഓG�സനറ അറ�യ�വകണത� അങനന വന�ൽ ആദT� വവ�ട ന%യ ആള� രണ�മത വവ�ട ന%യ�ൻ വരന ആള� വTതTസ വ�ടകനളയ�ണ പത�ന�ധ�കര�കനനതന നതള�യ�വകണ -�ദTത രണ�മത വവ�ട ന%യ�ൻ വന ആൾക�ണ. വവ�ട ന%യ�ൻ വരനവർ ഈ വവ�ടർ പട�കയ�ന. അവരനട സ�ര�യൽ നമറ� രശ�ത� നമറ� കറ�ച നക�ണ വവരണത�ണ�.” In the light of the aforesaid recitals in Exts.P1 and R20(b), what is discernible is that though there is no rider with respect to the number of persons from any family in the matter of acquisition of membership in the 5[th] respondent, the right to vote is confined to one person in each family and in fact the right is that of the family and not that of an individual member of the family. This fact is not at all disputed by the parties. There is nothing in Ext.P1, which provides that the right to vote is confined only to the persons whose name is included in the voters list. A close scrutiny of Ext.R20(b) would reveal that in the light of the fact that only one person from one family alone is entitled to exercise the vote one aspect has to be taken note of. The names of families have been mentioned in Ext.R20(b). It would reveal that there are many instances where two or more families got the same house name. Perhaps it is in such circumstances, to identify the family concerned who can cast vote that the W.P.(C).5467/2019 28 name of one of the members of the said family is mentioned in Ext.R20(b). It is also relevant to note that though in Ext.R20(b), it is stated that persons who turned up to cast their votes should bring Aadhaar Card, Passport, Driving Licence, Election identity Card or Ration Card wherein photo affixed showing that the person concerned belongs to the family which is having the right to vote in the election, going by Ext.R20(b). That apart, we have already taken note of the fact that though respondents 20 to 22 raised a contention that they were deprived of opportunity to cast their votes despite being included in Ext.R20(b) list, they did not produce any material before this Court that they are permanent residents of 'Kaithathekkukara' and even if they are residents of the said 'Kara', none representing their families was permitted to cast vote. 20. We have already taken note of the fact that going by the pleadings of respondents 7, 8 and 11 in their objection to Report No.2, additional respondents 20 to 22 are not residing in Kaithathekkukara. What is stated therein is that additional respondents 20 to 22 are also among the persons, according to respondents 7, 8 and 11, who are confined in their houses with a view to deprive the right to vote and in W.P.(C).5467/2019 29 whose case their proxies cast votes. Though the pleadings in the said objection filed by respondents 7, 8 and 11 are received by additional respondents 20 to 22, they took no pains to controvert such contention and the case of respondents 20 to 22 is that though they went to the venue of election to cast their votes, they were denied the said right. At any rate, the counter affidavit of additional respondents 20 to 22 would not support the case of respondents 7, 8 and 11 that additional respondents 20 to 22 were also confined in their homes and their proxies cast votes. Taking into account the nature of the objections and the factual position obtained as above, we are of the view that there is absolutely no reason to presume and hold that the Special Officer appointed by this Court conducted election on 09.06.2019 in a biased manner and not in accordance with Ext.P1. In such circumstances, we are not persuaded to uphold the objections raised by the respondents and therefore, we cannot uphold the contention that the election was not conducted on 9.6.2019 by the Special Officer appointed by this Court, in tune with Ext.P1, which is the provision governing the election to the 5[th] respondent. In such circumstances, the action on the part of the Special Officer in declaring the result regarding the election of 31 Executive Members or Members of W.P.(C).5467/2019 30 the Executive Committee and the consequential election of the office bearers of the 5[th] respondent as specifically mentioned in Report No.2, are held as valid. In the light of the interim order dated 05.03.2019, the persons who got elected in the election are entitled to assume office. In such circumstances, those persons who were elected as Executive Members and also the persons who were elected as office bearers of the 5[th] respondent are permitted to assume office and function as office bearers of the 5[th] respondent. 21. We have already taken note of the fact that the petitioners raised an objection with respect to the accounts made available before the Special Officer by the Adhoc Committee. We are of the view that such accounts are to be placed before the General Body of the 5[th] respondent and it is for the General Body to take a decision regarding audit and also for taking further action, if required, based on such audit. Obviously, the Special Officer was given only an interim payment of 50,000/-. It was₹ given specifically to enable him to meet expenses for holding the election and expenses for his journey etc. In the second report filed by the Special Officer, it is stated that for the purpose of conducting election and to visit the place in connection with the election, he had incurred 45,908/-. In₹ W.P.(C).5467/2019 31 such circumstances, the Special Officer shall be paid an amount of ₹1,50,000/- by the 5th respondent within a period of one month from the date of receipt of copy of this judgment, towards remuneration and reimbursement of expenses incurred. The official records kept by respondents 8 to 15 in their capacity as members of the Adhoc Committee shall be handed over to the new office bearers, on their assumption of office. Writ petition is allowed as above. **Sd/C.T.RAVIKUMAR JUDGE Sd/N.NAGARESH JUDGE** W.P.(C).5467/2019 32 ## **APPENDIX** **PETITIONERS' EXHIBITS: EXHIBIT P1 COPY OF THE BYLAW EXHIBIT P2 COPY OF THE COMPLAINT EXHIBIT P3 COPY OF THE RECEIPT ISSUED BY THE RDO EXHIBIT P4 COPY OF THE NOTICE ANNEXURE I TRUE COPY OF THE DRAFT VOTERS LIST. EXHIBIT P5 COPY OF THE TAX RECEIPT. EXHIBIT P6 COPY OF THE RELEVANT PAGES OF VOTERS LIST. EXHIBIT P7 COPY OF THE RELEVANT PAGES OF RATION CARD. EXHIBIT P8 COPY OF THE RELEVANT PAGES OF VOTERS LIST. EXHIBIT P9 COPY OF THE LETTER. EXHIBIT P10 COPY OF THE LETTER.** **RESPONDENTS' EXHIBITS: EXHIBIT R7 A TRUE COPY OF THE LIST OF MEMBERS. EXHIBIT R7 B TRUE COPY OF THE NOTICE DATED 2.1.2019 ALONG WITH THE ACKNOWLEDGMENT OF THE MEMBERS. EXHIBIT R7 C TRUE COPY OF THE LIST OF PERSONS PRESENT AT THE ELECTION VENUE EXHIBIT R7 D TRUE COPY OF THE ORIGINAL OF THE PANEL SUBMITTED BY THE PETITIONERS AND OTHERS. EXHIBIT R7 E TRUE COPY OF THE ORIGINAL OF THE FIRST PANEL AND THE ELECTED OFFICE BEARERS.** W.P.(C).5467/2019 33 **EXHIBIT R7 F TRUE COPY OF THE NOTICE DATED 21.2.2019 ISSUED TO THE NEW OFFICE BEARERS. EXHIBIT R7 G TRUE COPY OF THE NOTICE DATED 21.2.2019 TO THE NEW OFFICE BEARERS. EXHIBIT R7 H TRUE COPY OF THE MINUTES OF THE ELECTION EXHIBIT R7 I TRUE COPY OF THE REPLY TO THE NOTICE DATED. EXHIBIT R20(a) PHOTOSTAT COPY OF THE DRAFT VOTERS LIST EXHIBIT R20(B) PHOTOSTAT COPY OF THE FINAL VOTERS LIST.** **spc/dlk/aks**