IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WA.No. 1054 of 2010() --------------------- AGAINST THE ORDER IN WPC.18192/2010 Dated 18/06/2010 .................... APPELLANT(S): RESPONDENT NO.4 ----------------------------- WAYANAD DISTRICT WHOLE SALE CONSUMERS CO-OPERATIVE STORE LTD.,NO.W..36, REP. BY ITS ADMINISTRATOR, KALPETTA, WAYANAD DISTRICT. BY ADV. SRI.P.K.RAMKUMAR RESPONDENT(S): RESPONDENT NO.4 ------------------------------ 1. THOMAS K.D., DIRECTOR, SASIMALA, KSHEEROLPADAKA, SAHAKARANA SANGAM LTD., NO.W22(D), APOOS, SASIMALA .P.O.,WAYANAND RESIDING AT KANIYODIKAL HOUSE, WAYANAD. 2. SKARIA K.A.,PRESIDENT, PULPALLY, LABOUR CONTRACT, CO-OPERATIVE SOCIETY LTD., NO,W168, PULPALLY P.O., RESIDING AT NAMBALLY HOUSE, WAYANAD. 3. ASSISTANT REGISTRAR (PLANNING), OFFICE OF THE JOINT REGISTRAR (G), WAYANAD ELECTRICAL OFFICER TO WAYANAD DISTRICT, WHOLE SALE CONSUMER CO-OPERATIVE STORE, LTD,NO. W36,KALPETTA, WAYANAD DISTRICT. 4. UNIT INSPECTOR, VYTHIRI UNIT, OFFICE OF THE ASST.REGISTRAR (G),KALPETTA, RETUMING OFFICER TO WHOLE SALE CONSUMER CO-OPERATIVE STORE.LTD. NO.W36, KALPETTA, WAYANAD DISTRICT. 5. STATE CO-OPERATIVE ELECTION COMMISSIONR, OFICE OF THE STATE CO-OPERATIVE ELECTION COMMISSIONR, THIRUVANANTHAPURAM. BY SPECIAL GOVT. PLEADER SMT.ANU SIVARAMAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - W.A.No.1054 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of July, 2010 JUDGMENT Basheer, J. This appeal is directed against the interim order passed by the learned Single Judge in W.P.(C)No.18192/2010 filed by respondents 1 and 2 herein. By the impugned order, the learned Single Judge directed the Returning Officer “ to include the 25 Primary Societies mentioned in Ext.P7 in the voters list and to permit them to vote in the election as per Ext.P3.” It was further directed that the votes polled by the representatives of the said 25 Primary Societies shall be collected in a separate ballot box by the Returning Officer and that the votes can be counted and results declared. However, it was also ordered that the votes collected separately shall be retained separately and declaration of the results shall be subject to further orders in the writ petition. 2. The primary grievance of the petitioners in the writ petition is that 25 institutional members were excluded from the voters list in an illegal manner and without any sanction or authority or law. One of the WA.No.1054/2010 2 prayers in the writ petition is to issue a writ in the nature of mandamus or such other appropriate writ or direction commanding the Returning Officer to accept the nomination papers to be submitted by the petitioners for election scheduled to be held on June 14, 2010. 3. The appellant-Society takes exception essentially to that part of the interim order of the learned Single Judge which allows the Returning Officer to count and declare the result of the election . The appellant has raised various contentions in the appeal as against the eligibility and entitlement of the 25 institutional members to participate in the election. We do not propose to advert to or deal with those contentions at this stage in view of the order that we propose to pass in this appeal. Similarly, we refrain from making any comment or observation on the contentions raised by the writ petitioners also. 4. When this writ appeal was admitted on June 24, 2010, the following interim order was passed by us : “The impugned order is modified to the extent that the votes, if any, that may be cast by the 25 Primary Societies shall be kept in a separate ballot box by the Returning Officer. Counting of votes and declaration of result of the election shall be done only WA.No.1054/2010 3 after obtaining orders from this court.” 5. Today, when the case is taken up for further consideration, we have heard learned counsel for the parties and perused the materials available on record. Connected writ petition viz. W.P.(C) No.18426/2010 filed by two other members with identical prayers was also tagged on to this case as agreed by learned counsel for the parties. 6. On a direction issued by us, learned Special Government Pleader Smt.Anu Sivaraman informs us that 218 out of the 916 individual voters have cast their votes in the election. Similarly, 47 out of 57 institutional members have also cast their votes. Out of the 25 voters in the disputed category, 23 have exercised their voting right. Thus 288 votes have been cast in the election. We are further informed that pursuant to the direction issued by the learned Single Judge, the Returning Officer has kept the disputed votes in a separate box under seal and the sealed ballot boxes are now kept in the Treasury. She further submits that the Returning Officer shall carry out further directions, if any, that may be issued by this court in this regard. 7. Having heard learned counsel for the parties and having considered the entire aspects of the matter, we are of the view that it WA.No.1054/2010 4 will be appropriate if the parties are relegated to the learned Single Judge. However, in the facts and circumstances of the case, we are satisfied that the Returning Officer can be directed to count the votes kept in separate boxes in the presence of authorised representatives/candidates. The Officer shall count the votes separately as directed above on July 26, 2010 at 11.a.m. at the office premises of the appellant society. However, the result shall not be declared. It shall be produced in a sealed cover before the learned Single Judge for further orders. The dispute relating to the 23 institutional votes shall be decided by the learned Single Judge after hearing the parties. It will be open to the parties concerned to make a request to the learned Single Judge to expedite the hearing of the writ petitions. The Writ Appeal is disposed of in the above terms. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE sv. WA.No.1054/2010 5