IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 WP(C).No. 30413 of 2008(U) ------------------------------------------- PETITIONER(S): ------------------------ MADHAVA HERALA, KALERI HOUSE, P.O. EDNEER,KASARGOD. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): --------------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE AGRICULTURAL & RURAL DEVELOPMENT BANK LIMITED NO. FF-113, KASARGOD 671 121, BY ITS SECRETARY. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KASARGOD. 3. THE STATE CO-OPERATIVE ELECTION COMMISSION, OFFICE OF THE KERALA STATE CO-OPERATIVE ELECTION COMMISSION, THIRUVANANTHAPURAM. *ADDL.R4 TO R6 ARE IMPLEADED: R4. THE DISTRICT COLLECTOR/DISTRICT MAGISTRATE, KASARAGOD. R5. THE REVENUE DIVISIONAL OFFICER/ADDITIONAL DISTRICT MAGISTRATE, KASARAGOD. R6. THE DISTRICT SUPERINTENDENT OF POLICE,KASARAGOD. (*ADDL.R4 TO R6 ARE IMPLEADED AS SUO-MOTU AS PER ORDER DATED 16/10/2008) ADV. SRI.T.SETHUMADHAVAN FOR R1 SRI.PUSHPARAJAN KODOTH FOR R1 SRI.K.JAYESH MOHANKUMAR FOR R1 SP. GOVERNMENT PLEADER SMT. A.G. ANEETHA FOR R2 TO R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/01/2009 ALONG WITH WPC NO. 31127OF 2008 AND WPC NO. 31774 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30413/2008 U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF INTERIM ORDER DTD. 26/09/08 IN WP(C) NO. 28280/08. EXT.P2: COPY OF LETTER DTD. 3/10/08 OF THE 3RD RESPONDENT. EXT.P3: COPY OF NOTICE OF THE MEETING SCHEDULED ON 8/10/08 AT 11.A.M. ISSUED N 3/10/08 BY THE 1ST RESPONDENT. EXT.P4: COPY OF NOTIFICATION DTD. 9/10/08 ISSUED BY THE 3RD RESPONDENT. EXT.P5: COPY OF CIRCULAR NO.1/2001 DTD. 18/05/01. RESPONDENT'S EXHIBIT: EXT.R1(A): COPY OF THE PROCEEDINGS OF THE MEETING OF THE BOARD OF DIRECTORS OF THE 1ST RESPONDENT BANK HELD ON 8/10/2008. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).Nos.30413, 31127 & 31774 OF 2008 ------------------------------------------- Dated this the 27th day of January, 2009 JUDGMENT Read order dated 12.12.2008. As of now, election is over. Let the results be declared and the votes collected separately and be retained separately for a period of six months to enable resolution of any dispute, if at all there is any election dispute. Directing so, these writ petitions are disposed of without prejudice to contentions of parties. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb. WPC.30413/08 & con. cases Page numbers THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).Nos.30413, 31127 & 31774 OF 2008 ------------------------------------------- Dated this the 12th day of December, 2008 O R D E R The judgment delivered on 29.10.2008 was issued without taking note of the fact that the resolution dated 8.10.2008 was drawn up by the committee then in office. Obviously, this has resulted in considerable confusion since it is stated that the election process had been carried on till the stage of consideration of nominations. Hence, judgment dated 29.10.2008 in these matters is recalled. 2. These matters relate to the conduct of election to the committee of the first respondent society. The petitioner in W.P (C).30413/08 contends that the venue fixed for the polling initially, viz., Cherkala, was an undesirable one and the State Election Commission directed the society to re-fix the venue for the convenience of the voters. The complaint is that the polling WPC.30413/08 & con. cases Page numbers is re-scheduled to be held in Thalangara and that the said venue is a more sensitive area. Allegations are made to the effect that the official respondents exercised their powers on holidays and it is wholly improbable that the impugned action was taken in accordance with law. Accordingly, the petitioner therein seeks an order setting aside Ext.P4 election notification dated 9.10.2008, which has prescribed the venue for the polling as Govt. Muslim Vocational Higher Secondary School, Thalangara; the polling to be held on 31.10.2008. 3. W.P(C).31127/08 is filed by two persons whose nominations were rejected. The plea raised by them is that the ground of rejection is not stated and that their nomination papers are liable to be accepted. They also contend that the notification has been issued in haste without following the due procedure. In answer to that, the stand of the Returning Officer appears to be that there were dues payable by the petitioners to other co-operative institutions. There is, however, no material on record to hold that there was any demand made or notice issued intimating them of any such arrear by the debtor societies. WPC.30413/08 & con. cases Page numbers 4. W.P(C).31774/08 is filed by a candidate in the election, seeking a declaration that the conduct of election by listing the polling on 31.10.2008, a date after the day on which the term of the committee in office would end, is contrary to Rule 39 of the Kerala Co-operative Societies Rules, 1969 and is hence, liable to be interfered with and an Administrator has to conduct the election process. The facts of the case would show that the committee in office drew up the proper resolution and sent it for approval through the proper channel and the Election Commission, which is on record with its counter affidavit, has clearly stated that the Commission had instructed the bank to fix another venue vide letter dated 3.10.2008. The committee thus revised its decision regarding the venue and communicated the decision dated 8.10.2008, changing the venue from Cherkala to Thalangara. Obviously therefore, the Election Commission could have proceeded to conduct the election in terms of the original decision regarding the schedule of the election, however, with modification of the venue of polling. WPC.30413/08 & con. cases Page numbers 5. In the meanwhile, the resolution dated 30.8.2008 was rescinded by the joint Registrar exercising authority under Rule 176 of the KCS Rules on 3.10.2008. According to the Election Commission, this was not came to the knowledge of the Commission. The resolution dated 30.8.2008, which was rescinded, contains two different components; one related to admission of members and the other related to election. 6. The controversies, now, would revolve essentially on the question whether the order of the Joint Registrar issued under Rule 176, rescinding the resolution dated 30.8.2008 would take away the subtractum of the electoral process commenced by the Election Commission or whether it could be trimmed down to effect only any other decision touching the entitlement of any newly admitted persons as members to vote. Now, the normal approach in law relating to election, except in exceptionally exceptional circumstances, is that once the electoral process is commenced, the authorities including courts would keep their hands off and permit the process of election to continue. In co- operative sector, the process commences under Rule 35A by the WPC.30413/08 & con. cases Page numbers statutory requirement of the committee to draw up a resolution and to prepare the voters list for being used in connection with the election. The electoral process having commenced by that, the follow up action by the State Co-operative Election Commission is, prima facie, only one which would result in a statutory notification of the election, which is, under normal circumstances, again, mandatory and inexcusable. Therefore, the entire process commenced by the resolution dated 30.8.2008, followed by notifications of the Election Commission dated 3.10.2008 and 9.10.2008 has to be carried on provisionally and subject to further orders, without affecting the rights of the parties. I also, prima facie, find no grounds to exclude the petitioners in W.P(C).31227/08 from participation in the election. In the light of what is stated above, the following orders are provisionally issued as interlocutory, to govern the electoral process, pending further consideration of these writ petitions: WPC.30413/08 & con. cases Page numbers (i) The nomination papers of the petitioners in W.P(C). 31127/08 would be accepted and they will also be treated as candidates in the election, subject to further orders. (ii) The Administrator in office will promptly draw up a resolution, fixing the date for polling and will intimate the same to the Election Commission through proper channel, following which, polling will be held on that date. (iii) The votes of those persons admitted to membership on the basis of the resolution dated 30.8.2008 will be collected in a separate ballot box. The declaration of the result will be withheld to obtain further orders from this Court. (iv) The Electoral Officer and the Returning Officer will ensure that the votes are counted and results maintained in a sealed cover. THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.