IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WP(C).No. 20900 of 2009(F) -------------------------- PETITIONER(S): --------------- K.E.PAREEDKUNJU, MEMBER NO. 16431, CHERTHALA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO.A. 327, RESIDING AT PUTHENPURACKAL KUTTANCHAL, THYCATTUSSERY P.O., CHERTHALA. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.S.SHYAM PRASANTH SRI.A.HAROON RASHEED RESPONDENT(S): --------------- 1. THE ELECTORAL OFFICER/ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CHERTHALA CIRCLE, CHERTHALA. 2. THE RETURNING OFFICER/INSPECTOR OF CO-OPERATIVE SOCIETIES, OFFICER OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CHERTHALA. 3. CHERTHALA CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD., NO.A. 327, CHERTHALA, ALAPPUZHA 688 524, REPRESENTED BY ITS SECRETARY. 4. SMT.ANANDAVALLY AMMA, MEMBERSHIP NO. 11543, ANANDA BHAVANAM, TRICHATTUKULAM P.O., CHERTHALA. 5. SHRI.A.N.SUGUNAN, MEMBERSHIP NO. 529, ANJILICHIRA HOUSE, CHERTHALA P.O., CHERTHALA. WPC NO.20900/2009 6. SHRI.S.BAHULEYAN, MEMBERSHIP NO. 104, ANITHA BHAVAN, PATTANAKKAD P.O., CHERTHALA. 7. SHRI.P.S.GOPI, MEMBERSHIP NO. 10715, PUTHUVAL NIKARTHU, VAYALAR P.O., CHERTHALA. 8. SHRI.T.R.HARIDAS, MEMBERSHIP NO.11671, PEEDIKA VELI, MUHAMMA P.O., CHERTHALA. ADV. SRI.P.C.SASIDHARAN FOR R7 SRI.S.P.ARAVINDAKSHAN PILLAY FOR R3 SMT.N.SANTHA FOR R3 SRI.S.A.ANAND FOR R3 SRI.PETER JOSE CHRISTO FOR R3 SRI.RAMESH. C.R. FOR R3 SRI.N.JAMES KOSHY SRI.K.C.SANTHOSHKUMAR, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2009, ALONG WITH WP(C) NOS.21577, 21605 & 22122 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.20900/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF PROCEEDINGS OF R2 IN RESPECT OF ELECTION HELD ON 22/08/2004. P2 : COPY OF THE ORDER NO.E(2) 1026/09/SCEC (1) DATED 08/07/2009 ISSUED BY THE STATE CO-OP. ELECTION COMMISSION, TRIVANDRUM. P3 : COPY OF THE ORDER NO.E(2) 1026/09/SCEC (2) DATED 08/07/2009 ISSUED BY THE STATE CO-OP. ELECTION COMMISSION, TRIVANDRUM. P4 : COPY OF THE ELECTION NOTIFICATION NO.E(2) 1026/09/SCEC DATED 08/07/2009 ISSUED BY THE STATE CO-OP. ELECTION COMMISSION, TRIVANDRUM. P5 : COPY OF PROCEEDINGS DATED 15/07/2009 AND RELEVANT EXTRACT OF PRELIMINARY VOTERS LIST ISSUED BY R1. P6 : COPY OF NOTICE DATED 23/07/2009 ALONG WITH RELEVANT EXTRACT OF LIST PUBLISHED BY R1. P7 : COPY OF PROCEEDINGS AE/A-329/09 DATED 22/07/2009 ISSUED BY R1. P8 : COPY OF REPLY TO EXT.P7 ON 23/07/2009 SENT BY R3 TO R1. RESPONDENT'S EXHIBITS R7(a) : COPY OF RESOLUTION DATED 01/04/2007. R7(b) : COPY OF RESOLUTION DATED 31/12/2008. R7(c) : COPY OF CERTIFICATE ISSUED BY THE SECRETARY OF THE SOCIETY DATED 01/06/2009. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.20900, 21577, 21605 & 22122 of 2009 ------------------------------------------------ Dated, this the 6th day of August, 2009 J U D G M E N T The legality of the final voters list of the members of the Cherthala Co-operative Agricultural and Rural Development Bank (hereinafter referred to as the Bank for short) is the issue that is raised in WP(C) Nos.20900, 21577 & 21605 of 2009. 2. The issue being common, these three writ petitions are heard together, and are disposed of by this common judgment. For convenience, I shall be referring to the facts and documents as are available in WP(C) No.20900/2009. 3. The petitioner in this writ petition is presently a member of the Board of Directors of the Bank. By Ext.P4, election to the Board of Directors of the Bank has been notified and is scheduled to be held on 09/08/2009. In compliance with the schedule prescribed in Ext.P4, along with Ext.P5 notice, preliminary voters list was published by the Electoral Officer on 15/07/2009. It is stated that thereupon respondents 4 to 8 raised objections and the WP(C) Nos.20900, 21577, 21605, 22122/2009 -2- Electoral Officer verified the records of the Bank. It is the case of the Bank, which is also a petitioner in WP(C) No.21605/2009, that such verification was behind their back and was without notice to them. Be that as it may, by Ext.P7 order dated 22/07/2009, the Electoral Officer held that several members included in the list are expired and that their inclusion in the list is irregular and that their names should be removed. It is also held that membership granted to members at serial Nos.9365 to 12725 and 12753 to 14306 were not incompliance with the provisions of the Kerala Co-operative Societies Act and the Rules framed thereunder and also against the bye-laws of the Society, and therefore, removing those members also, a final voters list should be prepared and made available to the Electoral Officer before 11 am on 23/07/2009. 4. The Bank submits that they received Ext.P7 at 4 p.m. on 22/07/2009, and despite the paucity of time, they submitted a list as desired by the Electoral Officer. They also submitted a list excluding those members, who were indicated in the preliminary voters list as expired. On 23/07/2009 itself, the Bank submitted Ext.P8 to the Electoral Officer reiterating the eligibility of the WP(C) Nos.20900, 21577, 21605, 22122/2009 -3- aforesaid 4915 persons to be retained in the voters list. Irrespective of the objections filed, Ext.P6 final voters list was published by the Electoral Officer on 23/07/2009. In the list, the names of the expired 145 persons and also names of the allegedly ineligible 4915 persons were excluded. It is thereupon that these writ petitions were filed, praying that the removal of 4915 members in the final voters list of the Bank is illegal and to quash the said action of the Electoral Officer. Further prayer is to direct that the aforesaid members should be permitted to cast their votes, and that the petitioner in WP(C) No.20900/2009 should be permitted to contest in the election. In this context, it is also to be mentioned that pursuant to the interim order passed by this Court on 27/07/2009, the petitioner in WP(C) No.20900/2009 has already submitted his nomination and the same has been scrutinised and accepted provisionally. 5. The learned Government Pleader argued the case with reference to the documents that he obtained from the Electoral Officer, and was duly supported by the counsel appearing for the party respondents at whose instance, the elimination process was WP(C) Nos.20900, 21577, 21605, 22122/2009 -4- initiated. According to the learned Government Pleader, on the publication of Ext.P5 preliminary voters list, complaints were received from respondents 4 to 8 mentioned above, and the Secretary was called upon to produce the minutes of the Bank admitting members to the Society with effect from 2000. It is stated that accordingly the copies of the minutes were received and on verification, it was found that for various reasons the admission of 4915 persons was irregular. It is also submitted that the preliminary voters list contained a list of 145 persons, who admittedly had expired. It is stated that thereupon, Ext.P7 was issued, and accordingly, the final voters list excluding ineligible persons were published. It is contended that the aforesaid actions of the Electoral Officer are perfectly in compliance with the provisions contained in Rule 35A of the Kerala Co-operative Societies Rules. 6. Conduct of the election to the Bank is regulated by the provisions contained in Rule 35A of the KCS Rules and it is the responsibility of the Electoral Officer to publish final voters list after considering the objections filed against the preliminary voters list. WP(C) Nos.20900, 21577, 21605, 22122/2009 -5- Power of the Electoral Officer to remove the ineligible persons from the preliminary voters list, has been recognized by this Court in the judgment in Vijayakumar v. Joint Registrar (1996(1) KLT 285). In the aforesaid judgment, paragraphs 16 to 19, to the extent it is relevant, reads as under:- “16. --------- . It has therefore, to be taken that the Returning Officer has the power to conduct a summary enquiry when objection is raised regarding the inclusion of a member in the voters list. The powers to consider the objections has been conferred on the Returning Officer alone. There is nothing in the Act or Rules to show that he can delegate or abdicate his functions in favour of any authority of the Society. The returning officer is required to give his own ruling on the objection. He cannot rule out any objection or sustain it arbitrarily. In order to arrive at a proper decision it is open to him to conduct a summary enquiry to be satisfied about the sustainability or otherwise of the objections. But, he can do so only if the objections are specific and definite against each individual member which can be subjected to verification with reliable materials that may be made available to him by the objections and the authorities of the Society. He is not expected to make a roving enquiry. 17. It is he who is to be satisfied about the correctness or otherwise of the objections. He cannot simply forward the objections to the authorities of the society for their verification. If, however, the objections are general or vague in nature or appear to be prima facie baseless, the Returning Officer is not WP(C) Nos.20900, 21577, 21605, 22122/2009 -6- bound to make any enquiry. We are therefore, unable to agree wholly with the proposition laid down in Mathew's case and Kottappady Service Co-op. Bank's case on this aspect. We approve the observation made by the learned single Judge in Alleppey Dist. Co-op. D.S.Co-op. Society Ltd.'s Case to the extent that the Returning Officer has a duty to make an enquiry into the objections to ascertain the eligibility of a member to vote in an election who is listed in the draft voters list furnished by the Society. But, we do not agree with his observations that the Returning Officer should sent the objections along with the draft voters list to the committee of the Society to prepare the final list. That would amount to surrender of his functions in favour of the Society, which is not contemplated in R.35 of the Rules. 18. In the case at hand, it appears that the objections in Ext.P3 are very general in nature. No specific and definite allegations have been made against individual members listed in the voters list. The Returning Officer is therefore not bound to make an enquiry into such vague objections. 19. For the reasons stated above, we hold that the Returning Officer has the power to make an enquiry into the objections if the same are definite and specific and he should verify them with the materials placed before him by the objectors and the authorities of the Society. In these cases, the objections being vague in nature, there is no scope to hold an enquiry.” 7. A reading of the above judgment shows that though the Electoral Officer has power to exclude from the voters list persons WP(C) Nos.20900, 21577, 21605, 22122/2009 -7- who are ineligible to cast their votes in the election, such exclusion can be ordered only if objections have been received challenging the eligibility of the persons, and that those complaints are specific, definite and against each individual member of the Society. It is also held that in the process, the enquiry to be held is a summary one, and that he is not expected to conduct a roving enquiry. 8. Viewed in the light of the law as laid down in the aforesaid judgment, the question to be examined is whether the complaints made by respondents 4 to 8 are specific and definite against each of the allegedly ineligible individual members, who are now removed by the Electoral Officer. The learned Government Pleader has made available the originals of the complaints that were received from respondents 4 to 8, and I have gone through each of these complaints. A reading of these complaints show that the allegations therein are in very general and vague terms and no specific allegation is made with reference to any of the individual members, whose eligibility is challenged. In fact, even in the complaint made by the 7th respondent, all that he says is that several members included in the list are ineligible and has stated WP(C) Nos.20900, 21577, 21605, 22122/2009 -8- that some of the ineligible are those at Sl.Nos.17789 to 17869, 14896 to 14954 and 18421 to 18447. Rest of the complaints are more general and vague. Therefore, it is on the basis of the aforesaid complaints that the process of elimination has been initiated by the Electoral Officer. 9. What is primarily challenged is Ext.P7 of the Electoral Officer and as held by the Apex Court in Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others (AIR 1978 SC 851) when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons mentioned therein and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. 10. From Ext.P7 order passed by the Electoral Officer, it can be seen that he has generally concluded that the admission of the members who are ordered to be excluded, was contrary to the bye- laws of the Society and the provisions of the Act and the Rules. The findings in the order and the allegations in the complaints received are too general and vague and not specific and definite, which are the conditions necessary for the Electoral Officer to exercise his WP(C) Nos.20900, 21577, 21605, 22122/2009 -9- power as held by the Division Bench in the aforesaid judgment. If that be so, the removal of 4915 members mentioned in Ext.P7 order dated 22/07/2009 referred to above has to be held illegal and I do so. Accordingly, I quash Ext.P7 order to the extent it orders removal of 4915 members from the final voters list and direct that those members also be permitted to cast their votes in the election that is scheduled to be held on 09/08/2009. 11. However, having regard to the fact that the eligibility of the aforesaid 4915 persons is disputed by respondents 4 to 8, and as this judgment is rendered on the facts stated above, it is always open to respondents 4 to 8 to pursue statutory remedies and prove their case by adducing evidence. Therefore, it is directed that votes of the aforesaid 4915 members be received in separate ballot boxes and shall be counted separately. However, it is clarified that these votes shall also be reckoned for declaring the results of the poll. 12. In so far as WP(C) No.22122/2009 is concerned, the prayer sought is to direct respondents 1 to 2 therein to permit the petitioner therein to take videograph of the voting at the polling WP(C) Nos.20900, 21577, 21605, 22122/2009 -10- stations in the election to be held on 09/08/2009, and also to ensure the identity of the voters, who come for voting at the polling stations. This relief is sought on the basis that the petitioner apprehends trouble at the polling stations and also bogus voting. 13. In several cases of this nature, considering identical apprehensions, this Court has granted these reliefs. Therefore, in this writ petition also, the Returning Officer is directed to allow videography of the events at the polling stations, at the cost of the petitioner, and retain the original video/CD with him, and to give a copy thereof to the petitioner. This obviously shall be under the directions of the Returning Officer. 14. It is also directed that if identity of any member is disputed, the Returning Officer should verify the identity of the person concerned with reference to the photograph in the ID and the photograph in Form 6B Register. These writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) jg