Kerala High Court
Omana vs The Returning Officer To Wayanad ... on 4 June, 2019
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 04TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941
WP(C).No. 15221 of 2019
PETITIONERS:
1 OMANA,
MEMBER NO.683,
VADOTH HOUSE,
PULIYARMALA,
MANIYANKODE,KALPATTA,
WAYANAD DISTRICT.
2 NAJUMUNNISA.N,
MEMBER NO.1193,
MANIMA HOUSE,
VELLIMUNDA,PULINJAL,
WAYANAD.
3 RAMACHANDRAN,
CHALAMPATTIL HOUSE,
CHUNDEL.P.O,
WAYANAD.
BY ADV. SRI.P.N.MOHANAN
RESPONDENTS:
1 THE RETURNING OFFICER TO WAYANAD DISTRICT
WHOLESALE CO-OPERATIVE CONSUMERS STORES LTD NO.
W-36,
KALPATTA,
WAYANAD-673521,
UNIT INSPECTOR,
OFFICE OF THE ASSISTANT REGISTRAR,
KALPATTA,
WAYANAD.
W.P.(C) 15221/2019
-:2:-
2 THE STATE CO-OPERATIVE ELECTION COMMISSION,
REPRESENTED BY ELECTION COMMISSIONER,
3RD FLOOR,CO-BANK TOWERS,
PALAYAM,VIKAS BHAVAN.P.O,
THIRUVANANTHAPURAM-695033.
3 THE WAYANAD DISTRICT WHOLESALE CO-OPERATIVE
CONSUMERS' STORES LTD.NO.W-36,
REPRESENTED BY MANAGING DIRECTOR,
KALPATTA,
WAYANAD-673521.
SRI.R.LAKSHMI NARAYAN-SC,
SRI. MUHAMMAD HASHIM -SPL.GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.06.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) 15221/2019
-:3:-
JUDGMENT
The petitioners say that they are the members of the Wayand District Wholesale Co-operative Consumers Store, a Society registered under the provisions of the Kerala Co- operative Societies Act (hereinafter referred to as 'the Society' for short); and that they had preferred their nominations as candidates to the elections notified to its Managing Committee, a copy of which notification is on record as Ext.P1.
2. The specific allegation of the petitioners is that their nominations have been rejected by the Returning Officer, the first respondent herein, through Exts.P4 and P5 orders as regards petitioners 1 and 2, merely saying that they have not shown the 'മണല ' to which they are seeking election; and through Ext.P7 relating to the third petitioner wherein it is stated that he has not produced the necessary community certificate within the time granted under the notification.
3. The petitioners contend that these orders are per se illegal and unlawful and, therefore, that they may not be W.P.(C) 15221/2019 -:4:- relegated to the alternate remedy of filing an election petition and that this Court may consider their contentions on its merits.
4. The learned Special Government Pleader, Sri.Mohammed Hashim, concedes that in Exts.P4 and P5 the word used is 'മണല ' and that this word has not been specifically defined or mentioned in any of the applicable statutes. He says that 'മണല ' means constituency and thus supports Exts.P4 and P5 orders, asserting that they are without fault. As regards Ext.P7 is concerned, the learned Special Government Pleader submits that since the third petitioner did not produce the relevant community certificate, namely Ext.P6, within the time granted, the said order is also without error.
5. In answer to the afore submissions of the learned Special Government Pleader, Sri.P.N.Mohanan, the learned counsel for the petitioners submitted that Exts.P4 and P5 are per se incompetent in law and since the word 'മണല ' used therein has not been defined by any Statute or Regulation. He says that it is not sufficient for the learned Special Government Pleader to W.P.(C) 15221/2019 -:5:- on his own define the word 'മണല ' as "constituency" and that what is relevant is how the law deals with these issues. He also refers to the amendments to Section 28 of the Kerala Co- operative Societies Act, brought in through the Kerala Co- operative Societies (Amendment) Act, 2017, which mandates "that the elections to the committees of the Societies shall not be conducted on ward basis irrespective of the provisions to the contrary contained in the bye-laws of any society". He asserts that the word 'മണല ' used in Exts.P4 and P5 clearly denotes Wards and, therefore, that the rejection of the nominations of petitioners 1 and 2 are consequently, unlawful and unconstitutional.
6. Turning to Ext.P7, Sri.P.N.Mohannan, submits that the notification does not fix the time frames within which the up-to- date community certificate has to be produced and, therefore, that merely because the petitioner had produced Ext.P6, which relates to a slightly early date, his nomination could not have been rejected for this reason at all and that he is entitled to W.P.(C) 15221/2019 -:6:- produce the requisite certificate even thereafter. He prays that Ext.P7 also, therefore, be set aside.
7. Even when I consider the afore submissions made by the learned counsel for the parties as afore, the fact remains that the orders have been impugned by the petitioners on certain very specific contentions, particularly with respect to the interpretation of the relevant Statutes and Regulations. I am certain that it would not be up to this Court to enter into this controversy at this time since the election process is under way and any decision to be taken or any view to be expressed by me at this stage may cause interdiction in such processes.
8. I, therefore, asked the learned Special Government Pleader as to whether the competent Authority will be willing to reconsider these issues in terms of law, so that the decisions taken, particularly in Ext.P4 and P5, can be reconciled with the applicable Statues and Regulations and the contention regarding Ext.P6, that there is no time frame for production of an up-to-date certificate, can also be adverted to. W.P.(C) 15221/2019 -:7:-
9. Sri.Mohammed Hashim, the learned Special Government Pleader, very fairly submitted that since the elections are scheduled to be held only on 16.6.2019, reconsideration of these aspects can be made by the Returning Officer within a period of one or two days from now. He prays that the petitioners, therefore, be directed to present themselves before the Returning Officer on 7.6.2019 at 11 a.m., so that the said Authority can hear them, based on the materials available but without giving opportunity to the petitioners to produce any further evidence or documents, on that day and thereafter take a suitable decision regarding their candidature.
10. On hearing the learned Special Government Pleader as afore, Sri.P.N.Mohannan, the learned counsel for the petitioners, also submits that his clients will accept this course and that they will present themselves before the said Authority at 11 a.m. on 7.6.2019.
In the afore circumstances, I order this writ petition and direct the Returning Officer to reconsider the rejection of the W.P.(C) 15221/2019 -:8:- petitioners' nomination papers in terms of law and in the manner as afore, after hearing them on 7.6.2019 at 11 a.m. and communicate to them the resultant order on the same day, if it is possible, but not later than 10.6.2019.
SD/-
DEVAN RAMACHANDRAN, JUDGE vps W.P.(C) 15221/2019 -:9:- APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE C0PY OF THE ELECTION
NOTIFICATION DATED 08.05.2018 OF THE
SECOND RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE ACT NO.14/2017
PUBLISHED IN KERALA GAZETTE VOLUME
6.1940 DATED 13.09.2017
w.e.f.10.04.2017.
EXHIBIT P3 A TRUE COPY OF THE NOMINATION SUPPLIED
BY THE RETURNING OFFICER.
EXHIBIT P4 A TRUE COPY OF THE ORDER DATED
31.05.2019 ISSUED BY THE RETURNING
OFFICER TO THE 1ST PETITIONER.
EXHIBIT P5 A TRUE COPY OF THE ORDER DATED
31.05.2019 ISSUED BY THE RETURNING
OFFICER TO THE SECOND PETITIONER.
EXHIBIT P6 A TRUE COPY OF THE COMMUNITY
CERTIFICATE DATED 31.05.2019 ISSUED BY THASILDAR,VYTHIRI.
EXHIBIT P7 A TRUE COPY OF THE ORDER DATED
31.05.2019 OF THE RETURNING OFFICER.
RESPONDENT'S EXHIBITS
NIL