Writ Appeal No. 228 of 2024 (Kerala High Court)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`&`** ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA ``` ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 ``` ``` WA NO. 228 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 08.01.2024 IN WP(C) NO.22503 OF 2022 OF HIGH COURT OF KERALA ``` ``` APPELLANTS/RESPONDENTS 7 TO 13 & 15 TO 17 IN WP(C): ``` - **`1 ANIL PRASAD V.S. AGED 55 YEARS MEMBER NO. A-6111, RESIDING AT RATNAVIHAR,ERAVIMANGALAMP.O.,VAIKOM,KOTTAYAM DISTRICT, PIN - 686613`** - **`2 JOSEPH A.V. AGED 68 YEARS MEMBER NO. A-7942, S/O. VARGHESE, AMBALATHIL,THALAYOLAPARAMBUP.O., KOTTAYAM DISTRICT-, PIN - 686613`** - **`3 JOSE JAMES AGED 49 YEARS MEMBER NO. A-3201, S/O. JAMES, PULIYALAKKAL,ARUNNOOTTIMANGALAMP.O.,KOTTAYAM DISTRICT, PIN - 686604`** - **`4 LUKA J. AGED 77 YEARS MEMBER NO. A-8851, S/O. JOSEPH, PUTHUCHIRA, T.V. PURAMP.O.,VAIKOM,KOTTAYAM DISTRICT, PIN - 686606`** - **`5 VAKKACHAN MANNATHALI AGED 71 YEARS MEMBERNO.A-2632S/O.E.K.JOSEPH, MANNATHALIL,AMBIKAMARKETP.O.,KOTTAYAMDISTRICT, PIN - 686144`** - **`6 SUDHARMAN K.M. AGED 71 YEARS MEMBER NO. 15790, S/O. MADHAVAN, KANDONTHARAYIL,KARIPADOMP.O.,KOTTAYAM DISTRICT, PIN - 686605`** - **`7 SURENDRANATHA KAIMAL AGED 62 YEARS`** W.A.No.228 of 2024 2 ``` MEMBER NO. A-8178, S/O. PADMANABHAN NAIR,PUTHUMITTATH,KARIPADOMP.O.,KOTTAYAMDISTRICT- , PIN - 686605 ``` - **`8 BABUMOL SHAJI AGED 51 YEARS MEMBER NO. A-2383, D/O. PADMANABHAN, PERUMKULATHIL,VADAKARAP.O.,KARIPADOMP.O.,KOTTAYAM DISTRICT, PIN - 686605`** - **`9 SALYBABU AGED 52 YEARS`** ``` MEMBER NO. A-2190, D/O. LONANKUTTY, ARIKKASSERY, CHEMMANATHUKARAP.O.,KOTTAYAMDISTRICT-, PIN - 686606 ``` - **`10 K.P. BHASKARAN AGED 63 YEARS`** - **`MEMBER NO. 29530, S/O. PAPPY, SREEVALSAM, VELLASSERYP.O.,KADUTHURUTHY, KOTTAYAM DISTRICT, PIN – 686604`** ``` BY ADV M.A.ASIF ``` ## **`RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 6 & 14 IN W.P.(C):`** - **`1 JOHN V.C. S/O. JOHN V.J., VALAVATH, THEKKENADA P.O., VAIKOM,KOTTAYAMDISTRICT., PIN - 686146`** - **`2 K.S. BIJUMON S/O. SANKARA PILLAI, NANDANAM, MARAVANTHURUTH P.O.,VAIKOM,KOTTAYAM DISTRICT., PIN - 686608`** - **`3 THANKAMMA VARGHESE W/O. VARGHESE, AARAKKAL, ERUMPAYAM P.O., VAIKOM,KOTTAYAMDISTRICT., PIN - 686605`** - **`4 VIJAYAN V. S/O. VELAYUDHAN, ONATTU, PALLIPRATHUSSERY P.O., VAIKOM,KOTTAYAM DISTRICT., PIN - 686606`** - **`5 ANITHA G NAIR W/O. KRISHNAKUMAR, THEJUSS, NADUVILE, VAIKOM,KOTTAYAM DISTRICT., PIN - 686606`** - **`6 STATE OF KERALA REPRESENTED BY ITS SECRETARY. DEPARTMENT OF COOPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** W.A.No.228 of 2024 3 - **`7 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL) COLLECTORATE, KOTTAYAM, PIN - 686002`** - **`8 THE STATE CO-OPERATIVE ELECTION COMMISSION 3RD FLOOR, CO-BANK TOWERS, VIKASBHAVAN,THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN., PIN - 695033`** - **`9 THE RETURNING OFFICER VAIKOM TALUK CO-OPERATIVE AGRICULTURAL &RURAL DEVELOPMENT BANK LTD. NO. K951 MIDUKKI ENTERPRISES BUILDING,KACHERIKAVALA,VAIKOM KOTTAYAMDISTRICT., PIN - 686141`** - **`10 THE ELECTORAL OFFICER VAIKOM TALUK CO-OPERATIVE AGRICULTURAL &RURAL DEVELOPMENT BANK LTD. NO. K951 MIDUKKI ENTERPRISES`** - **`BUILDING,KACHERIKAVALA,VAIKOM,KOTTAYAMDISTRICT., PIN - 686141`** - **`11 VAIKOM TALUK CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LTD.NO. K951, MIDUKKI ENTERPRISES BUILDING, KACHERIKAVALA, VAIKOM, REPRESENTED BYITS SECRETARY., PIN - 686141`** - **`12 ANNAMMA RAJA MEMBER NO. A-2962, D/O. PHILIP PAILO, KOCHUPARAMBIL,KALLARASOUTHP.O.,KOTTAYAM DISTRICT-, PIN - 686611`** ``` BY ADVS.SR ADV SRI GEORGE POONTHOTTAM SRI.K.C.VINCENT SRI.T.SHIHABUDHEEN STEPHINE RAJEEV(K/02511/2023) ``` ## **`OTHER PRESENT:`** ``` SR GP SRI BIMAL K NATH ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.A.No.228 of 2024 4 **AMIT RAWAL & C.S. SUDHA, JJ. -------------------------------------------------** W.A.No.228 of 2024 **-----------------------------------------------------** Dated this the 19[th] day of February, 2024 ## **JUDGMENT** ## **Amit Rawal , J .** The present intra court appeal is directed against the judgment of the Single Bench whereby the writ petition filed by the respondents/petitioners has been allowed with directions to the State Co-operative Election Commission and Returning Officer to continue the election from the stage of polling by fixing a fresh polling date and complete the election in accordance with the provisions contained in Rule 35A(6)(n)(ix) of Kerala Co-operative Socieities Rules. 2. Primarily on the ground that preparation of the electrol roll would constitute an initiation of election process, for any fault therein, the aggrieved party would have a remedy for election petition but not writ court. 3. Before claiming reliefs in this petition, there had been series of litigation, inasmuch as that the previous term W.A.No.228 of 2024 5 of the elected members of the committee elected in 2016 was to expire on 16[th] of January, 2021 by Ext.P1 dated 27[th] of November, 2020 notification was issued notifying the election on 10[th] of January, 2021. 4. Certain complaints were made including by one by Jose dated 17[th] of December, 2020 making following allegations: The register required to maintain under Form 6B was not properly maintained. Many members have been listed as the members who are not the residents of that area and some ineligible members have also been made members. The aforementioned complaint was referred to the Assistant Registrar to make an enquiry. 5. The Assistant Registrar submitted a report, dated 23[rd] of December, 2020 (Ext.R6(f)) in writ appeal bearing No.202 of 2024 preferred by the State which has been withdrawn by separate judgment, and found that certain ineligible persons were included in the list. Noticing all these facts the Election Commission came up with an order dated 8[th] of January, 2021 and postponed the elections vide W.A.No.228 of 2024 6 Ext.R2(b) by approving the report and also noticing the fact that the Register was not maintainable as required under Rule 16A and Form 6A and 6B. 6. W.P.(C).No.5491 of 2021 was preferred by the petitioner before this Court for ordering fresh election which was dismissed and in W.A.No.1314 of 2021, modified with a direction to initiate the process of election from the stage at which it was stopped. The elections were notified by notification dated 3[rd] of December, 2021 for 30[th] of January, 2022. But, owing to Covid-19 pandemic, it could not be held. Vide separate notification election was notified to be conducted on 9[th] of July, 2022. Before holding of the election, former President of the Society filed W.P. (C).No.20801 of 2022 claiming two fold reliefs, one for smooth conduct of the election, police protection should be provided and it should be based upon the production of Identity Card as provided in Explanation to Rule 35A(6)(n)(ix) in addition to the Identity Card issued by the bank and the other, to appoint an Advocate Commissioner to observe the election. W.A.No.228 of 2024 7 7. This Court, vide judgment dated 04[th] of July, 2022, disposed of the writ petition with a direction to the Election Commission to hold the elections on 09[th] of July, 2022 by providing police protection and the entire election should be videographed. On the date of election certain members including the petitioners in the writ petition were not allowed to cast their vote despite the fact that their names figured in the voters list consisting of 14000 and odd members. On declaration of the result, the party respondents who are the elected Directors of the Committee assumed the office and also held a meeting on 18[th] of July, 2022. The writ petition was filed immediately thereafter. 8. Learned Single Judge summoned the records from the society to examine the veracity of the allegations made in the writ petition. On examination of the records it was found that certain identity cards issued in the name of the members were not recorded in the register to be maintained by the society and found that many of the members, more than eight hundred and thirty (830) were not permitted to W.A.No.228 of 2024 8 cast their votes on the allegations that their identity cards did not tally with the register. Noticing all these facts disposed off the writ petition as stated above with a direction to the election commission for holding the election by fixing a fresh polling date strictly in compliance with the provisions contained in Rule 35A(6)(n)(ix) of KCS Rules. 9. Two appeals have been preferred. One appeal (W.A.No.202 of 2024) is filed by the State which after arguing for some time has been withdrawn. Mr.Jimmy George, learned counsel appearing on behalf of the society submitted that his client/society has already filed an appeal, which is pending for rectification/scrutiny of the Registry and has not been listed so far, and along with counsel for appellant raised the following submissions:- Once the election process which includes the preparation of the electoral roll starts the remedy for any affected party would be to prefer an election petition. In support of the contention, various case laws have been cited. W.A.No.228 of 2024 9 10. Along with the relief of holding the election strictly as per Rule 35A(6)(n)(ix) of KCS Rules, police protection was also sought in the cited writ petition, but the said relief was denied. 11. Few of the members who were not permitted to cast their vote despite production of the identity cards have already availed the alternative remedy under Section 69 of the Act. 12. No preventive action was taken by the petitioners/respondents for smooth functioning of the election for maintaining the register as sought to be done now, apprehending that the voters may or may not be permitted to cast their votes. 13. On the other hand, learned Senior Counsel for the respondents/petitioners submitted that once the court had undertaken the task of summoning the records in the absence of any challenge to the interim order, the court had prima facie found that the register maintained in the office of the society was not in accordance with the provisions of W.A.No.228 of 2024 10 Rule 16A, Form 6A and 6B and at the best, the Returning officer/Presiding offcer could have asked the members to produce other proof as mentioned in Rule 35A(6)(n)(ix) of KCS Rules for the purpose of election. But without exercising such right, the whole election process has been vitiated and rightly so, ordered to fix the fresh polling date **.** There is no illegality and perversity in the said judgment. In support of the contention also relied upon the unreported judgment of a Division Bench of this Court in W.A.No.92 of 2022 decided on 16[th] of June, 2022 where in case of a Society similar exercise was undertaken for holding the election by providing police protection for, on two occasions elections notified could not be held on account of hindrances created by one faction. Relying upon another judgment of a Division Bench of this Court in **George Kuruvilla and Others v. Kerala State Co-operative Election Commission and** **Others** [2010 (1) KHC 561] held that in the absence of proper notice to the members, Election Commission was rightly directed to re-notify the poll date and hold fresh W.A.No.228 of 2024 11 elections at the earliest while exercising the power of writ court under Article 226 of the Constitution of India. 14. Mr.T.Shihabudheen, counsel representing respondent No.12 (elected member) has, in support of the contention, cited the judgment of this Court in **Mohanachandran Nair v. State Co-operative Election Commission** [2013 (3) KLT 506] to contend that if there is a dispute with regard to the non-maintenance of the register and issuance of the identity card, affected party is relegated to file the election petition instead of filing the writ petition. 15. We have heard learned counsel for parties and appraised the paper book. 16. No doubt that the ratio decidendi culled out in the judgments cited do necessitate that affected party like the respondents/petitioners after declaration of the result would be required to avail the remedy of election petition and this objection was though taken in the first instance, but during the stage of the hearing of the matter, vide interim order, the records of the society was called for comparison. At that W.A.No.228 of 2024 12 stage, the affected parties like the appellants ought to have challenged the order for prohibiting the Single Bench to hold an enquiry in the domain of the Governmental Authority to deal with the grievance qua election but permitted the court to examine the records. On examination of the records, the court prima facie found following irregularities mentioned in tabular form. |Respondent|Member|Name|Remarks| |---|---|---|---| |No.|No.||| |7|A6111|Anil Prasad|Became a member on 8.11.2012.| ||||ID was issued on 7.1.2021. The| ||||address and the signautres difer| ||||in the share register and the 6B| ||||register.| |8|A7942|Joseph A.V.|Became a member on 18.12.2015.| ||||ID is seen to be issued on| ||||30.12.2015. Register does not| ||||show the issuance of any ID card.| |9|A3201|Jose James|Membership is issued on| ||||17.7.2009 and ID Card is issued| ||||on 4.1.2011.| |10|A8851|Luka J.|Became a member on 15.10.2015.| ||||ID card says it was issued on| ||||19.11.2015. The register does not| ||||say the year of issuance of the ID| ||||Card, and there is no signature of| ||||the Secretary. There is also a| ||||diference in the signature in the| ||||share register.| |11|A2632|Vakkachan|Became a member on 29.9.2008.| |||Mannathali|The entry in the card says that it| ||||was Issued on 6.12.2019. The| ||||register shows ID card was issued| ||||on 5.12.2014.| W.A.No.228 of 2024 13 |12|15790|Sudharman K.M.|Became a member on 6.2.1990.| |---|---|---|---| ||(KK1042)||As per the book and the card, ID| ||||card was issued only on| ||||10.12.2010. The signatures In| ||||registers difer.| |13|A8178|Surendranatha|Became a member on 27.1.2016.| |||Kaimal|ID is seen to have been issued on| ||||5.1.2021. There is no| ||||corresponding entry in the 6B| ||||register.| |14|A2962|Annamma Raja|The share register says she| ||||became a member on 2.3.2009.| ||||As per the ID card, the| ||||membership was Issued on| ||||3.2.2009. The card shows that it| ||||was issued on 15.10.2011. There| ||||is no signature in the share| ||||register.| |15|A2383|Babumol Shaji|Became a member on 19.3.2008.| ||||The share register says ID card| ||||was issued on 7.1.2021. There is| ||||no signature in the book against| ||||the column. There is also no| ||||corresponding entry in the Form| ||||6B register.| |16|A2190|Saly Babu|Became a member on 20.11.2007.| ||||The share register and the 6B| ||||register show ID card was issued| ||||on 20.12.2010.| |17|29530|K.P. Bhaskaran|Became a member on 23.07.2004.| ||||ID card is Issued on 26.12.2020 as| ||||per the register and the card.| ## 17. Rule 35A(6)(n)(ix) of KCS Rules reads as under:- _“_ _**35A. Procedure regarding conduct of election to the committee of Societies by the State Co-operative Election Commission.** The_ W.A.No.228 of 2024 14 _election of the members to the committee of Societies by the State Co-operative Election Commission shall be conducted in the following manner:_ _xxx xxx xxx_ ## _**(6)(n) Arrangements in Polling Station:**_ _xxx xxx xxx_ _(ix) No ballot paper shall be issued to a member unless he produces his identity card and any one of the documents mentioned in the explanation and the polling officer is satisfied that member concerned is the same person, as noted in the voters list, furnished to him. When a ballot paper is issued the serial number of the ballot paper will be noted against the name of the member in voters list. On receipt of such ballot paper the member shall proceed to the polling compartment apart for the purpose and indicate the person or persons in whose favour he exercises his vote by incribing a mark (x) against the name of the candidate or candidates, as the case may be, put the ballot paper in the ballot box, kept for the purpose with utmost secrecy. If owing to blindness or other physical infirmity or illiteracy, a member is unable to inscribe the mark on the ballot paper, the polling officer or the Returning Officer shall allow the companion of the voter to exercise his vote as instructed by the voter. Before allowing the companion to vote on behalf of the voter the presiding officer should get a declaration from the_ W.A.No.228 of 2024 15 _companion in Form No. 38 (Appendix II)._ _Explanation.-_ - _(i) Identity Card issued by the Election Commission of India;_ - _(ii) Unique Identification Card "Aadhar Card";_ - _(iii) Ration Card;_ - _(iv) Driving Licence;_ - _(v) Identity Card issued by the Employer;_ - _(vi) PAN Card; and_ - _(vii) Any other identity card notified by the State Co-operative Election Commission"._ 18. On perusal of the above, Presiding Officer has the power to direct any voter being a member of the society to produce other identity cards than the one issued by the society for the purpose of holding of the elections, like identity card issued by the Election Commission, Aadhar Card, Ration Card, Driving licence, identity card issued by the employer, PAN card or any other identity card notified by the State Co-operative Election Commission. Few of the members espoused their grievance being candidates and few other members who were not permitted to cast their vote on account of the allegation that the identity cards W.A.No.228 of 2024 16 produced by them do not have the corresponding entry in the Form-B register, could have been asked to produce the other documents for the purpose of fair and smooth election. However, the Presiding Officer did not record any satisfaction nor complied with the aforementioned provisions of the Rule. 19. Law with regard to the interference in the election process by a writ court is no longer res integra in view of the recent decision by the Supreme Court in **Union Territory of Ladakh & Ors. v. Jammu and Kashmir National Conference & Anr.** [2023 SCC OnLine SC 1140] wherein it has been held that courts are though prohibited to interfere in election matters but court cannot shut their eyes for lifting the veil and find whether the procedure adopted or the reasoning assigned for not permitting to cast their vote was justiciable or not. Noticing the aforementioned grounds, we are in agreement with the findings rendered by the Single Bench on the premise that the Presiding Officer ought to have resorted to the provisions of the Rule as indicated W.A.No.228 of 2024 17 above. Thus, we do not find any illegality and perversity in the judgment rendered by the Single Bench for holding the elections. No ground for interference is made out. Writ appeal is dismissed. Sd/- **AMIT RAWAL JUDGE** Sd/- **C.S. SUDHA JUDGE** skj