IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20900 of 2009(F)
1. K.E.PAREEDKUNJU, MEMBER NO. 16431,
... Petitioner
Vs
1. THE ELECTORAL OFFICER/ASSISTANT
... Respondent
2. THE RETURNING OFFICER/INSPECTOR OF
3. CHERTHALA CO-OPERATIVE AGRICULTURAL
4. SMT.ANANDAVALLY AMMA,
5. SHRI.A.N.SUGUNAN,
6. SHRI.S.BAHULEYAN,
7. SHRI.P.S.GOPI, MEMBERSHIP NO. 10715,
8. SHRI.T.R.HARIDAS, MEMBERSHIP NO.11671,
For Petitioner :SRI.K.JAJU BABU
For Respondent :SRI.P.C.SASIDHARAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :06/08/2009
O R D E R
ANTONY DOMINIC, J.
-------------------------
W.P.(C.) Nos.20900, 21577, 21605 & 22122 of 2009
------------------------------------------------
Dated, this the 6th day of August, 2009
J U D G M E N T
The legality of the final voters list of the members of the
Cherthala Co-operative Agricultural and Rural Development Bank
(hereinafter referred to as the Bank for short) is the issue that is
raised in WP(C) Nos.20900, 21577 & 21605 of 2009.
2. The issue being common, these three writ petitions are
heard together, and are disposed of by this common judgment. For
convenience, I shall be referring to the facts and documents as are
available in WP(C) No.20900/2009.
3. The petitioner in this writ petition is presently a member
of the Board of Directors of the Bank. By Ext.P4, election to the
Board of Directors of the Bank has been notified and is scheduled to
be held on 09/08/2009. In compliance with the schedule
prescribed in Ext.P4, along with Ext.P5 notice, preliminary voters list
was published by the Electoral Officer on 15/07/2009. It is stated
that thereupon respondents 4 to 8 raised objections and the
WP(C) Nos.20900, 21577, 21605, 22122/2009
-2-
Electoral Officer verified the records of the Bank. It is the case of
the Bank, which is also a petitioner in WP(C) No.21605/2009, that
such verification was behind their back and was without notice to
them. Be that as it may, by Ext.P7 order dated 22/07/2009, the
Electoral Officer held that several members included in the list are
expired and that their inclusion in the list is irregular and that their
names should be removed. It is also held that membership granted
to members at serial Nos.9365 to 12725 and 12753 to 14306 were
not incompliance with the provisions of the Kerala Co-operative
Societies Act and the Rules framed thereunder and also against the
bye-laws of the Society, and therefore, removing those members
also, a final voters list should be prepared and made available to the
Electoral Officer before 11 am on 23/07/2009.
4. The Bank submits that they received Ext.P7 at 4 p.m. on
22/07/2009, and despite the paucity of time, they submitted a list
as desired by the Electoral Officer. They also submitted a list
excluding those members, who were indicated in the preliminary
voters list as expired. On 23/07/2009 itself, the Bank submitted
Ext.P8 to the Electoral Officer reiterating the eligibility of the
WP(C) Nos.20900, 21577, 21605, 22122/2009
-3-
aforesaid 4915 persons to be retained in the voters list. Irrespective
of the objections filed, Ext.P6 final voters list was published by the
Electoral Officer on 23/07/2009. In the list, the names of the
expired 145 persons and also names of the allegedly ineligible 4915
persons were excluded. It is thereupon that these writ petitions
were filed, praying that the removal of 4915 members in the final
voters list of the Bank is illegal and to quash the said action of the
Electoral Officer. Further prayer is to direct that the aforesaid
members should be permitted to cast their votes, and that the
petitioner in WP(C) No.20900/2009 should be permitted to contest
in the election. In this context, it is also to be mentioned that
pursuant to the interim order passed by this Court on 27/07/2009,
the petitioner in WP(C) No.20900/2009 has already submitted his
nomination and the same has been scrutinised and accepted
provisionally.
5. The learned Government Pleader argued the case with
reference to the documents that he obtained from the Electoral
Officer, and was duly supported by the counsel appearing for the
party respondents at whose instance, the elimination process was
WP(C) Nos.20900, 21577, 21605, 22122/2009
-4-
initiated. According to the learned Government Pleader, on the
publication of Ext.P5 preliminary voters list, complaints were
received from respondents 4 to 8 mentioned above, and the
Secretary was called upon to produce the minutes of the Bank
admitting members to the Society with effect from 2000. It is stated
that accordingly the copies of the minutes were received and on
verification, it was found that for various reasons the admission of
4915 persons was irregular. It is also submitted that the
preliminary voters list contained a list of 145 persons, who
admittedly had expired. It is stated that thereupon, Ext.P7 was
issued, and accordingly, the final voters list excluding ineligible
persons were published. It is contended that the aforesaid actions
of the Electoral Officer are perfectly in compliance with the
provisions contained in Rule 35A of the Kerala Co-operative
Societies Rules.
6. Conduct of the election to the Bank is regulated by the
provisions contained in Rule 35A of the KCS Rules and it is the
responsibility of the Electoral Officer to publish final voters list after
considering the objections filed against the preliminary voters list.
WP(C) Nos.20900, 21577, 21605, 22122/2009
-5-
Power of the Electoral Officer to remove the ineligible persons from
the preliminary voters list, has been recognized by this Court in the
judgment in Vijayakumar v. Joint Registrar (1996(1) KLT 285). In
the aforesaid judgment, paragraphs 16 to 19, to the extent it is
relevant, reads as under:-
“16. ——— . It has therefore, to be taken that the
Returning Officer has the power to conduct a summary enquiry
when objection is raised regarding the inclusion of a member in
the voters list. The powers to consider the objections has been
conferred on the Returning Officer alone. There is nothing in
the Act or Rules to show that he can delegate or abdicate his
functions in favour of any authority of the Society. The
returning officer is required to give his own ruling on the
objection. He cannot rule out any objection or sustain it
arbitrarily. In order to arrive at a proper decision it is open to
him to conduct a summary enquiry to be satisfied about the
sustainability or otherwise of the objections. But, he can do so
only if the objections are specific and definite against each
individual member which can be subjected to verification with
reliable materials that may be made available to him by the
objections and the authorities of the Society. He is not
expected to make a roving enquiry.
17. It is he who is to be satisfied about the correctness
or otherwise of the objections. He cannot simply forward the
objections to the authorities of the society for their verification.
If, however, the objections are general or vague in nature or
appear to be prima facie baseless, the Returning Officer is not
WP(C) Nos.20900, 21577, 21605, 22122/2009
-6-
bound to make any enquiry. We are therefore, unable to agree
wholly with the proposition laid down in Mathew’s case and
Kottappady Service Co-op. Bank’s case on this aspect. We
approve the observation made by the learned single Judge in
Alleppey Dist. Co-op. D.S.Co-op. Society Ltd.’s Case to the
extent that the Returning Officer has a duty to make an enquiry
into the objections to ascertain the eligibility of a member to
vote in an election who is listed in the draft voters list furnished
by the Society. But, we do not agree with his observations that
the Returning Officer should sent the objections along with the
draft voters list to the committee of the Society to prepare the
final list. That would amount to surrender of his functions in
favour of the Society, which is not contemplated in R.35 of the
Rules.
18. In the case at hand, it appears that the objections
in Ext.P3 are very general in nature. No specific and definite
allegations have been made against individual members listed
in the voters list. The Returning Officer is therefore not bound
to make an enquiry into such vague objections.
19. For the reasons stated above, we hold that the
Returning Officer has the power to make an enquiry into the
objections if the same are definite and specific and he should
verify them with the materials placed before him by the
objectors and the authorities of the Society. In these cases, the
objections being vague in nature, there is no scope to hold an
enquiry.”
7. A reading of the above judgment shows that though the
Electoral Officer has power to exclude from the voters list persons
WP(C) Nos.20900, 21577, 21605, 22122/2009
-7-
who are ineligible to cast their votes in the election, such exclusion
can be ordered only if objections have been received challenging the
eligibility of the persons, and that those complaints are specific,
definite and against each individual member of the Society. It is
also held that in the process, the enquiry to be held is a summary
one, and that he is not expected to conduct a roving enquiry.
8. Viewed in the light of the law as laid down in the
aforesaid judgment, the question to be examined is whether the
complaints made by respondents 4 to 8 are specific and definite
against each of the allegedly ineligible individual members, who are
now removed by the Electoral Officer. The learned Government
Pleader has made available the originals of the complaints that were
received from respondents 4 to 8, and I have gone through each of
these complaints. A reading of these complaints show that the
allegations therein are in very general and vague terms and no
specific allegation is made with reference to any of the individual
members, whose eligibility is challenged. In fact, even in the
complaint made by the 7th respondent, all that he says is that
several members included in the list are ineligible and has stated
WP(C) Nos.20900, 21577, 21605, 22122/2009
-8-
that some of the ineligible are those at Sl.Nos.17789 to 17869,
14896 to 14954 and 18421 to 18447. Rest of the complaints are
more general and vague. Therefore, it is on the basis of the
aforesaid complaints that the process of elimination has been
initiated by the Electoral Officer.
9. What is primarily challenged is Ext.P7 of the Electoral
Officer and as held by the Apex Court in Mohinder Singh Gill and
another v. The Chief Election Commissioner, New Delhi and others
(AIR 1978 SC 851) when a statutory functionary makes an order
based on certain grounds, its validity must be judged by the reasons
mentioned therein and cannot be supplemented by fresh reasons in
the shape of affidavit or otherwise.
10. From Ext.P7 order passed by the Electoral Officer, it can
be seen that he has generally concluded that the admission of the
members who are ordered to be excluded, was contrary to the bye-
laws of the Society and the provisions of the Act and the Rules. The
findings in the order and the allegations in the complaints received
are too general and vague and not specific and definite, which are
the conditions necessary for the Electoral Officer to exercise his
WP(C) Nos.20900, 21577, 21605, 22122/2009
-9-
power as held by the Division Bench in the aforesaid judgment. If
that be so, the removal of 4915 members mentioned in Ext.P7 order
dated 22/07/2009 referred to above has to be held illegal and I do
so. Accordingly, I quash Ext.P7 order to the extent it orders
removal of 4915 members from the final voters list and direct that
those members also be permitted to cast their votes in the election
that is scheduled to be held on 09/08/2009.
11. However, having regard to the fact that the eligibility of
the aforesaid 4915 persons is disputed by respondents 4 to 8, and
as this judgment is rendered on the facts stated above, it is
always open to respondents 4 to 8 to pursue statutory remedies and
prove their case by adducing evidence. Therefore, it is directed that
votes of the aforesaid 4915 members be received in separate ballot
boxes and shall be counted separately. However, it is clarified that
these votes shall also be reckoned for declaring the results of the
poll.
12. In so far as WP(C) No.22122/2009 is concerned, the
prayer sought is to direct respondents 1 to 2 therein to permit the
petitioner therein to take videograph of the voting at the polling
WP(C) Nos.20900, 21577, 21605, 22122/2009
-10-
stations in the election to be held on 09/08/2009, and also to
ensure the identity of the voters, who come for voting at the polling
stations. This relief is sought on the basis that the petitioner
apprehends trouble at the polling stations and also bogus voting.
13. In several cases of this nature, considering identical
apprehensions, this Court has granted these reliefs. Therefore, in
this writ petition also, the Returning Officer is directed to allow
videography of the events at the polling stations, at the cost of the
petitioner, and retain the original video/CD with him, and to give a
copy thereof to the petitioner. This obviously shall be under the
directions of the Returning Officer.
14. It is also directed that if identity of any member is
disputed, the Returning Officer should verify the identity of the
person concerned with reference to the photograph in the ID and
the photograph in Form 6B Register.
These writ petitions are disposed of as above.
(ANTONY DOMINIC, JUDGE)
jg