Basheer M vs State Co- Operative Election ...
2023 Latest Caselaw 5787 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
                        WP(C) NO. 15386 OF 2023
PETITIONER/S:

    1     BASHEER M
          AGED 73 YEARS
          S/O.LATE. MEERASAHIB RAWTHER VARUVIL HOUSE,KAMPALADI
          PORUVAZHI P.O, KOLLAM DISTRIC T, PIN - 690520

    2     NAZARUDEEN .P
          AGED 49 YEARS
          S/O.LATE. PAREED RAWTHER KOLTHACHANAZHIKKAKATHU,
          KAMPALADY PORUVAZHY P.O, KOLLAM DISTRICT, PIN - 690520

          BY ADVS.
          V.PHILIP MATHEWS
          GIBI.C.GEORGE
          ABIYA MARIYAM MATHEW


RESPONDENTS:

    1     STATE CO- OPERATIVE ELECTION COMMISSIONER
          3RD FLOOR, CO-OPERATIVE BANK TOWERS, VIKAS BHAVAN P.O
          THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, PIN -
          695033

    2     DEPUTY DIRECTOR
          OFFICE OF THE DEPUTY DIRECTOR DIARY DEVELOPMENT
          DEPARTMENT KOLLAM,, PIN - 691081

    3     ELECTORAL OFFICER
          (DIARY EXTENSION OFFICER DIARY EXTENSION SERVICE UNIT
          SASTHAMKOTTA KOLLAM, PIN - 690520

    4     RETURNING OFFICER
          DIARY FARM INSTRUCTOR -B UNIT SASTHAMKOTTA, KOLLAM, PIN
          - 690520

    5     KAMPALADI KSHEEROLPADAKA SAHAKARANA SANGHAM NO. Q 262
          (D) APCOS
          KAMPALADY, PORUVAZHY P.O, KOLLAM DISTRICT REPRESENTED
          BY ITS SECRETARY, PIN - 690520
 W.P.(C)No.15386/2023                      2



       6          SECRETARY
                  KAMPALADI KSHEEROLPADAKA SAHAKARANA SANGHAM NO. Q 262
                  (D) APCOS KAMPALADY, PORUVAZHY P.O, KOLLAM DISTRICT,
                  PIN - 690520

       7          H.JALEEL
                  PALLIYADIYIL VADAKKU KAMPALADY, PORUVAZHY P.O, KOLLAM
                  DISTRICT, PIN - 690520

       8          RAVI
                  MOOLASSERIL KAMPALADI PORUVAZHY .P.O KOLLAM DISTRICT,
                  PIN - 690520

       9          SHAHIDA .S
                  W/O. SAHAL SAHAL NIVAS THAMARAKKULAM ALAPPUZHA
                  DISTRICT, PIN - 690530

       10         SHAHUL HAMEED
                  PLAVILAYIL KAMPALADI PORUVAZHY .P.O KOLLAM DISTRICT,
                  PIN - 690520

       11         FAZEELA
                  PARAMPILE VILA KAMPALADI PORUVAZHY .P.O KOLLAM
                  DISTRICT, PIN - 690520

       12         SUBAIR KUTTY
                  PARAMPILE VILAYIL KAMPALADI PORUVAZHY .P.O KOLLAM
                  DISTRICT, PIN - 690520

       13         SULAIMAN RAWTHER
                  NJERINJAM PLAVILA KAMPALADI PORUVAZHY .P.O KOLLAM
                  DISTRICT, PIN - 690520

                  BY ADVS.
                  P.N.MOHANAN
                  C.P.SABARI(K/973/2010)
                  AMRUTHA SURESH(K/000971/2016)
                  GILROY ROZARIO(K/399/2021)

                  SRI.C.M. NAZAR (SC)


THIS       WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
24.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.15386/2023                           3

                                       JUDGMENT

The petitioners have approached this Court contending inter alia that a

draft voters list has been published for conducting elections to the 5 th

respondent Society by including several ineligible persons like respondents 7

to 13. It is also contended that the objections filed to the draft voters list has

not been adjudicated properly and without furnishing any proceedings

regarding adjudication of the objections, a final voters list was proposed to be

published on 6.5.2023, prompting the petitioners to approach this Court by

filing the above writ petition on 4.5.2023. This Court, on 5.5.2023 issued the

following order:-

"S.C. Appears for R1. G.P. for R2. Urgent notice by speed post to R3 to R13 returnable in 10 days.

Post on 16/5/23. Till then, there will be an interim order directing R3 to issue copy of the order stated to be passed by him, based on the hearing on 4/5/23 against the objections on Ext.P3, within a period of one week from today, which shall not be enforced or implemented for a period of 10 days from today.

Needless to say, final voters list should not be published till the afore directions are complied with."

2. The 6th respondent has filed a counter affidavit contending that

the decision of the Electoral Officer on the objections raised to the draft voters

list was issued to all concerned as is evident from Ext.R6(a). It is also

contended that the preparation of electoral role is an intermediate stage in the

process of election to the managing committee of a Co-operative Society. It is

submitted that the election should be permitted to go on and no interference

can be made at this stage with the election process under Article 226 of the

Constitution of India. It is submitted that if the petitioners have any

grievance regarding the final voters list and the inclusion of ineligible persons

in that list, it is for the petitioners to avail the remedies open to them under

the Kerala Co-operative Societies Act, 1969 after the elections have been

completed and the results have been declared.

3. The learned counsel appearing for the petitioners would contend

that the deponent of the counter affidavit, who claims to be the Secretary of

the 6th respondent Society is not even eligible to continue as Secretary of the

Society and therefore, the contentions in the counter affidavit must be

completely ignored.

4. The learned counsel appearing for the 6 th respondent also refers to

the judgment of this Court in W.P.(C)No.8955/2023 to contend that the

question as to whether the ineligible persons have been included in the final

voters list is a matter to be adjudicated in a properly constituted election

petition and not through a writ petition under Article 226 of the Constitution

of India.

5. Heard the learned counsel appearing for the State Co-operative

Election Commission also. The learned counsel appearing for the State Co-

operative Election Commission also supports the contentions taken by the

learned counsel appearing for the 6 th respondent and states that the question

as to whether any ineligible persons have been included in the final voters list

is a matter to be adjudicated through an election petition and not through a

writ petition under Article 226 of the Constitution of India.

6. Having heard the learned counsel appearing for the petitioners,

the learned counsel appearing for the State Co-operative Election

Commission and the learned counsel appearing for the 6 th respondent, I am of

the view that there is considerable merit in the contentions taken by the

learned counsel for the 6th respondent and the learned counsel for the State

Co-operative Election Commission that the question as to whether any

ineligible persons have been included in the final voters list prepared for the

election to the managing committee of the 6 th respondent Society is a matter

that cannot be adjudicated under Article 226 of the Constitution of India. In

my judgment in W.P.(C)No.8955/2023, I had held as follows:-

7. The next question to be considered is the complaint raised regarding the voter's list. The petitioner has a complaint that a copy of the preliminary voter's list was not supplied to him. A reading of the bye- laws does not suggest that the petitioner is entitled to a copy of the preliminary voter's list. Rule 35A (4) of the Rules does not provide that a copy of the preliminary voter's list must also be supplied on request. The judgment of this Court in Bhaskaran Pillai. K. (supra) indicates that the preliminary list of voters needs to be published by affixture on the Notice Board of the Society alone. The other complaints regarding the inclusion of ineligible persons, including members allegedly given membership by the Administrator, the inclusion of dead persons etc. are clearly matters which cannot be adjudicated at this stage in a writ petition under Art. 226 of the Constitution of India. In Shri Sant Sadguru Janardan Swami (supra), it was held:-

"12. In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified society and the election process having been set in motion, it is well settled that the High Court should not stay the

continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate, if aggrieved, by means of an election petition before the Election Tribunal."

The judgment of the Supreme Court Shri Sant Sadguru Janardan Swami (supra) and the decisions of this Court in Ajith Kumar and others (supra) and Denny V.P, (supra) clearly indicate that the complaints regarding the voter's list can only be adjudicated in a duly constituted election petition as contemplated by the provisions of the Act/Rules.

The judgment in W.P.(C)No.8955/2023 has been affirmed by a Division

Bench of this Court through judgment dated 12.4.2023 in W.A.No.783/2023.

The Division Bench also takes the view that the complaints regarding voters

list can be raised only through a duly constituted election petition and not in a

writ petition under Article 226 of the Constitution of India. Though the

learned counsel appearing for the petitioners would submit that the

petitioners have filed an application for amendment also raising a challenge

to Ext.R6(a), I am of the view that since that order also pertains to the

adjudication of objections raised regarding the draft voters list, the same

cannot be a matter for adjudication in a writ petition under Article 226 of the

Constitution of India. For all these reasons, the writ petition fails and it is

accordingly dismissed making it clear that the dismissal of this writ petition

will not prevent the petitioners from seeking appropriate remedies against the

inclusion of ineligible persons in the final voters list through a duly

constituted election petition under the provisions of the the Kerala Co-

operative Societies Act, 1969. The State Co-operative Election Commission

shall take steps to complete the process of election as expeditiously as

possible after publishing a final voters list in accordance with rules.

sd/-

GOPINATH P.

JUDGE acd

APPENDIX OF WP(C) 15386/2023

PETITIONER EXHIBITS

Exhibit P 1 COPY OF THE COMMUNICATION DATED 7.3.23 FROM THE SECOND RESPONDENT TO SHAJI NAVAS ALONG WITH REPORT OF DIARY EXTENSION OFFICER ,SASTHAMCOTTA

Exhibit P 2 COPY OF ELECTION NOTIFICATION NO. E. (1) 1644/2023/ S.C.E.C THIRUVANANTHAPURAMDATED 4.4.2023 ISSUED BY THE FIRST RESPONDENT

Exhibit P 3 COPY OF THE DRAFT VOTERS LIST FOR ELECTION TO FIFTH RESPONDENT SOCIETY DATED NIL PREPARED BY SECRETARY AND PRESIDENT

Exhibit P 4 COPY OF THE REPRESENTATION DATED 10.2.23 FROM VARUVIL SHAJI TO DIARY EXTENSION OFFICE SASTHAMCOTTA

Exhibit P 5 COPY OF REPRESENTATION DATED 13.2.23 FROM JALEEL TO THE DIARY EXTENSION OFFICER, SASTHAMCOTTA

Exhibit P 6 COPY OF THE OBJECTION DATED 27.4.23 SUBMITTED BY FIRST PETITIONER TO THE THIRD RESPONDENT

Exhibit P 7 COPY OF THE OBJECTION DATED NIL SUBMITTED BY SECOND PETITIONER TO THE THIRD RESPONDENT

Exhibit P 8 COPY OF THE OBJECTION DATED NIL BY SUMA AGAINST DRAFT VOTERS LIST

Exhibit P 9 COPY OF OBJECTION DATED NIL AGAINST DRAFT VOTERS LIST BY SHAJI NAVAS

RESPONDENT EXHIBITS

Exhibit R6(a) True copy of the order dated 09.05.2023 passed by the Electoral Officer on the draft voters list.

Exhibit R6(b) True copy of the judgment reported in AIR (2001) SC 3982.

PETITIONER EXHIBITS

Exhibit P10 COPY OF LETTER NO.149/2023 DT. 9.5.2023 ISSUED BY THE THIRD RESPONDENT

Exhibit P 11 Copy of the Order No. DDKLM/112/2023-A5 Kollam dated 15.5.23 by the second respondent