IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 WP(C).No. 21778 of 2010(V) --------------------------------------- PETITIONER: ------------------- AKBAR.M.K,S/O.CHERIYAKOYA, MALMIKAKKADA HOUSE,KALPENI ISLAND, U.T.OF LAKSHADWEEP. BY ADVS. SRI.BABU S. NAIR, SMT.M.T.SHEEBA, SRI.P.A.RAJESH, SRI.K.RAKESH, SMT. VRINDA PAUL, SRI.R.VENUGOPAL. RESPONDENTS: ------------------------ 1. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, U.T.OF LAKSHADWEEP,KAVARATHI,KAVARATHI ISLANDS, PIN-682 555. 2. THE SUB DIVISIONAL OFFICER,KALPENI ISLANDS(THE RETURNING OFFICER,KALPENI ISLAND CO-OPERATIVE SUPPLY AND MARKETING SOCIETY), LTD.NO.LMA 2,KALPENI ISLAND,U.T.OF LAKSHADWEEP, PIN-682 557. 3. THE KALPENI ISLAND CO-OPERATIVE SUPPLY AND MARKETING SOCIETY,LTD.NO.LMA 2,KALPENI, REPRESENTED BY ITS SECRETARY,PIN:682 557. R1 & R2 BY ADV. SRI.S.RADHAKRISHNAN,S.C,LAKSHADWEEP ADMN., R3 BY ADV. SRI.P.V.MOHANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.21778/2010-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RECEIPT SHOWING THE REMITTANCE OF SHARE FEE BY THE PETITIONER, DTD. 14/12/1998. EXT.P.2: COPY OF THE ORDER OF THE R.1. DTD. 22/06/2010 AS NO.F.NO.10/24/2010- COOP. EXT.P.3: COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P.(C). NO.19770/2010 DTD. 25/06/2010. EXT.P.4: COPY OF THE VOTERS LIST PREPARED BY THE R.3. SOCIETY, IN RESPECT OF MALE VOTERS OF THE R.3. SOCIETY FOR THE PURPOSE OF THE ELECTION. EXT.P.5: COPY OF THE OBJECTION GIVEN BY THE PETITIONER TO THE R.2. DTD. NIL. EXT.P.6: COPY OF THE REPRESENTATION SUBMITTED BY THE PRESIDENT,LAKSHADWEEP PREDESH YOUTH CONGRESS COMMITTEE DTD. 15/06/2010 TO THE ADMINISTRATOR, U.T. OF LAKSHADWEEP. EXT.P.7: COPY OF THE ORDER ISSUED BY THE R.1. DTD. 05/07/2010 AS NO. F. NO. 10/18/2010-COOP. EXT.P.8: COPY OF THE BYE-LAWS TO CONDUCT THE ELECTION TO THE COMMITTEE OF THE SOCIETY. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE INTIMATION F. NO. 24/2010---SMS KLP DTD. 21/05/2010. EXT.R3.B: COPY OF THE NOTICE F.NO.24/2010-11-SMS KLP DTD. 01/06/2010. EXT.R3.C: COPY OF THE NOTIFICATION F.NO.01/01/2010-SMS KLP (ELC) DTD. 07/06/2010. EXT.R3.D: COPY OF THE PROCEEDINGS F. NO. 10/1/2007-CO-OP. DTD. 30/06/2010. EXT.R3.E: COPY OF THE NOTIFICATION F.NO.01/01/2010-SMS KLP (ELC) DTD. 06/07/2010. EXT.R3.F: TRUE EXTRACT OF CLAUSE 17A. OF THE BYE-LAWS. EXT.R3.G: TRUE EXTRACT OF CLAUSE 52 OF THE BYE-LAWS. //TRUE COPY// P.S. TO JUDGE. Prv. K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO: 21778 OF 2010 V ----------------------------------------------------------- Dated this the 23rd July, 2010. JUDGMENT The petitioner is a member of The Kalpeni Island Co-operative Supply and Marketing Society at Kalpeni (hereinafter referred to as the 'Society' for short). The petitioner has filed this writ petition challenging Ext.P7 proceedings by which elections to the Managing Committee of the society is scheduled to be conducted on 31/7/2010. 2. The tenure of the present Managing Committee in office was over in the year 2008. However, the tenure was being extended from time to time by the first respondent. Later on, a notification was issued on 7/6/2010 scheduling the election to the Managing Committee on 27/6/2010. However, during scrutiny of the nominations received, the Returning officer rejected all the nominations on 18/6/2010. The first respondent subsequently directed the second respondent to take back all the nomination papers that were rejected and to conduct the election as scheduled. The said order Ext.P2, was the subject matter of challenge in W.P(C) No: 19770/2010 filed by the petitioner. The writ petition was allowed by judgment dated 25/6/2010, which is Ext.P3. In Ext.P3, WPC 21778/2010 2 the first and second respondents were directed not to proceed with the election pursuant to the proceedings issued by the first respondent which was Ext.P7 therein. The first respondent was directed to issue a fresh election notification and a fresh schedule for the conduct of the election in accordance with law. It has also been ordered in Ext.P3 that the election to the Managing Committee of the third respondent society shall be conducted only in accordance with the said schedule. Thereafter, the impugned proceedings Ext.P7 has been issued by the first respondent directing the conduct of a fresh election in accordance with a fresh schedule to be published by the Returning Officer . 3. According to the petitioner, since Ext.P3 has directed the issue of a fresh election notification as well as a fresh schedule of election, the impugned proceedings Ext.P7 cannot be said to be in sufficient compliance with the said direction. The petitioner contends that by Ext.P7 what is proposed to be done is to start the procedure from the stage of publication of the schedule of election alone and, therefore, the same is bad. According to the petitioner, the formality of publishing a draft voters list, finalisation thereof after inviting fresh objections, appointment of a Returning Officer and all other formalities that are necessary for the conduct of a WPC 21778/2010 3 fresh election would have to be initiated de novo for the purpose of conducting the present election. Therefore, the petitioner seeks appropriate directions for the conduct of an election by starting the entire proceedings afresh. 4. This writ petition is opposed by the respondents. On behalf of the third respondent society, a counter affidavit has been filed submitting that the Board of Directors of the Society had decided to conduct the election on 27/6/2010. Therefore, the Registrar of Co-operative Societies had by order dated 29/5/2010 appointed a Returning Officer to conduct the election. As per notice dated 21/5/2010 the Secretary had published a list of the members of the society who were eligible to be included in the voters list. The said list was forwarded to the Returning Officer who published the same as the draft voters list. Objections to the said list were called for as per notice dated 1/6/2010 which is Ext.R3(B). Though the last date for filing objections was fixed as 5/6/2010, nobody submitted any objections and therefore, the draft voters list was finalised on 6/6/2010. Thereafter the Returning Officer by a notification dated 7/6/2010 scheduled the election to be conducted on 27/6/2010. It was in accordance with the schedule that was published by the Returning Officer that the scrutiny of the WPC 21778/2010 4 nomination papers was conducted on 18/6/2010. During the scrutiny, the Returning Officer rejected all the nomination papers. Therefore, the Registrar had directed him to take back all the nomination papers and to conduct the elections before 30/6/2010. However, this Court by Ext.P3 judgment set aside the said proceedings and directed the issue of a fresh notification for the reason that the schedule for the conduct of election published by the Returning Officer had been upset by the action of the Returning Officer. It has also been found in Ext.P3 that matters could not be set right by the issue of Ext.P7 proceedings therein but that a fresh notification and schedule would have to be issued. 5. According to the third respondent, a fresh notification dated 6/7/2010 was issued by the Returning Officer proposing to hold the election on 31/7/2010 which is Ext.R3(E). As per Clause 17A(10) of the bye laws, the process of election has to be started afresh by the Returning Officer with the same voters list. Since no objections had been received to the voters list from any of the members within time, there was also no need to go through the procedure of publishing a draft voters list again and inviting fresh objections. It is further submitted that the Society has incurred expenses to the tune of Rs.50,000/- for the election process. The WPC 21778/2010 5 third respondent points out that the petitioner is a person whose name does not figure in the voters list. Though the petitioner is alleged to have submitted objections to the voters list Ext.P5, the same was received only on 15/6/2010 long after the final voters list had been published. It is also pointed out that the attempt of the petitioner is only to delay the conduct of the election some how or the other. 6. I have heard Mr. Babu S.Nair who appears for the petitioner, Shri. S.Radhakrishnan who appears for respondents 1 and 2 and Mr. P.V.Mohanan who appears for the third respondent society. I have been taken through the documents in the case and the decisions relied on by the counsel. I have also considered the rival contentions anxiously. 7. It is not in dispute that the term of office of the present Managing Committee has expired long back and that they had been continuing in office on the basis of extensions granted from time to time . The effort of the authorities have been to have an election conducted to the Managing Committee of the society without further delay. As per the decision of the Managing Committee, the election should have been conducted on 27/6/2010. As the first step towards conduct of the election, the bank had issued a notice WPC 21778/2010 6 on 21/5/2010 and published a list of eligible members who were entitled to vote. No objections were received to the said list. On 29/5/2010, the Registrar appointed the Returning Officer for the conduct of the election. On 1/6/2010 the list prepared by the society was forwarded to the Returning Officer. The Returning officer published the same and invited objections to the same as evident from Ext.R3(B). As per Ext.R3(B), the objections were to be submitted before 5/6/2010. The time stipulated was in conformity with the provisions of the bye laws. Since no objections were received, the final list was published on 6/6/2010. 8. According to the counsel for the petitioner, the final list does not include the names of more than 700 members of the society. Further, it is contended that the family names of the members, the ages of the respective voters and other details that are necessary to identify each member have not been provided in the voters list. Though it is the case of the petitioner that more than 700 members have been omitted from the voters list, it is worth noticing that not even a single objection was received when the draft voters list was published, first by the society and later by the Returning Officer. It is also worth noticing that no person other than the petitioner has raised any complaints regarding such WPC 21778/2010 7 exclusion of voters. Further, a perusal of the voters list shows that the membership number of each voter is mentioned therein with the family name and the names of each voter. A voter can certainly be identified with reference to his membership number, the name of his family and his name. As rightly contended by the counsel for the respondents, the community in the islands being very small and the inhabitants being well known to each other, it is not at all difficult to identify the voters on the basis of the details furnished in the voters list. It is also pointed out that the society was formed in the year 1964 and that the register of members was being maintained during all the past years, in the same format. Therefore, there are absolutely no grounds for adding any further details to the voters list. Since the draft list was published twice, first in the form of a members list and thereafter as a draft voters list, in the absence of any objections on both occasions, I do not think there is any infirmity in the present voters list. 9. The dispute relating to the election started only when the nominations were scrutinised by the Returning Officer. On the rejection of all the nomination papers en masse, a stalemate was created by the Returning Officer. The schedule of the proposed election was also upset. The first respondent intervened at this WPC 21778/2010 8 stage and directed the Returning Officer to accept all the nominations and to proceed with the election so as to complete the same by 30/6/2010. As per Ext.P3 judgment of this Court, it has been found that the situation could not be remedied by the said proceedings of the first respondent for the reason that the entire election schedule had been upset by the action of the Returning Officer. Therefore, the proceedings issued by the Returning Officer were set aside and a fresh election was directed to be conducted after issuing a fresh notification. The issue has been concluded in Ext.P3 in the following manner:- “It is not in dispute that the scrutiny of nomination papers was conducted on 18/6/2010 as per the schedule already notified. It is also not in dispute that the Returning Officer had after scrutiny, rejected all the nomination papers on the said date. Therefore, the schedule for the conduct of election as notified was already upset by the above proceedings. The said situation is not capable of being remedied by the issue of Ext.P7 and by the direction to conduct the rest of the procedures from the point at which the schedule was disrupted. The entire procedure for the conduct of election would have to be started afresh by the issue of another notification. WPC 21778/2010 9 Therefore, the proceedings Ext.P7 now issued by the 1st respondent is unsustainable. In view of the above this writ petition is allowed. The 1st and 2nd respondents are directed not to proceed with the election pursuant to Ext.P7 proceedings issued by the 1st respondent. The 1st respondent shall issue a fresh election notification and a fresh schedule for the conduct of the election in accordance with law. The election to the Managing Committee of the 3rd respondent Society shall be conducted only in accordance with the said schedule. No costs.” What is to be decided in the present case is whether the direction in Ext.P3 has been complied with by the issue of the present proceedings. 10. On 30/6/2010 Ext.R3(D) proceedings were issued by the first respondent informing the third respondent that elections to the societies which included the third respondent also would have to be completed before 31/7/2010 and that no extension would be granted under any circumstances. The judgment of this Court is dated 25/6/2010. Therefore, in order to complete all the procedures for the election within the time frame stipulated in Ext.R3(D), the third respondent society adopted a resolution on 3/7/2010 resolving to conduct the election on 31/7/2010. On WPC 21778/2010 10 receipt of the said resolution, the first respondent issued Ext.P7 proceedings notifying the election on 31/7/2010 and directing the Returning Officer to publish a fresh election schedule. Accordingly, a fresh schedule of elections has been issued by the Returning Officer which is Ext.R3(E). According to the counsel for the petitioner since it has been directed in Ext.P3 that a fresh election notification would have to be issued, the proceedings would have to be commenced from the stage of issuing a fresh election notification, finalisation of the voters list, appointment of the Returning Officer and other formalities like publication of a fresh schedule of election etc. It is worth noticing that the intention in Ext.P3 was not that the entire procedure starting right from the issue of an election notification should be initiated afresh. The object of the direction was only to ensure that the election was conducted without the schedule being upset. In the present case however the Managing Committee took a fresh decision to conduct the election on 31/7/2010. Pursuant to the said decision, the first respondent has issued Ext.P7 proceedings. As per Ext.P7 the same Returning Officer has been directed to complete the election after issuing a fresh schedule. It was pursuant thereto that Ext.R3(E) has been issued. It is to be borne in mind that the object of WPC 21778/2010 11 publishing a schedule for the conduct of an election is to intimate the voters before hand of the relevant dates on which the various formalities leading up to the actual polling would be conducted so that they would be able to participate in each of the said procedures. Only such a procedure would supply the necessary openness that is necessary to ensure that the election is conducted in a fair manner. In the present case since the schedule published by the Returning Officer was already upset, it was directed that an election should be conducted without the publication of a fresh election schedule. Thereafter, as per Ext.R3(E) a fresh election schedule has been notified by the Returning Officer. The action of the Returning Officer is supported by clause 17A(10) of Ext.R3(F) bye laws that are applicable to the society. 11. The relevant clause provides for the starting of the process of election afresh by the Returning Officer with respect to the same voters list, where the number of valid nominations fall short by more than half the members to be elected. Since the bye laws also stipulate a similar procedure of conducting an election on the same voters list where an impasse is created by the number of valid nominations falling short by more than half the members to be elected, it is found that the procedure adopted by the WPC 21778/2010 12 Returning Officer in the present case is justified in the circumstances. Ext.R3(B) shows that the same has been issued in form No:1, in conformity with Clause 17A(6) of the election bye laws. Therefore, I do not find any infirmity with the impugned action of the Returning Officer in proceeding with the election afresh, on the basis of the same voters list. 12. The counsel for the third respondent has relied on the decision in Election Commission of India v. Ashok Kumar {(2000) 8 SCC 216} to support his contention that where the process of an election is called in question at any stage, which would have the effect of retarding or protracting the elections in any manner invoking of the judicial remedy would have to be postponed till the election proceedings are completed. As per Ext.R3(E), the polling is scheduled to be conducted on 31/7/2010 and therefore, it is submitted that there are no grounds to interfere with the election schedule that is evidenced by Ext.R3(E). Since it has already found that there is no violation of the directions contained in Ext.P3 by the issue of a fresh election schedule as evidenced by Ext.R3(E) so as to complete the proceedings before 31/7/2010 as stipulated in Ext.R3(D), I do not find any reason to interfere with the election that is scheduled to be conducted. For the above reasons I find that the WPC 21778/2010 13 petitioner is not entitled to any of the reliefs claimed in this writ petition. This writ petition fails and is accordingly dismissed. No costs. K. SURENDRA MOHAN Judge jj WPC 21778/2010 14