V. Krishnan v. Deputy Director, Department of Dairy Development, Office of the Deputy Director, Dairy Development Department, Palakkad; The Quality Control Officer/Electoral Officer (Quality Control), Department of Dairy Development, Palakkad District; The Dairy Extension Officer, Kuzhalmannam/Returning Officer, Office of the Dairy Extension Officer, Kuzhalmannam, Palakkad District; The State Co-operative Election Commissioner, Thiruvananthapuram; Kalapetty KSHEEROLPADAKA SAHAKARANA SANGAM Ltd., Perumkunam Post, Kalapetty; Addl.R6 Manikandan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940** ## **WP(C).No. 42571 of 2018** ## **PETITIONER:** **V.KRISHNAN, AGED 63 YEARS, S/O. VEEMBAN, NOLLIKODE, CHITHALI POST, KUZHALMANNAM, PALAKKAD DISTRICT-678702. BY ADV. SRI.RAJESH SIVARAMANKUTTY** ## **RESPONDENTS:** - **1 THE DEPUTY DIRECTOR, DEPARTMENT OF DAIRY DEVELOPMENT, OFFICE OF THE DEPUTY DIRECTOR, DAIRY DEVELOPMENT DEPARTMENT, CIVIL STATION, PALAKKAD-678001.** - **2 THE QUALITY CONTROL OFFICER/ELECTORAL OFFICER, (QUALITY CONTROL), DEPARTMENT OF DAIRY DEVELOPMENT, PALAKKAD DISTRICT-678001.** - **3 THE DAIRY EXTENSION OFFICER, KUZHALMANNAM/RETURNING OFFICER, OFFICE OF THE DAIRY EXTENSION OFFICER, KUZHALMANNAM, PALAKKAD DISTRICT-678702.** - **4 THE STATE CO-OPERATIVE ELECTION COMMISSIONER, OFFICE OF THE STATE CO-OPERATIVE ELECTION COMMISSIONER, THIRUVANANTHAPURAM-695001** - **5 KALAPETTY KSHEEROLPADAKA SAHAKARANA SANGAM LTD.NO. P-528(D)(APCOS), PERUMKUNNAM POST, KALAPETTY BY ITS SECRETARY, PALAKKAD DISTRICT-678702.** - **6 ADDL.R6 MANIKANDAN, S/O.CHAMUNNI, AGED 52 YEARS, NADUVASSERY KALAM, KALAPPETTY P.O. COYALMANNAM, PALAKKAD-678001. (ADDL.R6 IMPLEADED VIDE ORDER DATED 10/01/2019 IN IA.NO.01/2019) BY ADV. SRI.K.K.RAJEEV SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WP(C)42571 OF 2018 ## **JUDGMENT** The petitioner, who is a candidate in the election to the Managing Committee of the 5[th] respondent Society, which is a Society registered under the Kerala Co-operative Societies Act, 1969 and the Rules made thereunder, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 communication dated 24.12.2018 issued by the 2[nd] respondent Electoral Officer, whereby the request made by the petitioner to print the name of the contesting candidates in different inks and that of the panel contested by the petitioner and 8 others in red colour in the election scheduled to be held on 05.01.2019 to the Managing Committee of the 5[th] respondent Society, stands rejected. The petitioner has also sought for a writ of mandamus commanding the respondents to print the name of contesting candidates in different inks and that of the colour red for the panel contested by the petitioner and 8 others to the elections of the Managing Committee of the 5[th] respondent; a writ of mandamus commanding the respondents to hold the elections to the Managing Committee of the 5[th] respondent until the ballot paper in different inks and as sought in Ext.P3 3 WP(C)42571 OF 2018 is complied by the respondents; and a declaration that the word 'uniform' occurring in Rule 35A(6)(n)(viii) of the Kerala Co-operative Societies Rules is unconstitutional and unenforceable, being in violation of the fundamental rights of the petitioner. 2. On 28.12.2018, when this writ petition came up for admission, this Court passed the following order; “The petitioner seeks the relief in the light of Ext.P5 judgment. It is submitted by the learned Government Pleader that Ext.P5 order is challenged in writ appeal. In the light of Ext.P5, interim order as prayed for is allowed for 10 days.” 3. On 07.01.2019, when this writ petition came up for consideration, the learned Senior Government Pleader took notice on admission for respondents 1 to 4. Urgent notice on admission by special messenger was ordered to the 5[th] respondent, returnable by 10.01.2019. 4. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for respondents 1 to 4 and also the learned counsel for the 6[th] respondent. Despite service of notice, none appears for the 5[th] respondent. 5. The learned Senior Government Pleader, on WP(C)42571 OF 2018 4 instructions from the 2[nd] respondent Electoral Officer, would submit that the petitioner has not chosen to submit Ext.P3 representation dated 24.12.2018 before the 2[nd] respondent Electoral Officer. However, on receipt of Ext.P3 representation, the 1[st] respondent marked a copy of the same to the 2[nd] respondent Electoral Officer, based on which the 2[nd] respondent issued Ext.P4 communication. 6. Today, when this case is taken up for consideration, the learned Senior Government Pleader would place reliance on the judgment of the Division Bench of this Court dated 20.02.2019 in W.A.No.1963 of 2018, whereby the law laid down in **Akathethara Service Co-operative Bank Ltd. v. State of Kerala and others (2015 (3) KLJ 574)** stands reversed. The Division Bench held that, the word 'uniform' incorporated in Rule 35A(6)(n)(viii) of the Rules by S.R.O.1005/2010 dated 2.11.2010 mandates that all ballot papers shall be similar with regard to the projection of the names. The uniformity should be not only with respect to the ballot papers supplied to the members who desire to vote but also with respect to the names of contesting candidates therein. Giving different colour shades to the contesting 5 WP(C)42571 OF 2018 candidates or to a particular panel of contesting candidates is an anathema to the scheme of the election process contemplated. This is particularly so since there is no authority either under the Act or the Rules to allot a particular colour to a candidate depending on the political party to whom he owes allegiance. Paragraphs 4 to 8 of the said judgment reads thus; - “4. Rule 35A(6)(n)(viii) of the Rules is as under: - “(viii). Every member who desires to exercise his right of vote, shall subject to the provisions of Clause (ix), be supplied with a uniform ballot paper containing the names of contesting candidates arranged in the alphabetical order, either printed, type written or cyclostyled according to convenience, on the ballot paper. The ballot paper shall be serially numbered and shall also bear the seal of the society and also the signature of the Returning Officer and further contain a column for the voter to inscribe a mark (x) against the names of persons to whom he wants to vote.” (emphasis supplied) Therefore the following are the essentials of a ballot paper: - (a) The names of the contesting candidates arranged in an alphabetical order. - (b) The names of the contesting candidates printed, type written or cyclostyled. - (c) Uniform ballot paper serially numbered for supply to every member who desires to vote. - (d) Ballot paper to bear the seal of the society and 6 WP(C)42571 OF 2018 the signature of the Returning Officer. (e) Ballot paper to contain a column for the voter to inscribe his mark indicating vote. Any further ornamentation of the ballot paper by incorporation of a symbol or colour for the contesting candidate is not one contemplated either by the Act or the Rules and is wholly impermissible in law. 5. The word 'uniform' incorporated in Rule 35A(6)(n)(viii) of the Rules by S.R.O.1005/2010 dated 2.11.2010 mandates that all ballot papers shall be similar with regard to the projection of the names. The uniformity should be not only with respect to the ballot papers supplied to the members who desire to vote but also with respect to the names of contesting candidates therein. Giving different colour shades to the contesting candidates or to a particular panel of contesting candidates is an anathema to the scheme of the election process contemplated. This is particularly so since there is no authority either under the Act or the Rules to allot a particular colour to a candidate depending on the political party to whom he owes allegiance. Ext.P6 circular of the Registrar and Ext.P7 circular of the State Co-operative Election Commission only echo the prescriptions in Rule 35A(6)(n)(viii) of the Rules and are perfectly in order. Needless to say that the State Co-operative Election Commission has the power of superintendence for the conduct of election to a cooperative society under Section 28B of the Act. 6. We notice that a similar circular issued by the Registrar of Co-operative Societies was frowned upon in **Mahalingam R. v. State Co-operative Election** 7 WP(C)42571 OF 2018 **Commission and others** [2010 (1) KLT 46]. But the same was prior to the insertion of the word 'uniform' in Rule 35A(6)(n)(viii) of the Rules whereunder the society could print the names of the candidates in a dissimilar manner. It was pointed out that the amendment to Rule 35A(6)(n)(viii) was necessitated owing to complaints received alleging that colour change was based on caste, religion and political party. The word 'uniform' means 'characterised by lack of variation' and it was inserted in Rule 35A(6) (n)(viii) of the Rules with the sole object of treating all the candidates alike in the ballot paper. 7. The learned single Judge has opined that a good number of voters are illiterates and that allotting a separate colour to a candidate owing allegiance to a political party would help the voter in his choice. We fail to see as to how the members of the society in question at Palakkad could be illiterates unable to read even Malayalam in order to decipher the name of the candidate. Moreover Rule 35A(6)(n)(ix) of the Rules takes care of the contingency by enabling a companion to exercise the right of franchise as instructed by the voter subject to statutory prescriptions. The same includes the Presiding Officer (the Polling Officer or the Returning Officer) obtaining a declaration from the companion in Form No.38 given in Appendix II of the Rules. Therefore the possibility of an illiterate voter indicating his choice for a wrong candidate due to the absence of colour shade in projecting his name in the ballot paper is quite illusory. 8. We set aside the impugned judgment which holds that Rule 35A(6)(n)(viii) of the Rules is 'undemocratic and 8 WP(C)42571 OF 2018 unconstitutional' and restore Exts.P6 and P7 circulars issued in accordance therewith.” 7. In the instant case, in Ext.P3 representation, the request made by the petitioner was to print the name of the petitioner and 8 others in red colour on the ground that they are contesting as candidates of a particular panel. In view of the law laid down as above in the decision of the Division Bench, the reasoning of the 2[nd] respondent Electoral Officer in rejecting the request made by the petitioner in Ext.P3 representation is perfectly legal, which warrants no interference in this writ petition. 8. In such circumstances, the writ petition fails and the same is accordingly dismissed. 9. In terms of the interim order passed by this Court dated 28.12.2018, the election to the Managing Committee of the 5[th] respondent Society could not be conducted on 05.01.2019, as notified in Ext.P2 notification and it is for the 4[th] respondent State Co-operative Election Commission to take a decision as to the further course to be taken in the matter and proceed with the process of election to the Managing Committee of the 5[th] respondent Society. 9 WP(C)42571 OF 2018 A decision in this regard shall be taken, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 10 WP(C)42571 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER NO.C/4573/2018 DATED 8.11.2018 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF THE NOTIFICATION NO.E(1) 8984/2018/SCEC DATED 19.11.2018 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P3** **TRUE COPY OF THE PETITION DATED 24.12.2018 SUBMITTED BY THE PETITIONER AND OTHERS TO THE 1ST RESPONDENT.** **EXHIBIT P4** **TRUE COPY OF THE LETTER NO.284/18 DATED 24.12.2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P5** **TRUE COPY OF THE JUDGMENT DATED 11.9.2018 IN WP(C)NO. 29133/2018 PASSED BY THIS HON'BLE COURT.** ## **RESPONDENTS' EXHIBITS:NIL** **TRUE COPY** **P.A. TO JUDGE**