WP(C).Nos. 37802 & 38886 of 2015 (A)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** ## **THURSDAY, THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938** ## **WP(C).No. 37802 of 2015 (A)** **----------------------------** ## **PETITIONER(S):** **------------------------** ## **1. B.JUSTIN,** - **S/O.BERKMANS, MEMBERSHIP NO:3, MOOTHAKARA FISHERMAN DEVELOPMENT WELFARE CO-OPERATIVE SOCIETY NO.FQ-98, RESIDING AT PAYTTADATHU PURAYIDAM, MOOTHAKARA, KOLLAM.** **2. M.JOSEPH, S/O.MELKIAS,** - **MEMBERSHIP NO:44, MOOTHAKARA FISHERMAN DEVELOPMENT WELFARE CO-OPERATIVE SOCIETY NO.FQ-98, RESIDING AT FISHERMEN COLONY, MOOTHAKARA, KOLLAM.** ## **BY ADVS.SRI.B.MOHANLAL SRI.P.R.PREMACHANDREN** **RESPONDENT(S):** **--------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE SECRETARY TO GOVERNMENT, FISHERIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM -695 001.** **2. THE DIRECTOR OF FISHERIES, GOVERNMENT OF KERALA (REGISTRAR OF FISHERIES CO-OPERATIVE SOCIETY), THIRUVANANTHAPURAM -695 001.** **3. THE JOINT DIRECTOR OF FISHERIES (REGISTRAR OF FISHERIES CO-OPERATIVE SOCIETY), SOUTH ZONE, KAMALESWARAM, THIRUVANANTHAPURAM-695 002.** **4. MOOTHAKARA FISHERMAN DEVELOPMENT WELFARE CO-OPERATIVE SOCIETY NO.FQ-98, MOOTHAKKARA, VADDY P.O., KOLLAM, REPRESENTED BY ITS SECRETARY.** **5. THE ADMINISTRATIVE COMMITTEE, THE MOOTHAKARA FISHERMAN DEVELOPMENT WELFARE** **CO-OPERATIVE SOCIETY NO.FQ-98, MOOTHAKKARA, VADDY P.O., KOLLAM, REPRESENTED BY ITS CONVENER, PRADEEP.** **2/-** **-2-** ## **WP(C).NO.37802/2015** **6. THE STATE CO-OPERATIVE CHIEF ELECTION COMMISSIONER, THIRUVANANTHAPURAM -695 001.** **7. THE ELECTORAL OFFICER, THE MOOTHAKARA FISHERMAN DEVELOPMENT** **WELFARE CO-OPERATIVE SOCIETY NO.FQ-98, MOOTHAKKARA, VADDY P.O., KOLLAM, (ASSISTANT REGISTRAR OF FISHERIES, COLLECTORATE, CUTCHERY P.O., KOLLAM -691 013)** **8. THE RETURNING OFFICER, THE MOOTHAKARA FISHERMAN DEVELOPMENT WELFARE** **CO-OPERATIVE SOCIETY NO.FQ-98, MOOTHAKKARA, VADDY P.O., KOLLAM, (THE FISHERIES DEVELOPMENT OFFICER, GRADE-I, COLLECTORATE, CUTCHERY P.O., KOLLAM- 691 013)** ## ***ADDL.R9 & R10 IMPLEADED** - ***ADDL.R9: RICHARD STANSILAS, S/O.STENSILAS, MEMBERSHIP NO.22, FISHERMEN COLONY, MUTHAKARA, KOLLAM-691 013.** ***ADDL.R10: RAMJIS DAYONS, S/O.DAYONS, MEMBERSHIP NO.73, KADAPPURAM PURAMBOKE, MUTHAKARA, KOLLAM-691 013.** ***ADDL.R9 AND R10 ARE IMPLEADED AS PER ORDER DATED 23/2/2016 IN IA.NO.1019/2016.** ## ***ADDL.R11 & R12 IMPLEADED** - ***ADDL.R11: MARY JOICE, AGED 30 YEARS, D/O.VINCENT, RESIDING AT FISHERMEN COLONY, MUTHAKKARA, KOLLAM.** - ***ADDL.R12: SARAMMA STEEPHAN, AGED 40 YEARS, W/O. STEEPHAN, RESIDING AT FISHERMEN COLONY, MUTHAKKARA, KOLLAM.** ***ADDL.R11 & R12 ARE IMPLEADED AS PER ORDER DATED 23/02/2017 IN IA.NO.20919/2016.** ## **R1 TO R3, R6 BY GOVERNMENT PLEADER SRI.SYAMJI RAM R5 BY ADVS. SRI.V.JAYAPRADEEP** **SMT.S.LEKHA (THENGAMAM) ADDL.R9 & R10 BY ADVS. SRI.V.G.ARUN SRI.T.R.HARIKUMAR ADDL.R11 & R12 BY ADV. SRI.D.SOMASUNDARAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-02-2017, ALONG WITH WPC.NO. 38886/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 37802 of 2015 (A) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **---------------------------------------** - **P1: THE TRUE COPY OF THE BYE-LAW OF THE MOOTHAKARA FISHERMAN DEVELOPMENT WELFARE CO-OPERATIVE SOCIETY NO.FQ-98 ORDER NO:F3/2343/2014 DATED 9/4/2015 ISSUED BY THE 3RD RESPONDENT** - **P2: THE TRUE COPY OF THE AMENDED BYE-LAW AND CERTIFICATE ISSUED BY THE 3RD RESPONDENT** - **P3: TRUE COPY OF THE DETAILS OF THE MEMBERS OF THE 4TH RESPONDENT SOCIETY** - **P4: THE TRUE COPY OF THE ORDER NO:F3/2343/2014 DATED 9/4/2015 ISSUED BY THE 3RD RESPONDENT** - **P5: THE TRUE COPY OF THE APPLICATION DATED 28/7/2015 ISSUED BY THE 1ST PETITIONER TO THE 2ND RESPONDENT** - **P6: THE TRUE COPY OF THE ADVOCATE NOTICE DATED 14/9/2015 SENT BY THE 1ST PETITIONER THROUGH HIS COUNSEL TO THE 2ND RESPONDENT** - **P7: THE TRUE COPY OF THE APPLICATION DATED 28/7/2015 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT** - **P8: THE TRUE COPY OF THE LAWYER NOTICE DATED 14/9/2015 ISSUED BY THE 2ND PETITIONER THROUGH HIS COUNSEL** - **P9: THE TRUE COPY OF THE ORDER NO: F2/22694/14(1) DATED 1/10/2015 PASSED BY THE 2ND RESPONDENT AND TRANSLATION** - **P10: THE TRUE COPY OF THE ORDER NO:F2/22694/14(2) DATED 1/10/2015 PASSED BY THE 2ND RESPONDENT AND TRANSLATION** - **P11: THE TRUE COPY OF THE ELECTION NOTIFICATION PUBLISHED BY THE 8TH RESPONDENT DATED 18/11/2015 AND TRANSLATION** - **P12: THE TRUE COPY OF THE 258 NEW MEMBERS OF THE 4TH RESPONDENT SOCIETY ENROLLED BY THE ADMINISTRATIVE COMMITTEE.** - **P13: THE TRUE COPY OF THE DELETED 180 MEMBERS FROM THE 4TH RESPONDENT SOCIETY BY THE 5TH RESPONDENT ADMINISTRATIVE COMMITTEE.** - **P14: THE TRUE COPY OF THE 84 MEMBERS TO BE DISQUALIFIED FROM THE 4TH RESPONDENT SOCIETY** - **P15: THE TRUE COPY OF THE PETITION DATED 7/12/2015 SUBMITTED BY THE PETITIONERS BEFORE THE RESPONDENTS 2 TO 8** - **P16: THE TRUE COPY OF THE FINAL VOTERS LIST OF THE 4TH RESPONDENT SOCIETY PUBLISHED BY THE 5TH RESPONDENT** **2/-** **-2-** ## **WP(C).No. 37802 of 2015 (A)** ## **P17: COPY OF THE MEMBERSHIP/VOTERS LIST SIGNED AND SEALED BY ADMINISTRATOR OF MOOTHAKKARA SOCIETY AS ON 08/07/15 IN ENGLISH** ## **IA.NO.1019/2016 IN P17: COPY OF THE REPRESENTATION DATED 26/12/2015 FILED BY THE PETITIONERS BEFORE THE RESPONDENTS 2,3 AND 6** - **P18: COPY OF THE ORDER NO.F3/2343/2014 DATED 30/12/2015 ISSUED BY THE JOINT DIRECTOR OF FISHERIES (REGISTRAR OF FISHERIES CO-OPERATIVE SOCIETY)** ## **RESPONDENT(S)' EXHIBITS** ## **----------------------------------------** **R5(A): COPY OF THE ORDER DATED 9/12/2015 OF RETURNING OFFICER.** - **R9(A): COPY OF THE GO(ORD) NO.586/2016/FISHERIES AND PORTS DEPARTMENT DATED 09/09/2016.** ## **/TRUE COPY/** ## **P.S.TO JUDGE** **sts** ## **CR** ## Devan Ramachandran, J. ---------------------------------------------------- W.P.(C)Nos.37802 & 38886 of 2015 ----------------------------------------------------- Dated this the 23[rd] day of February, 2017 ## **JUDGMENT** As an exordium, I must remember that I am bound by the binding precedent of the Hon'ble Supreme Court in **Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Another v. State of Maharashtra & Others** ((2001) 8 SCC 509) and **Vadathara District Co-operative Sugarcane Producers Union Ltd. v. Chandrakantbhai Thakorebhai Patel** ((2005) 11 SCC 523) by which the courts acting under Article 226 of the Constitution of India are prohibited and restrained from interfering with issues relating to elections and specifically those concerning the Electoral Roll once notifications for such elections are published. I am aware that the Hon'ble WPC 37802 & 38886/15 2 Supreme Court has clearly delineated the jurisdictional parameters of courts in relating to such disputes and has proscribed any form of interference once the process has begun. I keep this in mind while considering the nature of the reliefs that can be granted to the petitioners in these writ petitions. 2. These writ petitions are filed by the members of the Moothakara Fishermen Development Welfare Cooperative Society under the jurisdictional control of the third respondent. The Society operates under the provisions of the Kerala Co-operative Societies Act and Rules and is presently being administered by an Administrator. 3. The controversy arose when proceedings were notified for the purpose of conduct of elections to the managing committee of the Society, which was resisted on various grounds by the petitioners. They appear to be essentially aggrieved by the manner in which the voters' WPC 37802 & 38886/15 3 list was prepared and published and they allege that several undeserving persons have been inducted into the list by the then managing committee. They, therefore, have filed these writ petitions seeking various prayers, including that the process of election be interdicted. Since these writ petitions contain substantially the same averments, make more or less identical allegations and have sought reliefs which are connected to each other, I deem it appropriate that these writ petitions be disposed of jointly by this judgment. For the purpose of convenience, W.P.(C)No.37802/2015 is treated as the lead case and reference to the parties in this judgment will be as per the manner in which they are arrayed in the said writ petition. 4. I have heard the learned counsel for the petitioners, the learned counsel for the contesting respondents and the learned Government Pleader for the official respondents. WPC 37802 & 38886/15 4 5. From the pleadings on record and the submissions made at the Bar, it is obvious that the contest primarily is as to the induction of certain persons into the published voters' list, which, according to the petitioner, had been done without authority by the then managing committee. They say that the managing committee had employed chicanery in admitting persons without the sanction of law and then even have the guile of misrepresenting before this Court regarding the persons who have been inducted and the persons who have been removed. I need not elaborate on this any further because these facts have been noticed by this Court in the detailed interim order issued on 21.12.2015. Two paragraphs of the said order would show the manner in which a learned Single Judge has considered these issues. The paragraphs are extracted as under: “Prima facie observed, though the managing committee had inducted 258 persons, it made it look as if it admitted only 96 persons. It has also had the audacity to place on record that 43 members have WPC 37802 & 38886/15 5 been removed, but not 180. The learned counsel for the petitioners could demonstrate before this Court that it replaced the old members with new ones assigning them the same membership number. With this artifice, the fifth respondent made light of things: it would have us believe that only 96 were admitted and 43 were removed. In my considered view, there is more than prima facie materials to conclude that the administrative committee has indulged in wholesale induction of new members and removal of existing members. Both the fifth respondent administrative committee and the eighth respondent have misdirected themselves in asserting that only 96 new members have been inducted and 43 existing members have been removed. In the light of the judicial dictum adverted to above, the admission of the new members by the administrative committee is impermissible. Thus, Exhibit P12 voters' list is vitiated.” 6. Ineluctably, therefore, this Court had entered, more than as a prima facie view, an opinion that the then administrative committee had acted unfairly and illegally in admitting new members. I see that the order has now attained finality and none of the parties to these writ petitions have challenged it in any manner. The conclusions of the learned Single Judge in that order has virtually been accepted by the parties which is evident WPC 37802 & 38886/15 6 from the fact that no one has mounted any challenge against them. Even though I am restricted in the exercise of jurisdiction by the ratio of the Hon'ble Supreme Court in **Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha** (supra), I think this is a case where a forensically justifiable exception can be drawn to grant reliefs as would be essentially required to ensure that elections are able to be completed expeditiously but within the parameters of fairness and legality. 7. I am fully aware that in normal circumstances, I would not have been justified in entering into any inquiry as to the validity or otherwise of the voters' list, but looking at the way in which the above observations of the learned Single Judge had been made I do not think I can take it lightly and then simply dismiss it saying that no such interference can be made once the process of election has been initiated. For this reason alone, I think WPC 37802 & 38886/15 7 certain directions will have to be issued and I propose to make them as under. 8. Since I am of the firm view that none of the parties would be benefited by these writ petitions being pending here for ever and no one would obtain any benefit by maintaining the status with respect to the elections in the manner it has now come to be before this Court, it is only appropriate and desirable that the elections be allowed to continue without any further hurdle. I am told that the Society is now under the management of an Administrator because an attempt to appoint an administrative committee subsequent to the interim order of this Court dated 21.12.2015, has also been injuncted by this Court vide order dated 30.11.2016. Obviously, there cannot be any doubt that the Society is now under the management of the Administrator. If that be so, the administrator certainly will have to ensure that elections are conducted in terms of the law and in the WPC 37802 & 38886/15 8 procedure mandated within the quickest possible time. 9. The only impediment that I see in the conduct of the elections today is the findings of this Court as recorded above with respect to the voters' list. I reiterate I would not have normally interfered with it. But this is a case where this Court having already found, and which are now uncontested, that there are several persons who have been inducted into the voters' list illegally, I would not be justified in turning a blind eye to that and then taking umbra under the binding precedent to say that nothing can be done in spite of such observations. I do not think this would be fair and I do not think it will be just. I am sure that once this Court has made a record of its mind, at least as a prima facie view, that inclusion of certain persons is illegal it would then be required to be gone into and considered by an appropriate authority who has the necessary competence. WPC 37802 & 38886/15 9 10. From a survey of the Act, Rules and Regulations, I cannot see a more competent and a better equipped authority than the Electoral Officer, the seventh respondent herein, to consider the legality or validity of the inclusions made in the voters' list by the earlier managing committee with specific advertence and reference to the interim order of this Court dated 21.12.2015, the relevant paragraphs of which are extracted above. I direct him to do so within a period of one month from the date of receipt of a copy of this judgment. 11. Since these writ petitions have been pending before this Court for the past more than two years, it is only appropriate that the Administrator and the seventh respondent-Electoral Officer take every effort to have the elections completed from the stage at which the proceedings were at the time of the interim order dated 21.12.2015 at the earliest possible time but not later than WPC 37802 & 38886/15 10 six months from the date on which the Electoral Officer completes the review of the voters' list, as directed herein before, by weeding out ineligible persons and if law permits, to induct persons who are eligible as has been noticed in the interim order. The writ petition is ordered as above. In the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs. Devan Ramachandran, Judge tkv