Adv. Rajesh Kumar C vs State Co-Operative Election ...
2023 Latest Caselaw 11394 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR.JUSTICE BASANT BALAJI

 WEDNESDAY, THE 8TH DAY OF NOVEMBER      2023 / 17TH KARTHIKA, 1945

                       W.P.(C) NO.36914 OF 2023


PETITIONERS:

         ADV. RAJESH KUMAR C., AGED 51 YEARS,
         CANDIDATE, THIRUVALLA PRIMARY CO-OPERATIVE AGRICULTURAL
         AND RURAL DEVELOPMENT BANK LTD., NO.A159, THIRUVALLA,
         PATHANAMTHITTA DISTRICT - 689 101,
         RESIDING AT SREEVILASAM, CHATHANKERI, THIRUVALLA,
         PATHANAMTHITTA DISTRICT, PIN - 689 101.

         BY ADVS.
         NISHA GEORGE
         GEORGE POONTHOTTAM (SR.)
         ANSHIN K.K


RESPONDENTS:

    1    STATE CO-OPERATIVE ELECTION COMMISSION,
         3RD FLOOR, CO BANK TOWERS, VIKAS BHAVAN P.O.,
         THIRUVANANTHAPURAM, PIN - 695 033,
         REPRESENTED BY ITS SECRETARY.

    2    THE ELECTORAL OFFICER,
         ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,
         THIRUVALLA, PATHANAMTHITTA DISTRICT - 689 101,
         ELECTION TO THE THIRUVALLA PRIMARY CO-OPERATIVE
         AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD., NO.A159,
         THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN - 689 101.

    3    THE RETURNING OFFICER AND OFFICE INSPECTOR,
         OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE
         SOCIETIES, THIRUVALLA PRIMARY CO-OPERATIVE AGRICULTURAL
         AND RURAL DEVELOPMENT BANK LTD., NO.A159, THIRUVALLA,
         PATHANAMTHITTA DISTRICT, PIN - 689 101.

    4    THE SUPERINTENDENT OF POLICE,
         PATHANAMTHITTA, PIN - 689 645.
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W.P.(C) No.36914/2023



     5       DEPUTY SUPERINTENDENT OF POLICE,
             THIRUVALLA, PATHANAMTHITTA, PIN - 689 101.

     6       THE CIRCLE INSPECTOR OF POLICE,
             THIRUVALLA POLICE STATION, THIRUVALLA,
             PATHANAMTHITTA, PIN - 689 101.

     7       THE DISTRICT COLLECTOR,
             PATHANAMTHITTA DISTRICT, PIN - 689 645.

     8       THIRUVALLA PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL
             DEVELOPMENT BANK LTD. NO.A159,
             THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN - 689 101,
             REPRESENTED BY ITS SECRETARY.

             GOVERNMENT PLEADER, SRI.SREEJITH V.S

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.P.(C) No.36914/2023




                                         JUDGMENT

(Dated: 8th November, 2023)

The petitioner is a candidate in the election to the managing committee

of the 8th respondent society. The election to the society is to be held on

12.11.2023. The bank has more than 11,000 eligible voters within the area of

operation of the bank. It is a common practice resolved by the party members

of the ruling party that the members outside the area of the co-operative

society are brought to cast votes in the election of the societies. For the last

25 years, there was no contest in the election to the managing committee of

the 8th respondent bank. In the present election, there are contesting

candidates. The method adopted is to bring people from outside, and with

the support of the polling officers, they are allowed to cast votes.

2. The petitioner points out in the writ petition that in the election

of the managing committee to Thiruvalla East Co-operative Bank, an Advocate

Commissioner was appointed by this court to observe the election, and he

filed a commission report on 03.12.2021. In a similar line in W.P.(C) No.23453

of 2023, another Advocate Commission was appointed, and the report was

W.P.(C) No.36914/2023

filed on 03.08.2023. It is stated that a reading of Exts.P2 and P3 would show

that there were instances of bogus voting, impersonation, etc. The petitioner

apprehends that the said bogus voting and impersonation will also happen in

the election to be conducted on 12.11.2023. It is also submitted that even

though more than 11,000 members are in the society, only less than 3,000

members have taken the identity cards. There is an allegation against the

returning officer and the electoral officer that they are acting arbitrarily and

favouring the ruling party candidates.

3. Therefore, the petitioner approached the Superintendent of

Police, Pathanamthitta, and submitted a report for adequate steps for

providing police protection for the polling till the counting and the declaration

of results through Ext.P4. A similar request was submitted to the 5th and 6th

respondents. The petitioner points out that in respect of the election to the

managing committee of Thodupuzha Primary Co-operative Agricultural and

Rural Development Bank Ltd., a candidate has approached this court by filing

W.P.(C)No.15659 of 2022, seeking police protection and the appointment of

Advocate Commissioner and this court has granted police protection and

appointed an Advocate Commissioner. The Division Bench of this Court in

W.P.(C) No.36914/2023

W.A.No.92 of 2022 had directed the Director General of Police to cause an

enquiry through an officer at the appropriate level to find out the officers who

are responsible for not taking effective steps for compliance with the

directions issued by this Court in W.P.(C) No.15659 of 2022. In the said

circumstances, the petitioner has submitted a request before respondents 2

and 3 for installing CCTV cameras at the entrance of the polling station so as

to identify the persons coming to vote, since non-members are not entitled

to enter the compound where the election was conducted. It is also

submitted that video graphing each voter's identity and verification of the

Form-6A identity card with the 6B register will definitely check the

impersonation of the voters. The request is produced as Ext.P10, but no steps

have been taken by respondents 2 and 3 in this regard. Therefore, he has

approached this court seeking police protection for the conduct of the

election to the managing committee on the date of polling till the declaration

of results. The 2nd prayer is sought, for installing CCTV cameras at the entrance

of the polling station and to video graph the entire polling process conducted

on 12.11.2023, till the declaration of results. The 3rd prayer is to issue a writ

of mandamus directing the returning officer and District Collector to ensure

W.P.(C) No.36914/2023

verification of identity cards, especially Aadhar cards, using the devices

available to verify the genuineness of the said card, so also Form-6A card with

reference to the register maintained by the society scruples before allowing

the person to cast his/her vote in the polling station.

4. Learned standing counsel for the 1st respondent submits that the

1st respondent, as well as the 3rd respondent, have already taken

precautionary measures to see that the election to the managing committee

of the 8th respondent bank is done in a democratic way. Respondents 4 to 6,

through the Government Pleader, had submitted that necessary police

protection could be given on the polling day for the smooth conduct of the

election and to prevent untoward incidents.

5. As regards the bogus voting and impersonation, the learned

standing counsel for the 1st respondent submits that there would be polling

officers in the booth and the agent of each candidate is at the polling station,

and if at all there is any dispute regarding the identity of any person, the

polling officer is authorised and directed to verify the identity with 6A identity

card issued with the 6B register wherein the photograph of the voter is

W.P.(C) No.36914/2023

affixed. He also submits that verifying each voter is not practicable and only

when there is a challenge regarding the identity can the same be done.

6. The bank issues 6A identity cards to each voter and a

corresponding register is kept by the bank as a 6B register noting the name

and details of the voter with the photograph of the voter. Suppose there is

any challenge to the identity of any voter who comes to the polling booth to

cast the vote. In that case, the polling officer is authorised/empowered by the

returning officer to verify the identity of the voter with a 6A identity card as

well as a 6B register. Moreover, the entire election process right from polling

till the declaration, can be video graphed at the expense of the petitioner. This

will prevent bogus voting and impersonation as the CCTV footage would be a

record of the same. It is a fact that in an election, there would be some kind

of disturbance either from the voter or from the other persons who are

supporting each candidate. Therefore, taking note of this fact, this Court has

already issued orders granting police protection to various elections to the

managing committees of Co-operative Societies and banks and also to video

graph the entire election process from the polling till the declaration of the

result the petitioner is also entitled to the same treatment.

W.P.(C) No.36914/2023

7. The question of whether an observer/an Advocate

Commissioner is to be appointed to oversee the election, has been a subject

matter of Writ Appeal No.1729 of 2023, and the Division Bench of this Court

has held as follows:

8. In M/s. Larsen and Toubro Ltd. v. State of Gujarat [(1998) 4 SCC 387] the Apex Court was dealing with a case arising out of the proceedings initiated for the acquisition of land for M/s. Larsen and Toubro Ltd. under the provisions of the Land Acquisition Act, 1894. The Apex Court noticed that in the absence of any allegation that Rule 3 of the Land Acquisition (Companies) Rules, 1963 had not been complied with and there being no particulars in respect of non-compliance of Rule 4, it is difficult to see as to how the High Court could have reached the finding that statutory requirements contained in these Rules were not fulfilled before issuance of notification under Section 4 and declaration under Section 6 of the Land Acquisition Act. High Court did not give any reason as to how it reached the conclusion that Rules 3 and 4 had not been complied with in the face of the record of the case. Rather, it returned a finding which is unsustainable that it was "not possible on the basis of the material on record to hold that there was compliance with Rules 3 and 4". The Apex Court held that it is not enough to allege that a particular Rule or any provision has not been complied with. It is a requirement of good pleading to give details, i.e., particulars as to why it is alleged that there is non-

compliance with a statutory requirement. Ordinarily, no notice can be taken on such an allegation which is devoid of any particulars. No issue can be raised on a plea, the foundation of which is lacking. Even where rule nisi is issued, it is not always for the department to justify its action when the court finds that a plea has been advanced without any substance, though ordinarily department may have to place its full cards before the court. On the facts of the case, the Apex Court found that the State has more than justified its stand that there has been compliance not only with Rule 4 but with Rule 3 as well, though there was no challenge

W.P.(C) No.36914/2023

to Rule 3 and the averments regarding non-compliance with Rule 4 were sketchy and without any particulars whatsoever. High Court was, therefore, not right in quashing the acquisition proceedings.

In view of the said observations and the findings of the Division Bench, I am

of the opinion that an observer /Advocate Commissioner is not warranted in

view of the submissions of the 1st and 4th respondent recorded by this court.

Therefore, the writ petition is disposed of directing respondents 4 to 6

to deploy sufficient police force and to afford adequate police protection to

the voters, the polling booths, and its premises during the day of polling to

the managing committee of the 8th respondent Society, scheduled to be held

on 12.11.2023 at Thiruvalla, M.G.M.L.P. School, till the declaration of results.

It is also ordered that the 3rd respondent shall make arrangements to install

CCTV cameras at the entrance of the polling station and take videography of

the entire polling process till the declaration of the results in the premises

without hindering the secrecy of the polling at the expense of the petitioner.

It is also made clear that in the event of any dispute as to the identity

of any person, the 3rd respondent and the polling officer shall verify the

W.P.(C) No.36914/2023

genuineness of the card issued in Form-6A with the 6B register maintained at

the bank to prove the identity.

With the above observation, the writ petition is allowed in part.

Sd/-

BASANT BALAJI, JUDGE

ss

W.P.(C) No.36914/2023

APPENDIX OF WP(C) 36914/2023

PETITIONER EXHIBITS:

Exhibit-P1 TRUE COPY OF THE AMENDED ELECTION NOTIFICATION BEARING NO.E(2)5737/2023/S.C.E.C DATED 01.11.2023 ISSUED BY THE 1ST RESPONDENT ELECTION COMMISSION.

Exhibit-P2 TRUE COPY OF ADVOCATE COMMISSIONER REPORT DATED 03.12.2021 FILED BEFORE THIS HON'BLE COURT IN W.P.(C) NO.26205 OF 2021.

Exhibit-P3 TRUE COPY OF THE ADVOCATE COMMISSIONER REPORT DATED 03.08.2023 FILED BEFORE THIS HON'BLE COURT IN W.P.(C) NO.23453 OF 2023.

Exhibit-P4 TRUE COPY OF THE REQUEST DATED 04.11.2023 SUBMITTED BY THE PETITIONER BEFORE THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA

Exhibit-P5 TRUE COPY OF THE RECEIPT DATED 06.11.2023 RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE SUPERINTENDENT OF POLICE

Exhibit-P6 TRUE COPY OF THE REQUEST DATED 04.11.2023 SUBMITTED BY THE PETITIONER BEFORE THE DEPUTY SUPERINTENDENT OF POLICE, THIRUVALLA.

Exhibit-P7 TRUE COPY OF THE RECEIPT DATED 05.11.2023 RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE

Exhibit-P8 THE PETITIONER SUBMITTED A COPY OF THE REQUEST FOR PROVIDING POLICE PROTECTION BEFORE THE CIRCLE INSPECTOR OF POLICE ALSO. TRUE COPY OF THE RECEIPT DATED 05.11.2023 RECEIVED BY THE PETITIONER FROM THE OFFICE OF THE CIRCLE INSPECTOR OF POLICE

Exhibit-P9 TRUE COPY OF THE ORDER DATED 16.06.2022 PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN W.A.NO.92 OF 2022

Exhibit -P10 TRUE COPY OF THE REQUEST DATED 06.11.2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND AND 3RD RESPONDENTS

W.P.(C) No.36914/2023

Exhibit-P11 COPY OF THE FIR IN CRIME NO 1163 OF 2021 OF POTHANIKKAD POLICE STATION, ERNAKULAM RURAL DISTRICT.

Exhibit -P12 COPY OF THE FIR IN CRIME NO 1164 OF 2021 OF POTHANIKKAD POLICE STATION, ERNAKULAM RURAL DISTRICT.

Exhibit -P13 COPY OF THE FIR IN CRIME NO 1165 OF 2021 OF POTHANIKKAD POLICE STATION, ERNAKULAM RURAL DISTRICT.

Exhibit -P14 COPY OF THE FIR IN CRIME NO 1166 OF 2021 OF POTHANIKKAD POLICE STATION, ERNAKULAM RURAL DISTRICT.

Exhibit-P15 TRUE COPY OF THE INTERIM ORDER DATED 19.10.2023 IN W.P(C)NO.34157 OF 2023 PASSED BY THIS HON'BLE COURT

Exhibit -P16 TRUE COPY OF THE INTERIM ORDER DATED 22.03.2023 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.10049 OF 2023.

Exhibit-P17 TRUE COPY OF THE INTERIM ORDER DATED 24.02.2023 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.6565 OF

Exhibit-P18 TRUE COPY OF THE ORDER NO.ARGTVLA/ELECTION/2023 DATED 06.11.2023 ISSUED BY THE ASSISTANT REGISTRAR (GENERAL) OF CO-OPERATIVE SOCIETIES, THIRUVALLA