Election process cannot be interfered with once commenced : Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THE HONOURABLE MR. JUSTICE K.HARIPAL THURSDAY THE 07TH DAY OF JANUARY 2021 17TH POUSHA 1942 WA.No.38 OF 2021 AGAINST THE ORDER DATED 22.12.2020 IN WP(C) 27583 2020(W) OF HIGH COURT OF KERALA SUNNY CHERIAN AGED 54 YEARS S O.CHERIAN KUTTIPPURATHU HOUSE KATTAPPANA P.O IDUKKI DISTRICT PIN 685 808 REJI THOMAS AGED 49 YEARS S O. THOMAS AMBATTU HOUSE UPPUKANDAM P.O IDUKKI DISTRICT PIN 685 514 MATHEW JOSEPH AGED 60 YEARS S O. JOSEPH PULIKKATHAZHE KADAMAKKUZHI P.O IDUKKI DISTRICT PIN 685 515 P.J THOMAS AGED 66 YEARS S O. JOSEPH PORUNNOLIL KATTAPPANA P.O IDUKKI DISTRICT PIN 685 508 JOY THOMAS AGED 65 YEARS S O. THOMAS POOVATHUMOOTTIL KOZHIMALA P.O IDUKKI DISTRICT PIN 685 511 BHAVANA SUBHASH AGED 55 YEARS W O. SUBHASH MARIPPURATH VELLAYAMKUDI P.O IDUKKI DISTRICT PIN 685 515 W.A.No.321 P.S MARYDASAN AGED 59 YEARS S O.SEBASTIAN PANDYAMAKKAL KATTAPPANA P.O IDUKKI DISTRICT PIN 685 508 BY ADVS.SRI.K.K.CHANDRAN PILLAIOFFICE OF THE ASSISTANT REGISTRAR OF CO OPERATIVE SOCIETIESNAYARUPARA P.O IDUKKI DISTRICT PIN 685 602 THE STATE COOPERATIVE ELECTION COMMISSION OFFICE OF THE STATE CO OPERATIVE ELECTION VIKAS BHAVAN THIRUVANANTHAPURAM PIN 695 033 KATTAPPANA RURAL DEVELOPMENT CO OPERATIVE SOCIETY LTD NO 1 591 KATTAPPANA P.O IDUKKI REPRESENTED BY ITS SECRETARY THE BOARD OF DIRECTORSPAINAVU P.O IDUKKI PIN 685 603 THE SECRETARY KATTAPPANA RURAL DEVELOPMENT CO OEPRATIVE SOCIETY LTD NO. 1 591 KATTAPPANA P.O IDUKKI PIN 685 508 STATE OF KERALA REPRESENTED BY THE SPECIAL SECRETARY CO OPERATION DEPARTMENT GOVT. SECRETARIAT THIRUVANANTHAPURAM 695 001 R1 & R2 BY S.C.SRI.R.LAKSHMI NARAYANAN R3 R4 & R9 BY S.C.SRI.P.C.SASIDHARAN R8 & R10 BY G.P.SRI.RENIL ANTO KANDAMKULATHY THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2021 THE COURT ON THE SAME DAY DELIVERED THE W.A.No.321 Ravikumar J This intra court appeal is directed against the interim order dated 22.12.2020 in W.P.(C)No.275820. The writ petitioners are the appellants. They filed the writ petition mainly seeking quashment of Ext.P5 Government Order dated 23.4.2020 extending the period of Board of Directors of various Co operative Societies up to January 2021 and seeking issuance of a writ of mandamus or appropriate writ commanding the first respondent viz. the Electoral Officer to remove the names of the members of the third respondent Co operative Society as contained in Ext.P22 from the final voters list published by the first respondent in connection with the election to the Board of Directors of the third respondent scheduled as per Exts.P6 and P7. They also sought declarations on the following lines: “e) To declare by the issuance of appropriate writ order or direction that the 3rd and 4th respondents are incompetent to take Ext.P7(a) resolution requesting the 2nd respondent to conduct election to the Board of Directors of the 3rd respondent f) To declare by the issuance of appropriate writ order or direction that the third and 4th respondents have no competence to admit new members with voting right W.A.No.321 to the third respondent on the basis of the extension of the period of the committee as per Ext.P5 g) To declare by the issuance of appropriate writ order or direction that the enblock enrollment of members to the 3rd respondent Society as contained in Exts.P16 and P22 without complying with the provisions contained in Section 16 of the Kerala Cooperative Societies Act 1969 and Rule 16 of the Kerala Cooperative Societies Rules 1969 is illegal and therefore to quash Exts.P16 and P22 by the issuance of a writ in the nature of certiorari or such other appropriate writ order or direction .” By way of an interim relief they prayed thus: “For the reasons stated in the writ petition and in the affidavit accompanying thereto it is humbly prayed that this Hon ble Court may be pleased to stay all further proceedings by respondents 1 & 2 for conducting election to the Board of Directors of the 3rd respondent Society scheduled on 10.01.2021 pursuant to Exts.P6 & P7 during the pendency of the above writ petition before this Hon ble Court.” The learned Single Judge after hearing the arguments of the learned counsel on both sides declined to grant the interim relief sought for as per the impugned order dated 22.12.2020. This appeal is preferred in the said circumstances 2. Heard the learned Senior Counsel Sri.K.K.Chandran Pillai for the appellants Sri.P.C.Sasidharan the learned counsel appearing for respondent Nos.3 4 and 9 learned Standing Counsel Sri.R.Lakshmi W.A.No.321 Narayanan for respondent Nos.1 and 2 as also the learned Government 3. Ext.P6 is the election notification dated 24.11.2020 issued by the 2nd respondent. Going by the same election to the Managing Committee of the third respondent society is to be held on 10.1.2021 from 9 a.m. onwards. Prayer No.(d) in the writ petition itself would reveal that after issuing a preliminary voters list in the matter of conduct of election to the Managing Committee of the third respondent a final voters list was also published. The counter affidavit filed in the writ petition on behalf of respondents 4 to 7 would reveal that the final voters list was published on 5.12.2020. These facts are not in dispute As noticed hereinbefore in terms of Ext.P6 election notification election is scheduled to be held on 10.1.2021. The impugned interim order passed by the learned Single Judge would reveal that taking into account the nature of the allegations the Writ Court prima facie arrived at the conclusion that disputed questions of fact involved for resolution in the writ petition and they could not be gone into in the writ petition at present. Taking note of the aforesaid situations as also the decisions of the Hon ble Apex Court in S.S.S.J.S. S.D.U. Sanstha v State of Maharashtra Shaji K. Joseph v V.Viswanath 4 SCC 429] and Shri Sant Sadguru W.A.No.321 Janardan Swami Sahakari Dugdha Utpadak Sanstha and Anr. v. State of Maharashtra and Ors.8 SCC 509] the learned Single Judge declined to pass an interim order as sought for virtually holding that once the election process was commenced the same shall not be interfered with. We may hasten to hold that though this Court would be loathe to interfere with an election process once it is commenced there is no inflexible or invaluable position interdicting interference with an election process. The pleadings in this appeal and the writ petition would reveal that the appellants allege illegality in the matter of extension of the term of Managing Committees of Co operative Societies beyond five years as per Ext.P5 and according to them the third and fourth respondents got no competence to admit new members with voting right to the third respondent society during the extended period of the term. Essentially they allege non compliance with the statutory provisions for enrollment of members and also allege enmasse enrollment in blatant violation of the prescribed procedures. The appellants also allege non consideration of objections raised by them against the preliminary voters list Virtually the appellants want to disfranchise a large number of members whose names figured not only in the preliminary voters list but also in the final voters list and that is why they seek removal of W.A.No.321 names of members of the third respondent contained in Ext.P22 from the final voters list. The tenor of the pleadings in the writ petition as also in the writ appeal would undoubtedly go to show that the appellants are fully aware of the publication of the final voters list. In this context it is to be noted that there is no challenge against the final voters list and it is also not produced either in the writ petition or in the writ appeal. Be that as it may the indisputable position is that election is scheduled as per Ext.P6 to be held on 10.1.2021 and in that regard in terms of the election notification preliminary voters list as also final voters list were published. Ineligibility of a large number of members of the third respondent society to be eligible for voting is under challenge raising enmasse enrollment in flagrant violation of the statutory provisions governing enrollment. 4. Upon hearing the learned Senior Counsel appearing for the appellants and going through the pleadings in this appeal as also in the writ petition we do concur with the learned Single Judge that fact finding exercise to certain extent requires to fix the tenability of the allegations raised. To what extent such exercise is possible or permissible in view of the nature of the allegations with supporting materials is certainly a matter initially for the Writ Court to consider The observations and findings of the learned Single Judge in the W.A.No.321 impugned interim order can only be taken as prima facie conclusions and findings arrived at for the purpose of deciding the entitlement of the appellants to the interim relief sought for. In view of the fact that the main prayer in the writ petition is for quashment of Ext.P5 whereby the term of the committee of the third respondent as also all the Co operative Societies was extended beyond the period of five years to be precise for a period of five years and six months and consequential declaration is also sought for to the extent that the third and fourth respondents were incompetent to admit members into the third respondent society during the extended period we are of the considered view that the conduct of the election as scheduled by itself would not defeat the case and contentions of the appellants. Certainly depending on the fate of challenge against the competency to extend the term of Co operative Societies as has been done under Ext.P5 the legality of enrollment effected during the extended period as also the right to cast votes by such enrolled members have to be decided Several contentions were raised based on various statutory provisions before us. However taking note of the aforesaid position as also the fact that a probe into such matters and any observation or finding would leave nothing for decision in the writ petition we are of the view that without entertaining such contentions at this stage and in view of W.A.No.321 the pendency of the writ petition it is only befitting to leave the entire matter to be decided in the writ petition however making it clear that the entire proceedings including the conduct of election would be subject to the result of the writ petition. Ordered accordingly The Writ Appeal stands disposed of as above C.T.RAVIKUMAR Judge Sd Sd K.HARIPAL Judge TKS W.A.No.321 COPY OF CIRCULAR NO.E(2)27 2011 SCES(CIRCULAR NO.07 2011) DATED 21.10.2011 OF THE COOPERATIVE COPY OF CIRCULAR NO.E(2)399 2011 SCES(CIRCULAR NO.09 2012) DATED 10.07.2012 OF THE COOPERATIVE COPY OF LETTER NO C R B. 3931 2020 DATED 10.11.2020 OF THE JOINT REGISTRAR OF CO OPERATIVE SOCIETIES IDUKKI COPY OF LETTER NO 930 2020 DATED 21.12.2020 OF THE ASSISTANT REGISTRAR OF COOPERATIVE SOCIETIES IDUKKI

Summary: Once the election process is commenced, the same cannot be interfered with. The High Court bench consisting of J. C. T. Ravikumar and J. K. Haripal, dismissed a writ appeal in the matter of Sunny Cherian &amp; Ors. v. The Electoral Officer &amp; Ors. [W.A. No. 38/2021]. The writ petitioners/ appellants filed a writ petition mainly seeking quashment of a Government order extending the period of Board Directors of various Co-operative Societies up to January, 2021 and seeking issuance of writ of mandamus or appropriate writ commanding the respondent, Electoral Officer to remove the names of the members of the other respondent, Co-operative Society from the final voters’ list published in connection with the election to the Board of Directors. The learned judge declined to grant the interim relief sought for and hence, the present appeal was preferred. The High Court found that the previous judgement wherein the passing of the interim order was declined was relied on the judgement of Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugha Utpadak Sanstha and Anr v. State of Maharashtra and Ors. [(2001) 8 SCC 509], wherein it was stated that “virtually, holding that once the election process was commenced the same shall not be interfered with”. Further the High Court held that “We may hasten to hold that though this Court would be loathe to interfere with an election process once it is commenced there is no inflexible or invaluable position interdicting interference with an election process. The pleadings in this appeal and the writ petition would reveal that the appellants allege illegality in the matter of extension of the term of Managing Committees of Co-operative Societies beyond five years as per Ext.P5 and according to them, the third and fourth respondents got no competence to admit new members with voting right to the third respondent society during the extended period of the term”. The court found that the appellants alleged non-compliance with the statutory provisions for enrollment of members and also alleged enmasse enrollment in blatant violation of the prescribed procedures. The appellants also alleged non-consideration of objections raised by them against the preliminary voters’ list.