IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 WP(C).No. 28311 of 2007(U) ------------------------------------ PETITIONERS: ---------------- 1. M.V.RAGHAVAN (MEMBERSHIP NO.1) FORMER MINISTER FOR CO-OPERATION AND PORTS, GOVERNMENT OF KERALA,RESIDING AT MELATHIL VEETTIL BURNASSERRY, KANNUR. 2. C.T.AHAMMEDALI (MEMBERSHIP NO.187) FORMER MINISTER ,STATE OF KERALA C/O.MUSLIM LEAGUE COMMITTEE OFFICE, KASARAGOD. 3. PATIYAM RAJAN (MEMBERSHIP NO.9) FORMER MEMBER OF PARLIAMENT, PATHAYAKUNNU P.O.,THALASSERY,KANNUR. 4. SUMA BALAKRISHNAN (MEMBERSHIP NO.486) KUSUMAN,KAPPAD P.O., KANNUR. 5. P.P.LAKSHMANAN (MEMBERSHIP NO.168) ROHINI, KANNUR. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENTS: ---------------------- 1. THE RETRUNING OFFICER, ASSISTANT REGISTRAR (PLANNING) KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO.4386, PARIYARAM,KANNUR. 2. THE DISTRICT COLLECTOR,KANNUR. 3. THE KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO.4386,PARIYARAM,KANNUR,REPRESENTED BY ITS MANAGING DIRECTOR. W.P.(C) NO.28311/2007 4. THE INSPECTOR GENERAL OF POLICE, NORTHERN RANGE, KERALA STATE. 5. T.K.GOVINDAN, CHAIRMAN, KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD NO.4386, PARIYARAM,KANNUR. 6. T.KUMARAN, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. 7. S.V.G.PADMANABHAN, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. 8. N.V.KUTTIKRISHNAN, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. 9. P.D.CHACKO, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. 10. K.P.JAYAPALAN, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. 11. S.RAJENDRANATH PAI, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. 12. KARAKAPURAYIL SASIDHARAN, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. W.P.(C) NO.28311/2007 13. K.SHAMBU EMBRANDHRI, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. 14. M.SADASIVAN, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. 15. C.V.GOWRI NAMBIAR, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. 16. V.KARUNAN, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. 17. M.NARYANAN, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. 18. K.M.ASHRAF, MEMBER,MANAGING COMMITTEE OF KERALA STATE CO-OP.HOSPITAL COMPLEX AND CENTRE AND CENTRE FOR ADVANCED MEDICAL SERVICES LTD.NO. 4386,PARIYARAM,KANNUR. R1 & R2 SR. GOVERNMENT PLEADER SRI.K.K.RAVEENDRANATH R3 BY ADV. SRI.P.V.SURENDRANATH R4 BY ADV. GENERAL SRI.C.P.SUDHAKARA PRASAD R5,R6, R9, R16 TO R118 BY ADV. SRI.M.SASINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2008, ALONG WITH WPC NO. O. 28769 OF 2007 AND CONNECTED CASES THE COURT ON 11/04/2008 DELIVERED THE FOLLOWING: W.P.(C) NO.28311/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ARREST MEMO OF THE KANNUR TOWN POLICE STATION TO THE IST PETITIONER DT. 23.9.07. EXT.P2:- COPY OF THE ARREST MEMO OF THE KANNUR TOWN POLICE STATION TO THE 2ND PETITIONER DT. 23.9.2007. EXT.P3:- COPY OF THE ARREST MEMO OF THE KANNUR TOWN POLICE STATION TO THE 3RD PETITIONER DT. 23.9.07. EXT.P4:- COPY OF THE ARREST MEMO OF THE KANNUR TOWN POLICE STATION TO THE 4TH PETITIONER DT. 23.9.07. EXT.P5:- COPY OF THE COMMUNICATION DT. 21.9.07 FROM THE 3RD RESPONDENT TOI SRI.SUDHAKARAN. EXT.P5:- COPY OF THE PHOTOGRAPHS SHOWING THE REAL VOTERS HOLDING IDENTITY CARDS RESPONDENT'S EXHIBITS EXT.R1(a):- COPY OF THE LETTER SIGNED BY THE RETURNING OFFICER AND THE MANAGING DIRECTOR. EXT.R4(a):- COPY OF THE POLICE BUNDOBAST ARRANGEMENTS MADE BY THE 4TH RESPONDENT. EXT.R4(b):- COPY OF THE PROCEEDINGS NO.A6-43051/06 DT. 22.9.07. EXT.R4(c):- COPY OF THE ROUGH SKETCH PREPARED (NOT TO SCALE) SHOWING THE POSITION OF THE POLLING BOOTHS ETC. EXT.R4(d):- COPY OF THE FIR REGISTERED AT KANNUR TOWN POLICE STATION. /TRUE COPY/ P.S. TO JUDGE tss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = WP(C).Nos.28311/2007-U, 28390/2007-D, 28769/2007-Y, 28863/2007-J, 29155/2007-U & 29510/2007-K = = = = = = = = = = = = = = = = = = = = = = = = Dated this the ----th day of March, 2008. JUDGMENT 1.These writ petitions are filed seeking a declaration that there was no election in terms of law and the proceedings of 23-9-2007, as the election to the Board of Directors of the Kerala State Co-operative Hospital Complex and Centre for Advanced Medical Services Ltd. No.4386 is void. An order was issued on 19-10-2007 during the course of these writ petitions which fell for consideration before the Division Bench in W.A.No...... and connected cases which were disposed of holding that the views expressed therein are prima facie and the matter could be disposed of finally after hearing the parties. WP(C)28311/07 & con case. -: 2 :- 2.The election in question is governed by the procedure prescribed in Rule 35 of the Kerala Co-operative Societies Rules, 1969, hereinafter referred to as the “Rules”. 3.There are two constituencies, (1) ordinary members and (2) nominated members. WP(C). Nos.28311 and 28769 of 2007 are by the candidates in the constituency “ordinary members”. WP(C).29510 of 2007 is by three candidates in the nominated members constituency. WP(C).Nos.28390, 28863 and 29155 are by voters. 4.At least, two of these writ petitions are filed immediately on the date to succeed the declaration of the results of the election. The allegations in these writ petitions are almost similar. The society in question had been involved in different litigations regarding election. It was being administered by a committee of administrators. There were directions issued by this Court to hold WP(C)28311/07 & con case. -: 3 :- elections. Election schedule was fixed and notification issued. Allegations were levelled by different groups charging the respective rivals of unlawful activities. Three writ petitions, WP(C).27753/2007 and connections were disposed of by the Division Bench on being satisfied that the Inspector General of Police has taken sufficient precautionary measures to see that the election to the society is held in a fair and free manner and electors would be in a position to participate in the election. No specific directions were found necessary and those writ petitions were disposed of making it clear that the Inspector General of Police, Northern Range, Kerala State will take all effective steps to see that the election to the society is held in a free and fair manner. 5.The petitioners allege that what is turned as the election held on 29-3-2007 is a farce and that the same is vitiated in as much as candidates, polling agents and voters with original identity cards were not even allowed to enter the venue while there were large number of WP(C)28311/07 & con case. -: 4 :- bogus voters and the police were under the political dictates and large spread vandalism of goondas had resulted in a vast majority of members with identity cards being deprived of opportunity to vote and bogus votes being cast under the protective cover of the police and other State machinery. 6.The petitioners in WP(C)28311/2007, who were candidates, state, in particular, that when the first among them along with several candidates and a large number of voters reached the venue at 8 a.m. they were shocked to see a long queue of more than 1000 persons and though there were much contingent? of police personnel, the plea of the first petitioner that many of the persons in the queue were not voters and were queuing up only to cast bogus votes, no action was taken. It is alleged that instead of acceding to their request, the police personnel did nothing and the situation was such that the real voters could not vote. It is specifically stated that the petitioners were not allowed to enter the venue and what transpired was State sponsored WP(C)28311/07 & con case. -: 5 :- terrorism. It is alleged that the venue of the election was captured and the election was not held at all as enjoined by the laws. It is specifically pleaded that the petitioners were arrested along with others at around 8.30 a.m., going by Exts.P1 to P4 and were released by 1 p.m. on self bond. It is alleged that the police were actually providing protection to those with bogus cards and the Deputy Superintendent of Police was seen talking over phone to leaders of political party. It is alleged that the voters had to flee for fear of their person. The petitioners in WP(C).28769/2007 filed on 26-9- 2007, who were also candidates, contend that the issuance of ballot paper and other requirements were in violation of the laws deliberately enabling non-members to cast vote and that it is understood that the signatures of the persons, who exercised the vote, also have not been obtained by the Returning Officer to satisfy the requirement of law. It is pleaded that vast majority of genuine members were prevented from casting their votes and votes were cast by impersonation. Accordingly, it is contended that WP(C)28311/07 & con case. -: 6 :- the undertaking given before this Court during the course of the bunch matters (police protection), has been flouted. According to the petitioners, more than 218 from among 377 eligible voters from the constituency “ordinary members” were not permitted to cast their vote and even going by the total number of petitioners in this bunch of matters, this fact would stand established. 7.WP(C).29510 is filed on 4-10-2007 by three candidates of the constituency “nominated members”. It is alleged that from the moment of filing nomination papers, petitioners and other voters on their side started receiving threatening and abusive calls from the goondas of the ruling political party - CPM - to the effect that it is better to abstain from voting if they value their lives. It is alleged that the petitioners along with other candidates and voters arrived at the venue of polling at 8 a.m. on 29-3-2007? to see that more than 1000 persons were already in the queue. According to the petitioners, the whole campus were full of WP(C)28311/07 & con case. -: 7 :- goondas of the CPM. It is stated that the police were acting according to the dictates of some top leaders of the the CPM giving directions to the police to arrest the candidates and real voters. The petitioners stated that they were able to identify E.P.Jayarajan, M.V.Jayarajan and P.Jayarajan, known leaders of CPM who were not members of the society and who had no reason to be present in the scene other than to control the police, the goondas and to see that the real voters do not vote. The petitioners have also given a list of persons who could not vote. 8.WP(C).28390/2007 is filed on 24-9-2007 by persons claiming to be voters. They allege that they were prevented from entering into the polling station and exercising their franchise. It is stated that on 376 genuine voters issued with identity cards, including the petitioners, were prevented from voting. According to them, even prior to the time fixed for polling, large number of CPI(M) activities who were not issued with identity cards were permitted to gather preventing genuine voters from entering the WP(C)28311/07 & con case. -: 8 :- polling booth. According to the petitioners, most of the votes shown to have been cast were bogus and the election is fake. I may notice that individual affidavits have, thereafter, been placed on record by each of the petitioners in respect of the writ petition and also that it has been attempted to be pointed out on behalf of the contesting respondents that the signatures of the petitioners in the writ petition and in those affidavits vary. 9.WP(C).Nos.28863 and 29155 of 2007 are filed by voters raising contentions which are nearly similar to those in the other writ petitions. 10.The first respondent Returning Officer has filed a counter affidavit in WP(C).28390/2007 and another counter affidavit in WP(C). 29510/2007 which are incorporated and treated as the version of the first respondent. Similarly, the third respondent Inspector General of Police has caused a counter affidavit to be filed through the Superintendent of Police, Kannur in WP(C).28311/2007 and in WP(C). WP(C)28311/07 & con case. -: 9 :- 29510/2007, which are also consolidated and treated as the version of the Police Department. Easy reference to those materials can be made with reference to the file WP(C).29510/2007. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/280308