Venugopalan Nair G vs The State Of Kerala
2021 Latest Caselaw 1782 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

             THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

                                   &

               THE HONOURABLE MR. JUSTICE K.HARIPAL

     MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                           WA.No.130 OF 2021

 AGAINST THE ORDER/JUDGMENT IN WP(C) 484/2021(I) OF HIGH COURT OF
                              KERALA


APPELLANTS/PETITIONERS:

      1      VENUGOPALAN NAIR G.,
             AGED 56 YEARS,
             S/O GOPINATHAN NAIR,
             VANIYAM VILAKAM, KOONTHALUR,
             CHIRAYINKEEZH P.O., TRIVANDRUM-695 304.

      2      HAREESH BABU K.H.,
             S/O HARIJAYAN K.,
             KOCHUVILA VEEDU, KOONTHALUR,
             CHIRAYINKEEZH P.O., TRIVANDRUM-695 304.

      3      TOMY,
             S/O SASIDHARAN,
             VATTAVILA VEEDU, KOONTHALUR,
             CHIRAYINKEEZH P.O., TRIVANDRUM-695 304

      4      VIGNESH HARIJAYAN,
             S/O HARIJAYAN,
             THENNUVILAKAM, KOONTHALUR,
             CHIRAYINKEEZH P.O., TRIVANDRUM-695 304

             BY ADVS.
             SRI.N.NANDAKUMARA MENON (SR.)
             SRI.P.K.MANOJKUMAR
             SMT.SMITHA S.PILLAI
             SMT.ALICE THOMAS
             SMT.M.C.SINY

RESPONDENTS/RESPONDENTS:

      1      THE STATE OF KERALA,
             REP.BY THE SECRETARY TO GOVERNMENT,
             CO-OPERATION DEPARTMENT,
             SECRETARIAT, THIRUVANANTHAPURAM-695 001.
 Writ Appeal No. 130 of 2021

                              2


      2      THE REGISTRAR OF CO-OPERATIVE SOCIETIES,
             CHIRAYINKEZH, THIRUVANANTHAPURAM-695 304.

      3      THE ELECTORAL OFFICER/ASSISTANT REGISTRAR,
             ATTINGAL P.O., THIRUVANANTHAPURAM-695 304.

      4      KIZHUVALLAM SERVICE CO-OPERATIVE BANK LIMITED
             NO.2405,
             CHIRAYINKEEZH, THIRUVANANTHAPURAM 695 304,
             REP.BY ITS SECRETARY.

      5      STATE CO-OPERATIVE ELECTION COMMISSION,
             THIRUVANANTHAPURAM, II ND FLOOR, CO-BANK TOWERS,
             VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033.

             R1-3 BY SRI. REMIL ANTO KANDANKULATHY GP

             R4 BY SRI. T.R. HARIKUMAR STANDING COUNSEL

             R5 BY SRI. R. LAKSHMI NARAYAN SC FOR ELECTION
             COMMISSION


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Writ Appeal No. 130 of 2021

                                          3



                                    JUDGMENT

Ravikumar, J.

This appeal is preferred against the judgment dated

12-01-2021 in W.P.(C) No. 484/2021 by the petitioners therein. The

appellants have filed the said writ petition seeking the following

reliefs:-

" i. To issue a writ of mandamus or other appropriate writ order or direction directing the third respondent to consider Exhibit-P2, P3 and P6 objections filed by the petitioners to the preliminary voters list published by the third respondent on the basis of Exhibit-P1 notification for conducting election to the Managing Committee of the 4th respondent Society scheduled to be held on 07-02-2021;

ii. To issue a writ of mandamus or other appropriate writ order or direction directing the 3rd respondent to consider Exhibits-P2,P3 and P6 objections filed by the petitioners to the preliminary voters list after affording to the petitioners an opportunity of being heard and before the final voters list is published as per Exhibit-P1 notification;"

The impugned order would reveal that the Standing Counsel for the

Election Commission, based on instructions, submitted before writ

Court as hereunder :-

"When the matter was taken up, it was submitted by the learned standing counsel for the election commission Writ Appeal No. 130 of 2021

that, representations submitted by the petitioners were taken up on 08-01-2021 and after hearing them, the applications were dismissed. It was submitted by the fourth respondent that petitioners were present in person and they were also heard before the orders were passed."

2. It is the submission of the learned senior counsel

appearing for the appellants that Annexure-1 dated 13-01-2021 filed

by the appellant before the Electoral Officer and his failure to

respond to Annexure-1, by providing the allegedly passed order

would reveal that the submission made before this Court was not

correct and that such submissions were made only to mislead the

writ Court and the representation submitted by the appellants were

neither taken up on 08-01-2021 nor dismissed vide separate orders.

3. Heard the learned senior counsel for the appellants,

learned Standing Counsel appearing for the Election Commission,

learned Standing Counsel for the 4th respondent Bank as also the

learned Government Pleader.

4. According to the appellants, Annexure-2 itself would

reveal that in the case on hand without any change in the

preliminary voters list the final list was published only with change

in the caption of the list. Furthermore, it is contended that the Writ Appeal No. 130 of 2021

submissions made before this Court by the Standing Counsel for the

Election Commission, as extracted in para 3 of the impugned

judgment, are totally incorrect and that they were made with a view

to mislead the Court. It is to substantiate the said contention that

the petitioners produced Annexures-1 and 2 and according to them

a conjoint reading of those Annexures coupled with the fact that

Annexure-1 is yet to be replied would suggest that no order was

passed on the representations before finalizing the preliminary

voters list.

Upon hearing the learned counsel on both sides, we are

of the view that this Court cannot presume that the submissions

before the learned Single Judge as extracted in paragraph 3 of the

impugned judgment were incorrect solely because of the failure on

the part of the Electoral officer to respond to Annexure-1, in view of

the fact that a final voters list was, admittedly, published. However,

taking note of the submission by the learned senior counsel that

virtually by making such submissions, as is evident from para 3 of

the impugned judgment, the writ Court was misled and the incorrect

submission made on behalf of the Election Commission, as revealed

from para 3 of the impugned judgment, is the basis for dismissal of Writ Appeal No. 130 of 2021

the writ petition, we are of the view that the appellants can be left

with liberty to work out their remedy in case they still hold such a

view, appropriately and in accordance with law. We make it clear

that we have not interfered with the directions in the impugned

judgment.

With the said observation and such liberty this writ

appeal stands disposed of.

Sd/-

C.T.RAVIKUMAR JUDGE

Sd/-

                                                 K.HARIPAL
                                                   JUDGE



SSK/18/01              //True copy//              P.A. to Judge
 Writ Appeal No. 130 of 2021





                          APPENDIX
PETITIONERS' EXHIBITS:


ANNEXURE I           THE PHOTOSTAT COPY OF THE PETITION DATED

13.1.2021 SUBMITTED BY THE SECOND APPELLANT BEFORE THE ELECTORAL OFFICER/ASSISTANT REGISTRAR, ATTINGAL P.O.

ANNEXURE II THE PHOTOSTAT COPY OF THE TRUE EXTRACT OF THE FINAL VOTERS LIST PUBLISHED BY THE THIRD RESPONDENT DATED 11.1.2021.