IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30413 of 2008(U)
1. MADHAVA HERALA,KALERI HOUSE,
... Petitioner
Vs
1. THE JOINT REGISTRAR OF CO-OPERATIVE
... Respondent
2. THE JOINT REGISTRAR OF CO-OPERATIVE
3. THE STATE CO-OPERATIVE ELECTION
For Petitioner :SRI.P.RAMAKRISHNAN
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :27/01/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).Nos.30413, 31127 & 31774 OF 2008
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Dated this the 27th day of January, 2009
JUDGMENT
Read order dated 12.12.2008. As of now, election is over.
Let the results be declared and the votes collected separately
and be retained separately for a period of six months to enable
resolution of any dispute, if at all there is any election dispute.
Directing so, these writ petitions are disposed of without
prejudice to contentions of parties.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.
WPC.30413/08 & con. cases
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THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).Nos.30413, 31127 & 31774 OF 2008
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Dated this the 12th day of December, 2008
O R D E R
The judgment delivered on 29.10.2008 was issued without
taking note of the fact that the resolution dated 8.10.2008 was
drawn up by the committee then in office. Obviously, this has
resulted in considerable confusion since it is stated that the
election process had been carried on till the stage of
consideration of nominations. Hence, judgment dated
29.10.2008 in these matters is recalled.
2. These matters relate to the conduct of election to the
committee of the first respondent society. The petitioner in W.P
(C).30413/08 contends that the venue fixed for the polling
initially, viz., Cherkala, was an undesirable one and the State
Election Commission directed the society to re-fix the venue for
the convenience of the voters. The complaint is that the polling
WPC.30413/08 & con. cases
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is re-scheduled to be held in Thalangara and that the said venue
is a more sensitive area. Allegations are made to the effect that
the official respondents exercised their powers on holidays and it
is wholly improbable that the impugned action was taken in
accordance with law. Accordingly, the petitioner therein seeks
an order setting aside Ext.P4 election notification dated
9.10.2008, which has prescribed the venue for the polling as
Govt. Muslim Vocational Higher Secondary School, Thalangara;
the polling to be held on 31.10.2008.
3. W.P(C).31127/08 is filed by two persons whose nominations
were rejected. The plea raised by them is that the ground of
rejection is not stated and that their nomination papers are liable
to be accepted. They also contend that the notification has been
issued in haste without following the due procedure. In answer
to that, the stand of the Returning Officer appears to be that
there were dues payable by the petitioners to other co-operative
institutions. There is, however, no material on record to hold
that there was any demand made or notice issued intimating
them of any such arrear by the debtor societies.
WPC.30413/08 & con. cases
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4. W.P(C).31774/08 is filed by a candidate in the election,
seeking a declaration that the conduct of election by listing the
polling on 31.10.2008, a date after the day on which the term of
the committee in office would end, is contrary to Rule 39 of the
Kerala Co-operative Societies Rules, 1969 and is hence, liable to
be interfered with and an Administrator has to conduct the
election process. The facts of the case would show that the
committee in office drew up the proper resolution and sent it for
approval through the proper channel and the Election
Commission, which is on record with its counter affidavit, has
clearly stated that the Commission had instructed the bank to fix
another venue vide letter dated 3.10.2008. The committee thus
revised its decision regarding the venue and communicated the
decision dated 8.10.2008, changing the venue from Cherkala to
Thalangara. Obviously therefore, the Election Commission could
have proceeded to conduct the election in terms of the original
decision regarding the schedule of the election, however, with
modification of the venue of polling.
WPC.30413/08 & con. cases
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5. In the meanwhile, the resolution dated 30.8.2008 was
rescinded by the joint Registrar exercising authority under Rule
176 of the KCS Rules on 3.10.2008. According to the Election
Commission, this was not came to the knowledge of the
Commission. The resolution dated 30.8.2008, which was
rescinded, contains two different components; one related to
admission of members and the other related to election.
6. The controversies, now, would revolve essentially on the
question whether the order of the Joint Registrar issued under
Rule 176, rescinding the resolution dated 30.8.2008 would take
away the subtractum of the electoral process commenced by the
Election Commission or whether it could be trimmed down to
effect only any other decision touching the entitlement of any
newly admitted persons as members to vote. Now, the normal
approach in law relating to election, except in exceptionally
exceptional circumstances, is that once the electoral process is
commenced, the authorities including courts would keep their
hands off and permit the process of election to continue. In co-
operative sector, the process commences under Rule 35A by the
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statutory requirement of the committee to draw up a resolution
and to prepare the voters list for being used in connection with
the election. The electoral process having commenced by that,
the follow up action by the State Co-operative Election
Commission is, prima facie, only one which would result in a
statutory notification of the election, which is, under normal
circumstances, again, mandatory and inexcusable. Therefore,
the entire process commenced by the resolution dated
30.8.2008, followed by notifications of the Election Commission
dated 3.10.2008 and 9.10.2008 has to be carried on provisionally
and subject to further orders, without affecting the rights of the
parties. I also, prima facie, find no grounds to exclude the
petitioners in W.P(C).31227/08 from participation in the election.
In the light of what is stated above, the following orders are
provisionally issued as interlocutory, to govern the electoral
process, pending further consideration of these writ petitions:
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(i) The nomination papers of the petitioners in W.P(C).
31127/08 would be accepted and they will also be treated as
candidates in the election, subject to further orders.
(ii) The Administrator in office will promptly draw up a
resolution, fixing the date for polling and will intimate the same
to the Election Commission through proper channel, following
which, polling will be held on that date.
(iii) The votes of those persons admitted to membership
on the basis of the resolution dated 30.8.2008 will be collected in
a separate ballot box. The declaration of the result will be
withheld to obtain further orders from this Court.
(iv) The Electoral Officer and the Returning Officer will
ensure that the votes are counted and results maintained in a
sealed cover.
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.