IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 WP(C).No. 20227 of 2011(C) ---------------------------------- PETITIONER(S): ------------------- KERALA VYAPARI VYVASAYI EKOPANA SAMITHY, ELAMAKKARA UNIT, VYAPARA BHAVAN, ELAMAKKARA, KOCHI -17, REP. BY ITS SECRETARY, T.J. SEBASTIAN, AGED 55, S/O. JOSEPH, TECHNO FREEZE, L.F.C ROAD, KALOOR, KOCHI -17. BY ADVS. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) RESPONDENT(S): -------------------- 1. THE SUB INSPECTOR OF POLICE, KALAMASSERY POLICE STATION, SOUTH KALAMASSERY, KALAMASSERY - 683 104. 2. E.S. VIJAYAN, S/O. K.K. SANKARAN, 1/85, NOPURA, DIVINE NAGAR, SOUTH CHITTOOR, KOCHI - 682 027. 3. P.H. ISMAIL, S/O.P.K. HYROSEKUTTY, PEEDIAKKAL HOUSE, DESABHIMANI ROAD, KALOOR, KOCHI -682017. 4. KUNJUMON, S/O. P.V. JOSEPH, PUTHUSEERY BAKERY, RAGHAVAN PILLAI ROAD, KOCHI - 682 026. 5. T.G. VENUGOPAL, SUDHI STORES, YUVAKALATHARAN ROAD, ELAMAKKARA, KOCHI - 682 026. svs .............2/-.... ...2... WPC.NO.20227/2011 6. K.G. ANTONY, MANJU SHOE MART, KARUKAPILLY JUNCTION, KALOOR, KOCHI - 682 017. 7. P.T. AUGUSTINE, PANAKKAL TIMES, POTTAKUZHY JUNCTION, KALOOR, KOCHI -682 017. 8. EDWARD FOSTUS, DAN FOSS TAILORS, LFC ROAD, KALOOR, KOCHI - 682 017. 9. K.K. CHANDRASEKHARAN, KALATHIL TOWERS, PUTHUKKALAVATTOM, ELAMAKKARA, KOCHI - 682 026. 10. SAJI.K.P, KANDANCHERIL AGENCIES, KARUKAPILLY, KALOOR, KOCHI - 682 017. 11. MUHAMMAD KUNJU HAJI.K.K, KITHS BAKERY, KARUKAPPILLY, KALOOR, KOCHI - 682 017. 12. CHAKRAPANI, HAIR CUTTING, POTTAKUZHI, KOCHI - 682 017. 13. K.B. SATHAR, KB STORES, DESHABHIMANI ROAD, KALOOR, KOCHI - 682 017. 14. C.G. CHANDRAN, VENKITESWARA STORES, PUNNAKKAL JUNCTION, ELAMAKKARA, KOCHI -682 026. R1 BY GOVT.PLEADER SRI.T.K.VIPINDAS R2-4 BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN R5-12 & 14 BY ADV. SMT.R.RANJINI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO.20227/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE BYELAWS OF THE PETITIONER ASSOCIATION. P2: COPY OF THE LETTER ISSUED BY THE DISTRICT COMMITTEE DATED 23/06/2011. P3: COPY OF THE LETTER DATED 28/06/2011 ISSUED TO THE GENERAL SECRETARY, KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY DISRICT COMMITTEE. P4: COPY OF THE LETTER DATED 30/06/2011 ISSUED BY GENERAL SECRETARY, KERALA VYAPARI VYAVASAYI EKOPANA SAMITHY DISTRICT COMMITTEE. P5: COPY OF ELECTION NOTIFICATION DATED 02/07/2011. P6: COPY OF THE RECEIPT DATED 11/07/2011 ISSUED BY THE N.S.S. KARAYOGAM, ELAMAKKARA. P7: COPY OF THE COMPLAINT DATED 29/06/2011 SUBMITTED BY THE PRESIDENT OF THE PETITIONER ASSCIATION TOGETHER WITH THE RECEIPT DATED 30/06/2011. P8: COPY OF THE COMPLAINT DATED 19/07/2011, TOGETHER WITH THE RECEIPT DATED 20/07/2011. P9: COPY OF THE PETITION DATED 23/07/2011. P10: COPY OF NOTICES ISSUED TO E.S.VIJAYAN. P11: COPY OF NOTICE ISSUED TO EDWARD FOSTUS. P12: COPY OF REPRESENTATION SUBMITTED BY PETITIONER. P13: COPY OF NOTICE DATED 29/06/2011. RESPONDENT'S EXHIBITS: R10(1):COPY OF THE INSTRUCTIONS DATED 16/06/2011 OF THE DISRICT COMMITTEE. R10(2):COPY OF THE LETTER DATED 23/07/2011. /TRUE COPY/ P.A. TO JUDGE. svs PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------- WP(C).NO. 20227 of 2011 --------------------------------- Dated this the 26th day of July, 2011 JUDGMENT Abdul Rehim,J. Petitioner is the Elamakara unit of the 'Kerala Vyapari Vyavasayi Ekopana Samithy' represented through its Secretary. The petitioner is seeking directions to the 1st respondent to provide protection for conduct of elections in general Body meeting of the unit scheduled on 27.7.11, from the apprehended interferences and obstructions of respondents 2 to 14 and their men. Contention of the petitioner is that, membership of respondents 2 to 14 are not in currency and they are not entitled to vote in the elections. It is contended that the elections were scheduled as per the directions of the District Committee of the association and the notification regarding the elections was published as per Ext.P5. After all arrangements were made, respondents 2 to 14, who is claiming support of one of the factions in the District committee, had openly declared that the elections as notified will not be allowed to take place. Hence the WP(C) .20227/2011 2 petitioner apprehends that there will be threat and obstructions. Therefore interference of this court is sought for. 2. In the counter affidavit filed on behalf of respondents 5 to 12 and 14, which was also adopted by counsel appearing for other respondents, it is stated that the District Committee of the respondents association had issued Ext.R10(2) letter directing the petitioner to restrain from conducting the general body for election of the office bearers, scheduled on 27.7.2011. In a reply affidavit filed by the petitioner Ext. P12, copy of reply letter issued by the petitioner to the District Committee is produced, giving explanation regarding the dispute pertaining the membership of respondents 2 to 14. F 3. rom the facts and circumstances as narrated above we realise that there exists factional dispute in the association at the District level and there exists an issue with respect to eligibility of certain persons to vote in the elections. We further notice that the District Committee of the petitioner association had already issued directions not to conduct the elections as scheduled under Ext.P5 notification. We are of the prima facie opinion that these are matters which could not be resolved in exercise of the WP(C) .20227/2011 3 jurisdiction vested on this court under Article 226. It is left open to the petitioner as well as the contesting respondents to work out their remedies by approaching the competent civil court under common law. 4. However, it is brought to our notice that, a suit had already been filed by certain members of the petitioner who are contesting for the elections which is scheduled on 27.7.2011, as OS.660/11, before the Munsiff court, Ernakulam. It is further brought to our notice that an interim order was already issued by that court, appointing an Advocate Commissioner to oversee the elections scheduled on 27.7.2011 and to see that the elections are held in an orderly manner by using approved final voters list of the petitioner. We also notice that the Munsiff Court had permitted the Advocate Commissioner to seek protection from the local police, if fit is found necessary to perform his duties. 5. Smt. R.Ranjini, learned counsel appearing for respondents 5 to 12 and 14 as well as learned counsel appearing for other contesting respondents submitted that, they were not aware about filing of the suit or the interim order passed. It is also contended that they were not parties in the civil suit . We WP(C) .20227/2011 4 are of the opinion that it is left open to them to get impleaded in the suit if so advised and to seek appropriate remedy. We leave open the challenge regarding validity of the elections if any conduced in the unit. In view of pendency of the civil suit and in view of the interim order issued by the Munsiff Court we are not proposing to pass any further orders in this writ petition. All the contentions raised on either side are left open for agitation. The writ petition is dismissed reserving liberty to the parties to agitate the issue before the competent forum. PIUS C. KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE pmn/ WP(C) .20227/2011 5