Madras High Court
K.V.Jude Dev vs The Commissioner on 6 April, 2018
Author: M.S.Ramesh
Bench: M.S.Ramesh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.04.2018
RESERVED ON : 05.04.2018
PRONOUNCED ON: 06.04.2018
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
Writ Petition (MD) No.7184 of 2018
and
W.M.P(MD)No.6910 of 2018
K.V.Jude Dev ... Petitioner
Vs.
1.The Commissioner,
Dairy Co-operative Societies Ltd.,
Madhavaram Milk Colony,
Chennai 600 051.
2.The Chief Election Commissioner,
Co-operative Societies,
Teynamepet, Chennai.
3.The District Election Officer/
Deputy Registrar (Dairy),
Kanyakumari District Dairy
Co-operative Societies Ltd.,
District Collectorate, Nagercoil,
Kanyakumari District 629 001.
4.T.Kasthuribai,
The District Election Officer/
Deputy Registrar (Dairy),
Kanyakumari District Dairy
Co-operative Societies Ltd.,
District Collectorate, Nagercoil,
Kanyakumari District 629 001.
5.S.A.Ashokan,
Chairman,
Kanyakumari District Milk Producers
Co-operative Union (Aavin), Paalpannai,
Nagercoil, Kanyakumari District 629 001.
6.Lenin,
Electoral Officer/ Senior Inspector of Dairy
Office of Kanyakumari District Dairy
Co-operative Societies Ltd.,
District Collectorate, Nagercoil,
Kanyakumari District 629 001.
7.T.Iyappan,
Election Officer,
Neyyoor Mekankarai Ramachandra Nadar
Milk Producer Co-operative Society,
West Neyyoor Post 629 803,
Kanyakumari District.
8.The Secretary,
Neyyoor Mekankarai Ramachandra Nadar
Milk Producer Co-operative Society,
West Neyyoor Post 629 803,
Kanyakumari District. ... Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Mandamus, to direct the respondents 3 and 7 to
accept the nomination of the petitioner filed on 31.03.2018 before the 7th
respondent Election Officer and to permit the petitioner to contest in the
ensuing election for the post of Board of Directors in the 8th respondent
Society scheduled on 07.04.2018.
!For Petitioner : Mr.Isaac Mohanlal
Senior Counsel
for M/s.Isaac Chambers
For Respondents 1&2 : Mr.K.Chellapandian, AAG
assisted by Mrs.J.Padmavathidevi,
Special Government Pleader.
For 3rd Respondent : Mr.S.Muthalraj
For 5th Respondent : Mr.N.Shanmugaselvam
For 8th Respondent : Mr.D.Sadiq Raja
:ORDER
The election notification for the eighth respondent society was published on 19.03.2018. As per the election schedule, the date for releasing the members list in the notice board of the society was fixed on 22.03.2018 and on the same day, the list was required to be sent to the Electoral Officer. The Electoral Officer was required to display the list of voters in the eight respondent notice board. The objections of the members was to be received on or before 26.03.2018 and after consideration of the objections, the decision of the Electoral Officer was required to be displayed in the notice board on 27.03.2018 and the final list of the voters list would be released on 28.03.2018. While the date for filing nomination for the election was scheduled on 31.03.2018, the scrutiny of the nominations was fixed on 02.04.2018 and the list of eligible contestants was scheduled to be published by 05.00 p.m on 02.04.2018. The returning of the nomination was on 03.04.2018 and the final list of contestants was required to be published by 05.00 p.m of 03.04.2018. The election for the Board of Directors is scheduled on 07.04.2018.
2.The petitioner's name was found in Sl.80 among the total 93 members in the list of eligible voters as published by the Electoral Officer on 24.03.2018 and accordingly, he had filed his nomination before the seventh respondent Electoral Officer proposing to contest in the election for the post of Board of Directors. Subsequently, a second list came to be released on 28.03.2018 whereby the petitioner's name was removed and the total number of members was found reduced from 93 to 92. It is, in this background that the present writ petition has been filed by the petitioner on the ground that the removal of his name from the second list was illegal and made with an ulterior motive.
3.The learned Senior Counsel appearing for the petitioner submitted that the petitioner herein is a prospective candidate and that his name has been removed at the instance of the fifth respondent herein who belongs to the ruling party. Hence, he sought for a direction to the respondents 3 and 7 to accept his nomination filed before the seventh respondent Election Officer for the purpose of enabling him to contest in the ensuing election. The learned Senior Counsel further submitted that the second list wherein his name was removed is prima facie illegal since the said list which was allegedly countersigned by the Secretary has been forged and the concerned Secretary has also given a criminal complaint in this regard. Furthermore, he had submitted that the District Electoral Officer, who had released the first list had not signed the subsequent list. Even otherwise, the objections raised by the petitioner has not been considered since no reasoning has been given for the removal of his name in the second list.
4.Learned counsel appearing for the third respondent vehemently opposed the submissions of the learned Senior Counsel for the petitioner and by referring to Rule 52 of the Tamil Nadu Co-operative Societies Rules, 1988 (for brevity, 'the Rules') submitted that the entire schedule and procedure followed for scrutinizing the nominations was in conformity with the Rules. He would further submit that the election process has already commenced and therefore, this Court should not entertain the present writ petition in view of the alternate remedy available under the Act for filing an election petition. It is his further submission that even assuming that the signature of the Secretary has been forged, it is a bundle of facts which needs to be agitated only in an election petition and that it would not be proper to stall the election proceedings, at this stage. In support of his contentions, learned counsel appearing for third respondent relied upon the following judgments of the Supreme Court:-
?(i)Manda Jaganath Vs.K.S.Rathnam and others (2004) 7 SCC 492
(ii)City and Industrial Development Corporation Vs.Dosu Aardeshir Bhiwandiwala and others (2009) 1 SCC 168 and
(iii)Kanaiyalal Lalchand Sachdev and others Vs.State of Maharashtra and others (2011) 2 SCC 782?
5.Learned counsel appearing for the eighth respondent submitted that she had not countersigned the second list and that her signature has been forged. In this regard, she had also given a police complaint before the Colachel Police Station for initiating action against the respondents 5 and 6 on 31.03.2018. She had also given another complaint to the third respondent on 28.03.2018. According to the learned counsel, the second list is illegally prepared and hence, no credibility can be assigned to it.
6.I have given careful consideration to the submissions made by the respective learned counsels.
7.What is not in dispute is that the petitioner's name was found among the list of voters on 24.03.2018 and in the subsequent list, his name has been removed. The first list dated 24.03.2018 was prepared by one S.Jacob Gerald Jeyahar. The second list has been countersigned by one Lenin who is now claimed to be the Electoral Officer. Apparently, the earlier Electoral Officer who had included the petitioner's name in the voters list has been replaced by the subsequent Electoral Officer. There is a rubber stamp affixed with the eighth respondent society's name and the same has been allegedly signed by the Secretary.
8.The main objection of the learned counsel for the third respondent is that since the election process has commenced, the High Court should not interfere with the election process and the remedy available to the petitioner would only by way of challenging the election through an election petition in accordance with the procedure contemplated under the Rules.
9.There is no quarrel about this legal proposition. No doubt, law has been well settled that whenever, an election process has commenced, it would be inappropriate for the High Court to stall process by entertaining a writ petition challenging the election procedure adopted. In the instant case, the petitioner has sought for a limited relief of a direction to the respondents 3 and 7 to accept his nomination by considering petitioner's request and while considering the scope of the relief, it cannot be said that the election process would be stalled or disturbed in any manner. Hence, the judgments relied upon by the learned counsel for the eight respondent may not be relevant, vis-a-vis, the relief claimed for. Since the relief sought for in the present writ petition, will not stall or otherwise disturb the election process, the judgments relied upon by the learned counsel for the third respondent need not be discussed.
10.As such, the question before this Court is as to whether there are sufficient materials to accept the case of the petitioner and permit him to file his nomination for the election. One glaring infirmity in the election process is that of the removal of the petitioner's name from the second voters list wherein the counter signature of the Secretary is allegedly forged. The first Electoral Officer who had included the name of the petitioner has also been replaced by the sixth respondent herein who has countersigned the second list. When the eighth respondent herself submitted to this Court that her signature has been forged in the second list and that she had given a criminal complaint before the concerned jurisdictional police station, there arises a serious doubt as to the genuinenity of the preparation of the second list and the possibility of a mala fide intention to have the petitioner's name removed from the second list. This Court cannot turn a blind eye when such a glaring irregularity brought to its notice and brush aside the petitioner's apprehension by directing him to challenge the same by way of an election petition. The change of Electoral Officer and the preparation of the second list also adds further doubt as to whether there could be a mala fide intention.
11.It is a cardinal principle that elections should be conducted in a fair and democratic manner. Such a process should not only be fairly and properly held but should also seem to be so conducted so as to inspire confidence in the minds of the electors. Free and fair elections are the very foundation of the institutions. I am unable to apprehend as to how any prejudice would be caused to the third respondent, if he is directed to accept the nomination of the petitioner in order to ensure that the election process is conducted in a democratic manner. Furthermore, in view of the glaring infirmity in the election process, if the election is permitted to be held, there is an imminent possibility that the entire election could be set aside through an election petition, which may cause serious prejudice to the elected members and also loss to the exchequer.
12.With regard to the objections of the third respondent that the High Court exercising its power under Article 226 of the Constitution should not interfere with the election process, reliance can be placed on a judgment of this Court reported in (2007) 2 MLJ 129 (AIADMK Vs.State Election Commissioner) wherein the view expressed was that the High Court can by-pass alternative remedies in a writ petition in exceptional and extraordinary circumstances. The relevant portion of the judgment reads as follows:-
?156.To sum up the legal position, it can be stated as under:
(i)Democracy contemplates that Elections should be free and fair, so that voters may be in a position to vote for the candidate of their choice.
Free and fair Elections are the very foundation of democratic institutions. The Elections should not only be fairly and properly held, but should also seem to be so held to inspire confidence in the minds of the Electors that everything was above board. To ensure free and fair Elections, the Constitution vests comprehensive responsibility in the Election Commission. The Election Commission, as part of fairness in Elections, has an obligation to see that no wrong doer candidate benefits by his own wrong.
(ii)The Election Commission as a creature of the Constitution, has been invested with residuary power to be exercised in the infinite variety of situations that may emerge from time to time in the large Democracy of ours, as every contingency cannot be foreseen or anticipated with precision.
(iii)To meet such contingencies, the Election Commission has been invested with plenary powers. During the process of Elections, in order to maintain purity in the process, the Election Commission should ensure and see that the Returned Candidate is deprived of the success secured by him, which success he secured by resorting to means and methods falling foul of the law of Elections. Each case has to be considered on its own facts, depending upon the authority that exercises the power and the indelible effects which generate in the operation of law or affects the individual or society. An administrative action can be struck down, if the Court is satisfied that there is abuse or misuse of power or that such action of the authority was so absurd that no reasonable person could have arrived at on the given material.
(iv) In a Public Interest Litigation, whenever injustice is meted out to a large number of people, the Court should not hesitate to step in.
(v) In a Writ Petition under Article 226 of the Constitution, even questions of fact of complex nature can be determined.
(vi) Merely because one of the parties to the litigation raised a dispute in regard to the facts of the case, the Court dealing with the petition under Article 226 of the Constitution is not always bound to relegate the parties to a different forum.
(vii) If exceptional and extraordinary circumstances exist, the Court can by-pass alternative remedies in a Writ Petition under Article 226 of the Constitution.
(viii) If the monstrosity of the situation or other exceptional circumstances cry for timely jurisdictional interdict or mandate, the Court should not hesitate to exercise its extraordinary power under Article 226 of the Constitution.
(ix) The mentor of law is justice and a potent drug should be judicially administered.
(x) Judicial daring is not daunted where glaring injustice demands even affirmative action.
(xi) The trite saying that, "Democracy is for the people, of the people and by the people" has to be remembered for ever.
(xii) The right to vote if not a fundamental right, is certainly a constitutional right.
(xiii) Casting of vote in favour of one or the other candidate tantamounts to expression of voter's opinion and the exercise of the said voting right marks the accomplishment of 'freedom of expression' of the voter, attracting Article 19(1)(a) of the Constitution.
(xiv) Democracy can indeed function only upon the faith that Elections are free and fair and not rigged and manipulated.
(xv) If the facts can be found to be not a controverted one and if the denial would have created graver injustice, according to the Supreme Court, the "Doctrine of Extrapolation" would come into play. (i.e. to arrive at conclusions or results by hypothesising from known facts or observations or to speculate as to consequences on the basis of known facts or observations).
13.The present case in hand is a classic example of an exceptional case where interference under Article 226 of the Constitution of India is warranted. In view of the law laid down in the aforesaid judgment, I have no hesitation to hold that the petitioner should be given an opportunity to file his nomination and the third respondent cannot be prejudiced, if such a direction is given.
14.At this juncture, learned counsel appearing for the third respondent submitted that the prayer in the writ petition has almost become infructuous since the final list of candidates have already been released and he further submitted that since there was no interim order of stay granted in the writ petition, the respondents had rightly proceeded in finalising the voters list.
15.With a bit of dismay, I am constrained to observe that the submission of the learned counsel for the third respondent is disappointing for the reason that when the writ petition came up for hearing on 03.04.2018, the learned Additional Advocate General had appeared before this Court and sought for time to verify the circumstances under which the second list came to be released and in view of the said submission of the learned Additional Advocate General, this Court had consciously refrained from granting any interim orders and posted the matter today. In this background, the submission of the learned counsel for the third respondent that in the absence of an interim order of stay, the respondents had rightly proceeded with the election process cannot be countenanced. As such, the release of the final list may not disentitle or deprive the petitioner from filing his nomination and as such, it cannot be deemed that the prayer has become infructuous.
16.Though the learned counsel appearing for the third respondent has sought for sufficient time for filing counter affidavit, I am of the view that the election is scheduled to be held on 07.04.2018 and by granting time for filing counter at the eve of the election date would only worsen the situation and cause serious prejudice to the petitioner.
17.In the result, the writ petition is allowed with a direction to the respondents 3 and 7 to accept the petitioner's nomination filed on 31.03.2018 before the seventh respondent Electoral Officer and permit him to contest in the ensuing election for the post of Board of Directors in the eighth respondent society scheduled to be held on 07.04.2018. No costs. Consequently, W.M.P(MD)No.6910 of 2018 is closed.
To
1.The Commissioner, Dairy Co-operative Societies Ltd., Madhavaram Milk Colony, Chennai 600 051.
2.The Chief Election Commissioner, Co-operative Societies, Teynamepet, Chennai.
.