Kerala High Court
O.A. Abdul Salam vs Kerala State Co-Operative Election ... on 21 October, 2017
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 31ST DAY OF OCTOBER 2017/9TH KARTHIKA, 1939
WP(C).No. 33904 of 2017 (K)
----------------------------
PETITIONER :
----------------------
O.A. ABDUL SALAM,
AGED 50 YEARS, S/O.O.M.ABDUL KHADER,
ODAPLACKAL, MUNAYAMKUNNU, KANNIVAYAL.P.O.,
PALAVAYAL VILLAGE, VELLARIKUNDU TALUK,
KASARAGOD DISTRICT.
BY ADV. SRI.K.T.SHYAMKUMAR
RESPONDENT(S):
---------------------------
1. KERALA STATE CO-OPERATIVE ELECTION COMMISSION,
THIRUVANANTHAPURAM, PIN-695 033,
REPRESENTED BY SECRETARY.
2. THE RETURNING OFFICER/OFFICE INSPECTOR,
OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,
HOSDURG.P.O., KANHANGAD, PIN-671 315.
3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES,
KASARAGOD, PIN-671 121
4. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES,
HOSDURG, KANHANGAD, PIN-671 315.
5. THE SECRETARY,
EAST ELERI SERVICE CO-OPERATIVE BANK LTD NO.8832,
CHITTARIKKAL.P.O., PIN-670 511.
R1 TO R4 BY SR GOVERNMENT PLEADER SMT. C.S.SHEEJA
R5 BY SRI.T.K.VIPINDAS, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 31-10-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
sts
WP(C).No. 33904 of 2017 (K)
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE ELECTION NOTIFICATION DATED 21/10/2017 ISSUED BY THE
1ST RESPONDENT.
RESPONDENT'S EXHIBITS:
R5(A) COPY OF THE PROFORMA WITH RESOLUTIONS DATED 13/9/2017
R5(B) COPY OF THE PROFORMA WITH RESOLUTIONS OF BOARD OF DIRECTORS
DATED 9/12/2017
R5(C) COPY OF THE INBOX PAGE OF EMAIL ID OF THIS RESPONDENT
R5(D) COPY OF THE E-MAIL DATED 21/10/2017 RECEIVED FROM 4TH RESPONDENT
R5(E) COPY OF THE PROCEEDINGS OF 1ST RESPONDENT DATED 12/10/2017
/TRUE COPY/
P.A.TO JUDGE
sts
CR
SHAJI P. CHALY, J.
-----------------------------------------------
W.P.(C) No.33904 of 2017
-----------------------------------------------
Dated this the 31st day of October, 2017
J U D G M E N T
Petitioner is a member of East Eleri Service Co- operative Bank Limited No.8832. The tenure of the present Managing Committee of the said bank expires on 18.12.2017. Therefore, the Board of Directors decided to conduct an election on 18.11.2017 and accordingly passed a resolution to that effect on 30.9.2017. However, it is later informed that, 1st respondent has taken some objections regarding conduct of election much earlier to the expiry of the term of the present board as it would deny voting rights to newly inducted members. Therefore, according to the petitioner, the Managing Committee of the bank subsequently passed a resolution on 7.10.2017 resolving to conduct election on 9.12.2017. It is also submitted that, the said resolution was forwarded to the 1st respondent for further action. Accordingly Ext.P1 election notification is W.P.(C) No.33904 of 2017 2 issued with the statutory stipulations as contained in rule 35A of the Kerala Co-operative Societies Rules, according to which, a draft voters list is to be published on 20.10.2017 at 11.00 a.m., submission of objections to the draft voters list, a period of 7 days is granted from 20.10.2017 to 27.10.2017, 28.10.2017 is fixed as to consider the objections raised to the draft voters list, 28.10.2017 is also fixed as for publication of the final voters list, 2.11.2017 is fixed as submission of the nominations, 3.11.2017 is fixed as the date for scrutiny of the nominations and 4.11.2017 is fixed as the date for withdrawing the nominations. Finally election is notified to be conducted on 18.11.2017. According to the petitioner, Ext.P1 notification is published in the vernacular dailies as is contemplated under sub- rule 3 of rule 35A only on 22.10.2017 and therefore, the same is not a valid notification in order to carry on with the election. In this context, the pleadings made by the petitioner at paragraph 3 of the writ petition is relevant, which is as follows:
"It is submitted that out of the blue, an notification was seen published in Malayala Manorama Daily on 22.10.2017carrying a notification issued by the 4th respondent as W.P.(C) No.33904 of 2017 3 directed by the 1st respondent notifying the Election. The true copy of the Election Notification dated 21.10.2017 issued by the 1st respondent is produced herewith and marked a Exhibit P1. It is submitted that Exhibit P1 is highly belated. Though the order of the 1st respondent dated 12.10.2017 and the preliminary voters list was published on 20.10.2017 and so also the date submission of objections to the preliminary voters list was commenced from 28.10.2017, the notification was published only on 20.10.2017 and it was published in the newspaper only on 22.10.2017 as seen from Exhibit P1. Therefore, this is a irregularity committed by the respondents in conducting the election. The petitioner intends to contest the election and therefore, he is directly interested in the outcome of the elections. Therefore, the petitioner has locus standi to challenge Exhibit P1 election notification."
2. Therefore, according to the petitioner, even though the publication was carried out in the vernacular dailies only on 22.10.2017, the draft voters list was published on 20.10.2017 in the notice board of the society.
3. Heard learned counsel for petitioner, learned Senior Government Pleader and perused the pleadings and documents W.P.(C) No.33904 of 2017 4 on record. I have perused the counter affidavit filed by the 5th respondent refuting the claims and demands raised by the petitioner, also.
4. On an wholesome appreciation of the arguments advanced at the Bar, in my view the issues raised in this writ petition can be settled by appreciating sub-rules 3 and 4 of rule 35A of Rules, 1969 which read thus:
"(3) The State Election Commission shall notify the details of election to the committee of the society, in two vernacular dailies having wide circulation in the area. A copy of the information shall also be affixed on the Notice Board of the head office and the branches, if any, of the Society. The notification shall contain the following particulars:
(i) The number of vacancies to be filled up by election.
(ii) Any area or constituency that is specified in the bye-laws from which members are to be elected.
(iii) The date on which and the place at which the preliminary notification of the list of members qualified to vote as the voter shall be published.
(iv) The dates between which objections shall be filed and the date on which, the hours W.P.(C) No.33904 of 2017 5 between which, and the place at which, the objections, if any, shall be scrutinized.
(v) The date on which, and the place at which, the final voters list shall be published.
(vi) The date on which, the place at which, and hours between which nomination paper shall be filed by the contesting candidate or by his proposer or seconder.
(vii) The date and hour when the nomination paper will be scrutinized.
(viii) The date on which, the place at which and hours between which, polling if necessary will take place.
4. The State Co-operative Election Commission shall appoint an Electoral Officer from among the officers of the concerned.
Administrative Department who shall be responsible for the publication of the list of members qualified to vote at the election in accordance with the provisions of the Act, rules and bye-laws as stood on a date 60 days prior to the date fixed for the poll. The list shall contain the admission number, name of the member, name of father or husband and the address of such member. Such list shall also contain the name and other particulars of the delegate in cases where the member is a society or corporation or a statutory or non-statutory Board, Committee or other body of persons W.P.(C) No.33904 of 2017 6 which is a member of another society or Government. It shall be the duty of the Chief Executive of the concerned society to prepare, up date the list as per the Rules and submit voters list duly approved by the Committee, to the Electoral Officer within thirty five days prior to the date fixed for election and render all assistance required by the Electoral Officer. It is the duty of the Electoral Officer to publish the preliminary voters list in Form No.34 in the Notice Board of the Head Office and branches if any, of the society and call for objections, if any, on the voters list within seven days of publication and publish final voters list in FormNo.35 within twenty days prior to the date fixed for the poll. The final voters list so prepared should be published in the Head Office and branches of the concerned society. A copy of such list shall be supplied by the society to any member on payment of such fees as may be prescribed by the committee of the Society."
5. On a reading of the aforequoted sub-rules, it is evident that, both operate on different fields. So far as sub-rule 3 is concerned, the State Election Commission is to notify the details of election "to the committee of the society in two vernacular dailies". However, as per sub-rule 4, it is the duty of the W.P.(C) No.33904 of 2017 7 Electoral Officer to publish the preliminary voters list in Form No.34 in the notice board of the head office and branches if any. On an appreciation of the provisions, it is categoric and clear that, so far as the paper publication carried out in vernacular dailies are concerned, there is no time stipulated and the same is with the intention of notifying the "committee" with respect to the details of election. However, in sub-rule (4) in order to object to the draft voters list, 7 days time period is to be prescribed, which is a mandatory requirement. Which thus means, sub-rule (4) carries a statutory requirement with respect to submission of objection within a period of 7 days from the date of publication of the draft voters list in the notice board of the society but sub-rule (3) does not insist for publication within any specified period. Therefore, the apprehension voiced by the petitioner in the writ petition that, if the paper publication is carried out on 22.10.2017, then statutory period of 7 days will not be secured, has no statutory foundation, and so also no manner of prejudice is caused to the petitioner on that account.
6. As discussed above, the paper publication carried out on 22.10.2017 is not at all a fetter to carry on with the election if W.P.(C) No.33904 of 2017 8 the statutory requirements under sub-rule (4) of rule 35A of Rules, 1969 is complied with. That being the situation, I do not think petitioner has made out a valid case in order to interfere with the election already notified as per Ext.P1 invoking the discretionary jurisdiction conferred under Article 226 of the Constitution of India, there being no illegality, arbitrariness and other legal infirmities. I also bear in mind the settled legal position, not to interfere with election process under normal and ordinarily circumstances.
Resultantly, writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P. CHALY JUDGE smv 1.11.2017