WA Nos.423 & 424/20 (State Co-operative Election Commission v. Venu C. and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** ## **WA.No.423 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 1256/2020(F) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 & 6 IN WPC:** |**1**|**STATE CO-OPERATIVE ELECTION COMMISSION**| |---|---| ||**CO-BANK TOWERS, 3RD FLOOR, PALAYAM,**| ||**VIKAS BHAVAN P.O.,**| ||**THIRUVNANTHAPURAM, PIN-695 033,**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**RETURNING OFFICER,**| ||**KATTAKKADA KSHEERA VYAVASAYA SAHAKARNA SANGHAM,**| ||**KATTAKKADA P.O.**| ||**THIRUVANANTHAPURAM-695 571.**| **BY ADV. SRI.R.LAKSHMI NARAYAN, SC** ## **RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 5 IN WPC:** |**1**|**VENU C.**| |---|---| ||**VENU SADANAM,**| ||**MYEKONAM, KALLODE P.O.**| ||**THIRUVANANTHAPURAM-695 571.**| |**2**|**KATTAKKADA KSHEERA VYAVASAYA SAHAKARANA SANGHAM**| ||**LTD NO 3869,**| ||**KATTAKKADA 695 571,**| ||**REPRESENTED BY ITS SECRETARY.**| |**3**|**ADMINISTRATOR,**| ||**KATTAKKADA KSHEERA VYAVASAYA SAHAKARANA SANGHAM**| ||**LTD NO 3869,**| ||**KATTAKKADA-695 571.**| WA Nos.423 & 424/20 **-:2:-** |**4**|**VELLANAD BLOCK DAIRY EXTENSION OFFICER,**| |---|---| ||**ELECTORAL OFFICER,**| ||**KATTAKKADA KSHEERA VYAVASAYA SAHAKARANA**| ||**SANGHOM, KATTAKKADA,**| ||**THIRUVANANTHAPURAM-695 553.**| |**5**|**ABDUL RAHIM,**| ||**MECHIRAKILLY KALLODE P.O.KATTAKKADA,**| ||**THIRUVANANTHAPURAM-695 571.**| ||**R1 BY ADV. SRI.D.SOMASUNDARAM**| ||**R1 & R5 BY SRI.R.LAKSHMI NARAYAN, SC**| **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16.03.2020, ALONG WITH WA.424/2020, THE COURT ON 19.5.2020 DELIVERED THE FOLLOWING:** **-:3:-** WA Nos.423 & 424/20 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** ## **WA.No.424 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 1256/2020(F) OF HIGH COURT OF KERALA** ## **APPELLANT/5TH RESPONDENT IN WPC:** **ABDUL RAHIM AGED 40 YEARS MECHIRSKILLY KALLODE.P.O, KATTAKADA, THIRUVANANTHAPURAM-695571** **BY ADV. SRI.M.R.SARIN** ## **RESPONDENTS/RESPONDENTS/PETITIONER IN WPC:** - **1 STATE COOPERATIVE ELECTION COMMISSION THIRUVANANTHAPURAM-695001** - **2 KATTAKADA KSHEERA VYAVASAYA SAKAHAKARNAN SANGHAM LTD NO.3869, KATTAKADA-695571, REPRESENTED BY ITS SECRETARY** - **3 ADMINISTRATOR KATTAKADA SHEERA VYAVASAYA SAHAKARANA SANGHAM LTD NO.3869, KATTAKADA-695571** - **4 VELLANAD BLOCK DAIRY EXTENSION OFFICER, ELECTROL KATTAKADA, KSHEERA VYAVASAYA SAHAKARANA SANGHAM, KATTAKADA-695553** WA Nos.423 & 424/20 **-:4:-** **5 RETURNING OFFICER KATTAKADA KSHEERA VYAVASYA SAHAKARANA SANGHAM, KATTAKADA.P.O, THIRUVANANTHAPURAM-695571** **6 VENU C. VENU SADANAM, MYEKONAM, KALLODE.P.O, THIRUVANANTHAPURAM-695571** **R6 BY ADV. SRI.D.SOMASUNDARAM** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16.03.2020, ALONG WITH WA.423/2020, THE COURT ON 19.5.2020 DELIVERED THE FOLLOWING:** **-:5:-** WA Nos.423 & 424/20 ## **JUDGMENT** Dated this the 19[th] day of May, 2020 ## _**Bechu Kurian Thomas, J.**_ These two appeals arise from the judgment dated 20.02.2020 in W.P.(C) No.1256 of 2020. By the impugned judgment, the learned Single Judge allowed the writ petition by quashing Ext.P9 order issued by the Election Commission and also directed the 6[th] respondent therein to complete the election proceedings initiated as per Ext.P1 notification. It was also directed that the 6[th ] respondent shall declare the nine nominated candidates as duly elected within ten days from the date of receipt of a copy of the judgment. 2. Appellants, who were respondents 1, 5 and 6 in the writ petition, have preferred these two appeals. The writ petition was filed by the 1[st] respondent in W.A. No.423 of 2020. He is arrayed as the 6[th] respondent in W.A. No.424 of 2020. Issue in this appeal relates to the election notification to Katakada Milk **-:6:-** WA Nos.423 & 424/20 Marketing (Ksheera Vyavasaya) Co-operative Society Ltd. 3. The writ petition was filed challenging Ext.P9 order passed by the Election Commission setting aside Ext.P1 election notification dated 16.07.2019, on grounds inter alia that the complete address of the members had not been mentioned in the voters list, there is repetition of names of some of the members, few A class members were omitted and included them as C class members, voters list was not prepared in accordance with the democratic principles. Thus, in purported exercise of the power of superintendence and direction under Section 28B(1) of the Kerala Co-operative Societies Act, 1969, Ext.P1 election notification was cancelled and fresh proceedings were directed to be initiated for conduct of fresh elections. 4. As per the schedule of election notified under Ext.P1, the preliminary voters list had to be published on 27.07.2019 and objections, if any, had to be submitted from 27.07.2019 till 02.08.2019 and the final voters list had to be published on 03.08.2019. It is also evident from Ext.P1 that the last date of nomination was 12.08.2019, while scrutiny was on 13.08.2019 and the last date for withdrawal of nomination was 14.08.2019. As per Ext.P1 election notification, it was prescribed therein that WA Nos.423 & 424/20 ## **-:7:-** if elections were required to be conducted, the same shall be conducted on 27.08.2019. 5. It was the admitted case of the parties before the learned Single Judge that there were only nine nominations received in all for the nine posts. Thus, there was no requirement for any polling to be conducted. 6. In the meantime, appellant in W.A. No.424 of 2020 along with another person preferred W.P.(C) No.22242 of 2019 before this Court pointing out that though the election notification bears the date 16.07.2019, it was published in the newspapers only on 30.07.2019 as mandated under Rule 35A(3) of the Kerala Co-operative Societies Rules (for short 'the Rules') and that the said notification was vitiated since it robbed the members of an opportunity to complain against the preliminary voters list. 7. It is interesting to mention at this juncture that in the statement filed in W.P.(C) No.22242 of 2019, as is evident from EXt.P5 judgment, the Election Commission had filed a statement stating that the notification was published in the society on 26.07.2019 itself, while it was published on 28.07.2019 in Kerala Koumudy daily and on 30.07.2019 in Veekshanam daily and that **-:8:-** WA Nos.423 & 424/20 since no objections were received to the preliminary voters list within the prescribed date of 02.08.2019, the final voters list was published on 03.08.2019. It was also mentioned that the petitioners in that writ petition, though alleged that they came to know about the election notification only on 30.07.2019, they still had time till 02.08.2019 to submit their objections to the Electoral Officer and having chosen not to do so within the stipulated time, the remedy, if any, could only have been under Section 69 of the Act. It is also seen from Ext.P5 that the Election Commission had in that case canvassed the proposition that since the process of election had already started by then, the election should be allowed to be completed without any interdiction. This Court, after taking note of the facts as projected by the parties in that case, came to the conclusion that the process of election need not be interdicted especially since the petitioners have not suffered any prejudice. However, this Court directed the Election Commission to decide on the objections raised by the writ petitioners in that case on 24.08.2019 itself. 8. As directed, a decision was taken by the Election Commission on 24.08.2019. It was held by the Election WA Nos.423 & 424/20 ## **-:9:-** Commission that the final voters list published contained irregularities and on that basis the election notification dated 16.07.2019 was cancelled. This led the 1[st] respondent herein and another to approach this Court in W.P.(C) No.24710 of 2019 challenging the decision of the Election Commission dated 24.08.2019. The contention raised therein was that they were persons whose nominations remain unopposed since there were only nine nominations received for the nine posts and that the order of cancellation of the election notification was issued by the Election Commission without even hearing them. Finding merit in the above contentions, this Court by Ext.P7 judgment set aside Ext.P6 order and directed the Election Commission to reconsider the matter afresh after hearing the parties. 9. Ext.P9 order was passed by the Election Commission consequent to the said direction in W.P.(C) No.24710 of 2019, cancelling the election notification on almost identical findings as the one rendered in Ext.P6. 10. When Ext.P9 was challenged in W.P.(C) No.1256 of 2020, the learned Single Judge in the impugned judgment found that it was well within the knowledge of the Election Commission that there was no contest for the election and that only nine **-:10:-** WA Nos.423 & 424/20 nominations had been received against nine seats that had to be filled pursuant to the election. It was also held that in such event, the Returning Officer was legally obliged to declare the result of the election by holding the nine nominated candidates as duly elected in accordance with Rule 35A(6)(i) of the rules. It was also observed that the conduct of the Election Commission in the litigation was reprehensible and wholly unbecoming of a functionary entrusted with implementation of constitutional mandates. On the aforesaid basis it was further found that there was no occasion to cancel the election notification. It was held that the Returning Officer ought to have declared the election by declaring the nine nominated candidates as duly elected. After the aforesaid conclusion, the learned Single Judge quashed Ext.P9 and directed the 6[th] respondent Returning Officer to complete the election proceedings initiated pursuant to Ext.P1 notification and declare the nine nominated candidates as duly elected. It is the aforesaid judgment which is impugned by the State Co-operative Election Commission as well as by the 6[th] respondent in the writ petition. 11. We heard Sri.R.Lakshmi Narayan, learned Standing Counsel appearing for the State Election Commission, WA Nos.423 & 424/20 ## **-:11:-** Sri.M.R.Sarin Panicker, learned counsel for the appellant in W.A. No.424 of 2020 and Sri.D.Somasundaram, learned counsel for the 5[th] respondent in W.A. No.423 of 2020. 12. Adv.R.Lakshmi Narayan, vehemently contended that even though the polling was not required, the mandatory stipulation in the Act and the Rules were required to be complied with and that any violation vitiates the entire election process, which fact was not borne in mind by the learned Single Judge. He further argued that the provision for publication of election notification in two vernacular dailies was a mandatory requirement and that since the same was not done before the date of publication of the preliminary voters list, Election Commission was justified in cancelling the election notification on the ground of breach of mandatory provision. It was also contended that the adverse observations made in the judgment by the learned Single Judge was unwarranted and was liable to be expunged since the Election Commission had acted with bonafides and was acting under orders of this court especially the observations in the concluding paragraphs of Ext.P5 judgment. 13. Sri.M.R.Sarin Panicker, also supported the arguments **-:12:-** WA Nos.423 & 424/20 of Sri.Lakshmi Narayan and submitted that cancellation of the election notification was perfectly justified since the same will give an opportunity to other members to participate in the election process. 14. Sri.D.Somasundaram, learned counsel for the 1[st] respondent in W.A. No.423 of 2020 submitted that the learned Single Judge was primarily justified in allowing the writ petition since the stand of the Election Commission at the first instance, as evident from Ext.P5 in W.P.(C) No.1256 of 2020 underwent a curious change subsequently in Ext.P6 and when W.P.(C) No.24710 of 2019 was filed. Thereafter in Ext.P9 and in the writ petition leading to this appeal also, the stand was visibly different from the original stand in Ext.P5. He further submitted that publication of the election notification in two vernacular dailies is within the realm of authority of the Election Commission and that even though there was a slight delay in publication in one of the dailies, the same had no material implication as far as the process of election was concerned, since (1) the notice was published in the noticeboard of the society on 26.07.2019 (2) the first publication in the vernacular daily was on 28.07.2019, (3) the publication in the second vernacular daily WA Nos.423 & 424/20 ## **-:13:-** was on 30.07.2019; thereby giving the objectors time till 02.08.2019 to object to the voters list and (4) none having preferred any objection to the preliminary voters list even by 02.08.2019, the final voters list having been published, it cannot be said that there was any illegality in the election process. 15. We have considered the rival contentions made at the Bar and perused the pleadings and exhibits attached therewith. In Ext.P9 the Election Commission has cancelled the election notification without adverting to the fact that the number of nominations received were equal to the number of posts and hence the conduct of polling was not required in the instant case. It has also not been adverted to in Ext.P9 order that the election notification was published in the society on 26.07.2019 and also in two vernacular dailies on 28.07.2019 as well as on 30.07.2019. The consequence of the above referred three dates is that though there is a mistake in the publication of the election notification, the same is not material or significant. This is because the time for filing objections to the preliminary voters list was available till 02.08.2019. The intention behind publishing the election notification in the two vernacular dailies and in the noticeboard of the society as required under Rule WA Nos.423 & 424/20 ## **-:14:-** 35A(3) of the Rules is to intimate the members of the society about the proposed election and its schedule of dates. Thus, the information is deemed to have been received by the members on 26.07.2019 - the date when notice was affixed on the noticeboard, 28.07.2019 - the date when the first notice was published in one vernacular daily in Kerala Koumudy and 30.07.2019 - when notification was published in Veekshanam daily. Reckoning the last date of publication as the date on which the information is deemed to have been received by the members, still there was time till 02.08.2019 to submit objections to the preliminary voters list. Objections having not been preferred by any person, it cannot be said that any prejudice has been caused to any person on account of delayed publication. The members of the society can be deemed to have acquiesced in the preliminary voters list by not preferring any objection to the said list. 16. In this context it may be appropriate to mention that Rule 35A is a compendium of the procedure regarding conduct of elections to the committee of societies in the State of Kerala. Rule 35A(3) makes the State Election Commission the repository of the power for notifying the details of election. It is his WA Nos.423 & 424/20 ## **-:15:-** bounden duty to get the election notification published in the two vernacular dailies containing the details of election. Such confirmation of power of notifying the elections have been bestowed upon the Election Commission, the 1[st] respondent cannot thereafter turn around and say that the election notification is liable to be cancelled on account of the delay in publishing the notification in the vernacular dailies. 17. Further, it is fundamental that once an election process has commenced, any dispute relating to any of the steps that culminated in the election or the election itself has to be challenged by way of an election petition. The power of the Election Commission is to ensure free and fair conduct of elections, that too, in a democratic manner. Preparation of an electoral roll is undoubtedly a part of the election process and if there is any mistake in the preparation of the electoral roll, it goes without saying the same is a matter for consideration only by an election petition. This is all the more so when the statue provides a particular stage to raise objections and the final list is published after completing that stage. We are fortified in the above view by the judgment of the Hon'ble Supreme Court in **Shri Sant Sadguru Janardan Swami (Moingiri Maharaj)** WA Nos.423 & 424/20 ## **-:16:-** ## **Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra** [(2001) 8 SCC 509]. 18. As per Rule 35A(6)(i) when the number of valid nominations received by the Returning Officer is the same as the number of posts available, the Returning Officer is bound to declare those candidates as duly elected. Thus, as on 14.08.2019 it was certain that polling was not required any longer and that all what remained was declaration of such candidates who had submitted their nominations as duly elected. At that stage, it was certainly not available to the 1[st] respondent to cancel the election notification and direct fresh elections to be conducted. 19. The learned Single Judge having found that Ext.P9 was wrong in law and on facts, set aside the same. We find no legal infirmity in the said judgment warranting interference in this appeal under Section 5(i) of the Kerala High Court Act, 1958. 20. During the course of arguments, when we expressed our disinclination to interfere with the judgment of the learned Single Judge, Sri.Lakshmi Narayan, learned Standing Counsel, in all fairness, submitted that he is confining his contentions to the observations made by the learned Singe Judge, which according **-:17:-** WA Nos.423 & 424/20 to him was not warranted in the facts and circumstances of the case. Though we expressed our displeasure in the manner in which the stand of the Election Commission have changed, we find some force in the submission of the learned Standing counsel for the Election Commission that the 1[st] respondent was perhaps carried away by the observations in paragraph 8 of Ext.P5 judgment, wherein it was stated that "When I observe as above, I am also fully cognizant of the submissions of Shri.Rajesh Kannan-learned counsel for the petitioner, that on account of the delay in publication of Ext.P1 Notification his clients could not bring it to the notice of the Electoral Officer that large number of members have been illegally excluded from the preliminary voters list and that, consequently, the elections to be now conducted would only be a farce". In such view of the matter, we feel it is only just and proper that the observations of the learned Single Judge in paragraph 5 of the impugned judgment shall stand expunged. 21. In the result, while dismissing both writ appeals, we order that the observations of the learned Single Judge in the impugned judgment and extracted as follows " _The conduct of the Election Commission in the litigation aforementioned, as also its_ WA Nos.423 & 424/20 ## **-:18:-** _subsequent conduct in passing orders without reference to this crucial fact, is in my view, reprehensible and wholly unbecoming of a functionary that is entrusted with the implementation of a constitutional mandate_ " shall stand expunged. Ordered accordingly. **Sd/C.T. RAVIKUMAR JUDGE** **Sd/JUDGE** **BECHU KURIAN THOMAS** vps /TRUE COPY/ PS TO JUDGE