IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 OP(C).No. 1735 of 2011(O) -------------------------------------- I.A. NO.329/2011 & 331/2011 IN I.A. NO.1314/2009 IN OS.97/1099 M.E. OF I ADDITIONAL DISTRICT COURT, KOLLAM .................... PETITIONERS: -------------------- 1. ANILKUMAR A., S/O.P. APPUKUTTAN ACHARI, NADAYIL VADAKKETHIL, MULAMKADAKOM, KOLLAM. 2. ANILKUMAR N., S/O.NATARAJAN ACHARI, "KRISHNA RAJ", MALAYALA NAGAR- 52, AYATHIL P.O., KOLLAM. BY ADV. SRI.K.KARTHIKEYA PANICKER, SMT.DAYA K. PANICKER. RESPONDENT(S): ------------------------- 1. DR.MOHANRAJ, 'SWATHI', SANKAR NAGAR, KOLLAM-691 001. 2. P. VASUDEVAN, KUZHITHARAYIL VEEDU, MULAMKADAKOM, KOLLAM-691 012. BY ADV. SRI.P.B.SURESH KUMAR, SRI.LEO GEORGE, SRI.K.P.SUJESH KUMAR, SRI.K.N.SASIDHARAN NAIR, SRI.M.SUNIL. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 1735 of 2011(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RELEVANT PAGES OF THE SCHEME. EXT.P2: COPY OF THE I.A. NO.224/2011 IN I.A. NO.1314/2009 IN O.S. NO.97/1099 M.E. DATED 16/02/2011. EXT.P3: COPY OF THE WRITTEN OBJECTION DATED 17/02/2011. EXT.P4: COPY OF THE ORDER IN I.A. NO.224/2011 IN O.S. NO.97/1099 M.E. DATED 18/02/2011. EXT.P5: COPY OF THE REPRESENTATION DATED 27/02/2011. EXT.P6: COPY OF THE LIST OF CANDIDATES PARTICIPATED IN THE ELECTION. EXT.P7: COPY OF THE I.A. NO.329/2011 IN O.S. NO.97/1099 M.E. DATED 04/03/2011 BEFORE THE 1ST ADDITIONAL DISTRICT COURT, KOLLAM. EXT.P7(a): COPY OF THE I.A. NO.331/2011 IN O.S. NO.97/1099 M.E. DATED 04/03/2011 BEFORE THE 1ST ADDITIONAL DISTRICT COURT, KOLLAM. EXT.P8: COPY OF THE OBJECTION IN I.A. NO.329/2011 IN O.S. NO.97/1099 M.E. DATED 26/03/2011. EXT.P8(a): COPY OF THE OBJECTION IN I.A. NO.331/2011 INO.S. NO.97/1099 M.E. DATED 26/03/2011. EXT.P9: COPY OF THE ORDER IN I.A. NOS.329/2011 AND 331/2011 IN O.S. NO.97/1099 M.E. DATED 08/04/2011 OF 1ST ADDITIONAL DISTRICT COURT, KOLLAM. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1735 of 2011 -------------------------------------- Dated this the 4th day of November, 2011. JUDGMENT This Original Petition is in challenge of Ext.P9, order passed by the learned Additional District Judge-I, Kollam on I.A.Nos.329 of 2011, 331 of 2011 and 1314 of 2009 in O.S.No.97 of 1099 ME. As per a scheme approved by the learned Additional District Judge in the said suit, administration of the temple belonging to Sree Mulankadakam Devi Temple Trust (for short, “the Trust”) is with the District Court, Kollam. As directed by the said court, elections were being held to the governing council of the Trust from time to time in accordance with the provisions of the scheme. While so, the father of petitioner filed I.A.No.1314 of 2009 before learned Additional District Judge with a request to appoint a Receiver for the entire administration of the temple. The order on that application was challenged in this Court in F.A.O.No.189 of 2010. This Court disposed of the said appeal by judgment dated 10.11.2010 where, in paragraph 6 the learned Additional District Judge was directed to approve the voters list and pass orders to conduct election at the earliest. The approval of the voters list was to be done after giving opportunity to the appellant (in F.A.O.No.189 of 2010) to file his objections and after considering the objections if any preferred by similarly situated persons and after hearing them. It was also directed that the court shall ensure that copies of draft voters list and final voters list are served on the appellant in F.A.O.No.189 of 2010. The court shall call for OP(C)No.1735/2011 2 objections to the voters list from persons interested by publication in the newspapers having circulation in Kollam and Thiruvananthapuram Taluks. Publication was to be made on the next posting date. Pursuant to the above said directions, the Returning Officer appointed by the court prepared a draft list of voters, that draft list was published at the office of Returning Officer, compound of the temple and was also published in the Mathrubhoomi and Kerala Kaumudi on 30.03.2010 inviting objections, if any, to the draft voters list between 01.04.2010 and 17.04.2010. Nobody preferred any objection. Thereafter, as directed in the judgment in F.A.O.No.189 of 2010 the Returning Officer effected a publication in the Mathrubhoomi and Kerala Kaumudi dated 02.12.2010 inviting objection to the voters list between 20.12.2010 and 10.01.2011. Parties were informed that they could approach the District Court also with their objections if any. Certain objections were raised and, the court passed order on 03.02.2011 to conduct the election. In the meantime, certain objections were raised before the Returning Officer about some of the voters figuring in the draft voters list. The Returning Officer forwarded those objections to the learned Additional District Judge with his report that the disputed votes could be treated as tendered votes and kept in separate ballot box. Ext.P9, common order passed by the learned Additional District Judge would show that in the order dated 03.02.2011, in paragraph 4 learned Additional District Judge held: OP(C)No.1735/2011 3 “At this juncture it is pertinent to note that the Hon'ble High Court has taken seizin of the matter and gave direction to this court to see that the election is conducted on or before 9.3.2011. In the circumstance I am in agreement with the Returning Officer to keep the disputed votes of the persons mentioned in the objections other than under item No.1 under seal without counting until a direction is given by this court.” Thereafter, election was scheduled to be held on 27.02.2011. On that day, petitioners gave Ext.P5, objection before the Returning Officer challenging the candidature of respondents 1 and 2 on the ground that they are not voters in the voters list of Kollam East. The election was conducted on 27.02.2011 and respondents 1 and 2 won the election with thumbing majority even excluding the tendered votes. Petitioners filed I.A.Nos.329 and 331 of 2011 challenging the election. It was contended that the voters list was not approved by the learned Additional District Judge as directed in the judgment in F.A.O.No.189 of 2010 and that the 2nd respondent was not qualified to be elected since he is working as an Assistant Sub Inspector. Respondents preferred objection to the said OP(C)No.1735/2011 4 application. Learned Additional District Judge has passed Ext.P9, common oder upholding the election of respondents which is under challenge in this Original Petition. 2. Learned counsel for petitioners has contended that though Clause 12 of the scheme requires the District Court to approve the final list of voters after hearing the objections if any in the matter, no such approval has been given by the learned Additional District Judge so far as the final list on hand is concerned and hence the whole election has to be set aside. It is also contended that so far as the tendered votes are concerned, no matter whether it materially affected the election or not, no decision has been taken by the learned Additional District Judge as to the validity of the tendered votes and if the 1st respondent could not have been a voter, the question of his being a candidate at the election and being elected also did not arise. So far as the 2nd respondent is concerned, it is contended that he being an Assistant Sub Inspector in service is not entitled to contest the election in view of the provisions of the Kerala Police Act, 2011 (for short, “the Act”). It is contended that the finding of learned Additional District Judge that if the 2nd respondent has violated the provisions of the Act he may be otherwise liable but, the scheme does not prohibit him contesting the election, cannot be sustained. OP(C)No.1735/2011 5 3. Learned counsel for respondents contended that though not in so many words, a reading of Ext.P9 would show that learned Additional District Judge has taken into account the objection as to acceptability of the tendered votes. It is contended that election to the governing council is not conducted village wise, it is taluk wise and hence it is immaterial whether Sl.Nos.1 to 323 (including the 1st respondent) figured in the voters list of Kollam east or west and hence that has no bearing on the election or candidature of the 1st respondent. It is contended that so far as 2nd respondent is concerned, the Act does not contemplate any disqualification in holding an honorary post as member of the governing council. 4. So far as acceptance of the voters list is concerned, true that in the judgment in F.A.O.No.189 of 2010 this Court directed that the court below shall approve the voters list after considering the objections if any and Clause 12 of the scheme also states that the court has to to approve the voters list. In this case, the draft voters list was prepared by the Returning Officer appointed by the court for the conduct of election and the same was published at the places and vernacular dailies above stated inviting objections between 01.04.2010 and 17.04.2010 and similarly a further publication was made in the said vernacular dailies on 02.12.2010 inviting objections between 20.12.2010 and 10.01.2011. It is pertinent to note that in the said publications, the parties were also informed that they could approach the learned Additional District Judge with their OP(C)No.1735/2011 6 objections if any to the voters list. It is while so, the certain objections were raised as to acceptability of certain voters in the list before the Returning Officer and he forwarded the voters list along with his opinion that the disputed votes could be taken as tendered votes and kept in a separate box. It is considering that objection and opinion of the Returning Officer that learned Additional District Judge passed order dated 03.02.2011 which I have extracted above. I must bear in mind that when the voters list regarding which the Returning Officer had made publications in vernacular dailies on 30.03.2010 and 02.12.2010 inviting objections between 01.04.2010 and 17.04.2010 and 20.12.2010 and 10.01.2011 was before the learned Additional District Judge and, with that voters list on hand learned Additional District Judge has passed the order on 03.02.2011 agreeing to the suggestion made by the Returning Officer that so far as the disputed votes are concerned, the same could be kept in separate sealed cover. In otherwords, by necessary implication that must understand that in other respects the voters list was approved by the learned Additional District Judge by order dated 03.02.2011. 5. Now coming to the contention that acceptability of the tendered votes was not considered by the learned Additional District Judge is concerned, my attention is drawn to Ext.P2, application filed by respondents and others before the learned Additional District Judge. In that application, respondents and others stated that the voters ranked as Sl.Nos.1 to 323 in the voters list (based OP(C)No.1735/2011 7 on which learned Additional District Judge passed the order on 03.02.2011) may be transferred to the list of Kollam east. To that petition, petitioners preferred Ext.P3, objection where it is stated that the voters list is prepared with due notice to all Viswakarmas of Kollam taluk and conditions to be a voter in the election were also notified. As per the conditions prescribed to be a voter a Viswakarma of a particular village has to be a voter only if he belongs to the particular village. If his name is included in another village then he is disqualified to be a voter to the election. If they got any grievance in respect of inclusion of their names in another village, they ought to have filed individual objection/representation before the Returning Officer within the period prescribed for the same. In the absence of any such objection/representation the voters list already prepared could not be corrected or modified, that too at the instance of the then committee members. (quoted from Ext.P3, objection) While Exts.P2 and P3 were pending before learned Additional District Judge, respondents and others who preferred Ext.P2, application filed I.A.No.224 of 2011 to withdraw Ext.P2, application and that was allowed by the learned Additional District Judge as per Ext.P4, order dated 18.02.2011. The result is that Ext.P2, application stands dismissed as not pressed. 6. True that by withdrawal of Ext.P2, application by Ext.P4, order, Sl.Nos.1 to 323 who belong to Kollam east appear in the voters list of Kollam west. I referred to the contention petitioners raised in Ext.P3, objection as to OP(C)No.1735/2011 8 validity of the voters of one village figuring as voters of another village. But, before me, learned counsel for petitioners was not able to point out any provision in the scheme which required that a person residing in a particular village must be a voter of that village or could not figure as voter of another village (in the same taluk). On the otherhand, it is contended by learned counsel for respondents that there is no village-wise distinction so far as preparation of voters list is concerned, it is sufficient that the voter belongs to the taluk concerned and to the Viswakarma community of that taluk. In the absence of any provision in the scheme which invalidated a voters list where a Viswakarma of a particular village (in the same taluk) figured as a voter of another village (in the same taluk) I am unable to say that because Sl.Nos.1 to 323 who are residents of Kollam east are shown as voters of Kollam west (both, admittedly of the same taluk) that invalidated the franchise of Sl.Nos.1 to 323 who include the 1st respondent as well. Therefore, that contention of petitioners cannot be accepted. 7. Then the next contention is that the learned Additional District Judge has not taken any decision as to acceptability and otherwise of the tendered votes. In paragraph 9 of Ext.P9, order it is stated that learned Additional District Judge has considered the objections (including acceptability or otherwise of the tendered votes) and it is held as under: OP(C)No.1735/2011 9 “I have considered the objections in the above I.As in the light of the above facts. At the outset itself I find that there was no justification for the petitioners to challenge the election of Dr.A.Mohan Raj on the ground that there was some mistake in the voters list by including his name in a different village. It is true that he had filed I.A.No.224/2011 in the capacity as the president of the trust to get corrected the mistake in the voters list and it was later not pressed on 18/2/2011. In my opinion the dismissal of the said application cannot be taken advantage of by the petitioners since this Court had passed in view of the above mentioned order dated 3/2/11. The petitioners have no case that the said candidate is not belonging to the 'Kammalars' community and a beneficiary under the scheme. He was elected last time also and he is the present president of the Trust. Therefore, I am not impressed with the arguments advanced by the learned counsel for the petitioners regarding the competency of Dr.A.Mohanraj in contesting the election. After going through the relevant provisions in the scheme and the OP(C)No.1735/2011 10 manner in which the election was conducted, I am not inclined to interfere with the election of Dr.Sri.A.Mohan Raj to the governing body of the Trust.” 8. Thus, it is not as if learned Additional District Judge has not referred to the objections. I must also bear in mind that it was after the learned Additional District Judge accepted the proposal of the Returning Officer to keep the disputed votes in a separate sealed cover by order dated 03.02.2011 that Ext.P2, application was preferred by respondents and others and, that was withdrawn by Ext.P4, oder. 9. I also stated that the learned counsel for petitioners was not able to point out any provision in the scheme which restricted eligibility to be a voter in the voters list of a particular village to the Viswakarmas of that village alone. If that be so, merely for the reason that some of the Viswakarmas who are otherwise eligible to be voters and are residing in Kollam east happened to be in the voters list of Kollam west (both of the same taluk), the said persons lost their franchise. In that view of the matter the contention of petitioners cannot be accepted. OP(C)No.1735/2011 11 10. What remains is the challenge to the election of the 2nd respondent. In that connection, reference is made to Sections 86 and 92 of the Act. Sec.86 of the Act deals with the disqualification for appointment as a Police Officer and states that no person shall be eligible for appointment as a Police Officer or shall have the right to continue in employment as a Police Officer if that person is an office bearer of any social, religious, cultural or scientific organization and is not prepared to give up or terminate such position even after instructions from the Government, State Police Chief or the District Police Chief. Sec.92 of the Act states that no Police Officer, other than a special Police Officer shall engage “in any other trade or employment” other than his duties under the said Act. 11. Learned Additional District Judge has taken the view that so far as the scheme does not prevent a Police Officer from being a member of the governing council, if the 2nd respondent by getting elected to the governing council has invited any disqualification under the Act, he runs the risk of losing his job but that does not affect his right to continue as a member of the governing council (The said view of the learned Additional District Judge is taken objection to by the learned counsel for petitioners). So far as Sec.92 of the Act is concerned, that interdicts a Police Officer from engaging “in any trade or employment”. I am not inclined to think that being a member of the governing OP(C)No.1735/2011 12 council of the Trust in this case amounts to a trade or employment as those words are understood in common parlance. Therefore, Sec.92 of the Act cannot apply. 12. Sec.86 of the Act deals with the disqualification for appointment as Police Officer or, the right of Police Officer to continue in employment as Police Officer if that person as Clause (e) states, is an office bearer of any social, religious, cultural or scientific organization and is not prepared to give up or terminate such position even after instructions from the Government, State Police Chief or the District Police Chief. In otherwords, even when a Police Officer in service becomes a member of a social, religious, cultural or scientific organization, it is not as if he would forthwith lose his status as a Police Officer, instead, it is only when such Police Officer is not prepared to give up or terminate such position even after instruction is given from the Government, State Police Chief or the District Police Chief that consequence referred in Sec.86(1)(e) of the Act arises. In otherwords, if being a member of the governing council of the Trust in the present case is a violation of Sec.86(1)(e) of the Act, it is not as if the 2nd respondent would ipso facto invite the disqualification to continue in service - it is only that if in spite of instruction from the Government, State Police Chief or the District Police Chief he continues to be a member of such social, religious, cultural or scientific organization, he invites the disqualification. OP(C)No.1735/2011 13 13. I must also bear in mind that as pointed out by learned Additional District Judge the scheme does not prohibit a Police Officer becoming a member of the governing council. The only thing is that if such a Police Officer comes within the category of Clause (e) of Sub-sec.(1) of Sec.86 of the Act, he will invite the disqualification (in continuing in service) if he refuses to terminate such position even after instruction from the Government, State Police Chief or the District Police Chief. So far as the present case is concerned, if membership of the 2nd respondent in the governing council comes within the scope of Clause (e) of Sub-sec.(1) of Sec.86 of the Act, he will invite the disqualification in continuing in service if he fails to terminate his position as member of the governing council even after he gets instruction from the Government, State Police Chief or the District Police Chief. That disqualification does not affect his continuance as a member of the governing council if he opts to continue to be so. Let the 2nd respondent face the music so far as the (alleged) disqualification under Sec.86(1)(e) of the Act is concerned, if the said clause applies to him and if in spite of instruction to terminate such position, he opts to continue as a member of the governing council. Petitioners have other options in that regard. But that cannot be said to affect the position of the 2nd respondent as a member of the governing council. 14. In the light of what I have stated above, I do not find reason to interfere with the impugned order. OP(C)No.1735/2011 14 Original Petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks