The respective writ petitions have been filed to expedite the elections and to ensure that the same is conducted in a proper manner and in accordance with the Kerala Co-operative Societies Act, 1969 [for brevity “the Act”] and the Kerala Co-operative Societies Rules, 1969 [for brevity “the Rules”]. Underlying the said prayers is, the reluctance of one faction to let go the control, it had in the affairs of the Committee; and the anxiety of the other faction that it may not, in the present election also, come to power. The issues with regard to membership and the eligibility of the members included in the voters list to exercise franchise, as raised herein, eventually resulted in the interdiction of the elections already notified. The parties are referred to according to their status in W.P.(C). No.18573 of 2014, since the additional 5th respondent is the 1st petitioner in W.P.(C).No.17125 of 2014.
2. The writ petition was filed by the out-going Board of Directors of the Poovattoor East Service Co-operative Bank and its President against the Election Commission having adjourned the polling after all other formalities were completed. The additional respondents 6 and 7, who got themselves impleaded, support the conduct of the elections.
3. An election notification was issued as per Exhibit P1 scheduling elections on 27.07.2014 just prior to the date of expiry of the term of the out-going Managing Committee, which fell on 03.08.2014. The Election Commission had appointed an Electoral Officer and a Returning Officer, who had proceeded with the conduct of the elections. On the publication of the draft voters list, an objection was placed on record before the Electoral Officer by the additional 5th respondent, pursuant to which Exhibit P3 communication was issued to the Secretary of the Bank. Exhibit P3 enclosed a list of members, whose inclusion in the voters list was objected to. The Secretary was directed to verify the sustainability of the objections. The Secretary replied by Exhibit P4 that, there is no possibility of conducting such an enquiry. A final voters list was, hence, published by Exhibit P5. The nominations were filed and the procedure of acceptance of the same was also completed. The procedures were completed on 11.07.2014 as per Exhibit P1 notification, which was the last date for withdrawing the nominations. On 14.07.2014, the Election Commission adjourned the polling.
4. The learned counsel for the petitioner as also the additional respondents 6 and 7 would contend that, the Election Commission cannot usurp the powers of the Board of Directors, on whom is enjoined the duty of preparation of draft voters list. The role of the Electoral Officer in considering objections to the draft voters list is also fairly clear by virtue of the binding precedents and no roving enquiry could be made into the membership of any person included in the voters list. The learned counsel would place reliance on Vijayakumar v. Joint Registrar [1996 (1) KLT 285] to buttress the contention that no roving enquiry is permissible and the objection should be specific and definite. Kunhimohammed v. Returning Officer [2014 (1) KLT 201] was relied on to contend that the Election Commission cannot usurp the powers of the Chief Executive of the Society with respect to preparation of voters list. The decision in
Madhavan Namboodiri v. Kammaran [1992 (2) KLT 567] was relied upon to contend that in case of blatant irregularity in the adjournment of election, the Managing Committee could resolve on a date to resume the conduct of the election from the stage at which it has been interdicted.
5. The learned counsel for the additional 5th respondent would contend that there is gross illegality in the preparation of the voters list, insofar as the persons who are not residing within the area of operation of the Society also are included. Dead persons and persons who are no longer entitled to continue as members have been placed in the draft voters list, enabling widespread rigging and impersonation in the elections. The learned counsel would specifically draw attention to the bye-laws of the Society, which indicates the area of operation of the Society and the Secretary is alleged to be under a misapprehension of the area of operation of the Society.
6. The learned Special Government Pleader would seek to support the action of the Election Commission, pointing out the overall supervision of the elections, which authority has been conferred under Section 28B, which includes the preparation of the electoral roll also. The importance of a defectless electoral roll cannot but be emphasised in a democratically constituted election and the Election Commission, noticing the gross illegalities, thought it fit to interfere, is the argument. No fault can be found on the Election Commission, since the Secretary, as was reported by the Electoral Officer, took a recalcitrant attitude and refused to assist the Electoral Officer in deciding upon the objections.
7. The objection filed by the additional 5th respondent has been produced in his writ petition as Exhibit P3. A reading of Exhibit P3 would indicate that the same is as vague as it can be. But for producing a list of around 900 members, no specific allegations against the said members are seen raised in Exhibit P3. The allegations in Exhibit P3 are general in nature. Exhibit P3 alleges that the enrolment of members have been made flouting the bye-laws, which insist that only residents or persons who have either employment or property within the area of operation alone are entitled to be made members of the Bank. It is also stated that in the past 10 years, many persons who were not entitled to be members have been enrolled and found a place in the draft voters list. The allegation is also that there are many who have membership in two Societies of like nature. Further objection raised is that dead persons also find a place in the draft voters list.
8. It is to be specifically noticed that despite having given a list of 900 members, the additional 5th respondent does not state as to the specific ground on which each of the members in the list are disqualified. The general allegations made definitely cannot be looked into at the time of elections by the Electoral Officer, for reason only of constraints of time. Nor is a roving enquiry intended as has been stated in Vijayakumar (supra). A Division Bench of this Court, dilating upon the powers of the Returning Officer under Rule 35, held that in considering objections to a draft voters list what is intended is a verification of the materials placed before the Electoral Officer by the objectors and the authorities of the Society. The objection placed before the Electoral Officer was in the widest terms without any specific allegation as to the inclusion of any particular member.
9. The entire gamut of disqualifications were widely stated in the objection and a list of around 900 members produced along with it. The least this Court would have expected in a bona fide objection, is the enumeration of the ground on which each or a group of members are found to be disqualified. The contention of the additional 5th respondent that he had approached the Joint Registrar to initiate proceedings under Rule 16(4) of the Rules cannot also be countenanced at this point of time, since the same has been done just prior to the elections.
10. The prayer in the writ petition filed by the additional 5th respondent and another, is also only to ensure a proper election to be conducted, after verification of the identity of the voters in the Form 6B Register. A subsequent amendment is made challenging the election notification. The prayer with respect to the consideration under Rule 16(4) has been made on the basis of an application said to have been presented before the Electoral Officer on 19.05.2014. The out-going Managing Committee has taken a valid resolution to conduct the election on 27.07.2014, on 17.05.2014. It does not require a deep probe to understand as to what prompted the additional 5th respondent to seek initiation of proceedings under Rule 16(4) before the Joint Registrar (General).
11. It is of considerable relevance that the total members in the voters list is 14952, of which objection is raised with respect to 900 members. Even now, before this Court, the objector to the draft voters list is unable to point out the specific ground on which each or any of the members amongst the 900 in the objection are disqualified. Much argument has been made against the recalcitrant attitude of the Secretary in issuing Exhibit P4 communication, expressing inability to verify the sustainability of the objections or the claim of disability alleged against the 900 and odd members. The time granted for considering the objections on a specified date even as per Exhibit P1, is very limited, i.e., between 11.00 a.m. and 1.00 p.m. on 01.07.2014. The objection of the additional 5th respondent is said to have been received on 30.06.2014 and the communication of the Electoral officer to the Secretary is also on 01.07.2014. Considering the number of members whose inclusion has been objected to as also the non-specification of the ground of disqualification, what persuaded the Secretary of the respondent-Bank to issue Exhibit P4 is not an act of defiance, but is in pure helplessness, due to reason only of paucity of time. The Electoral Officer, quite understanding the constraints of time as also the duty enjoined upon him in considering the objections, published the final voters list. There is no dispute on that count.
12. It is after publication, even going by Exhibit P10 order of the Election Commission, that the Electoral Officer, who was also the Assistant Registrar, furnished a report dated 08.07.2014 expressing his inability to consider the objections. If inability was due to the failure of the out-going Managing Committee of the Bank or of the Secretary, nothing prevented the Electoral Officer from communicating such omission on the part of the Bank to the Election Commission before publication of the final voters list. The action of the Electoral Officer in publishing the final voters list can only be taken as one taken bona fide, acting within the specific powers conferred under Rule 35A of the Rules, which is akin to the power conferred under Rule 35 dilated upon in Vijayakumar (supra).
13. Any discrepancy with respect to the inclusion of ineligible members in the voters list could definitely be objected to by either party at the time of elections, upon which the Returning Officer would be enjoined upon to verify the identity of a voter with the Form 6B Register. This Court is not convinced that the order of the Election Commission was necessitated on the circumstances and facts placed before this Court. This Court is also not convinced that a revision of voters list is necessary at this stage. An obvious anomaly in the covering letter to Exhibit P10; is the cancellation of notification of election as such, while the order itself having temporarily adjourned the polling. Considering the entire facts, this Court is persuaded to hold that, what has happened is the mere adjournment of the polling, since the entire formalities were over before Exhibit P10 communication was issued.
14. In the above circumstances, the election to the Bank has to be held with all expediency on the basis of the draft voters list handed over by the out-going Managing Committee and the final voters list published by the Electoral Officer. The order of the Election Commission had, in fact, adjourned the polling. The elections would have to be resumed from the stage at which it was stopped. Sufficient support is garnered for the above proposition from the decision in Madhavan Namboodiri (supra).
15. One other issue which arises for consideration is the continuance of the Managing Committee, despite its term having expired. The continuance of the Managing Committee has been facilitated by the interim order of this Court dated 04.08.2014. The petitioners seek to remain in office on the basis of Exhibit P11 order, while the Special Government Pleader seeks vacation of the interim order as per Exhibit P12. Obviously, in the wake of the general elections to the Lok Sabha, Exhibit P11 was passed, by which the term of the elected committees in the Co-operative Societies under Section 28 of the Act was substituted with the words “five years and five months’ for the words “five years”. However, Exhibit P12 has modified the said order and the same would apply only till 19.08.2014. The committee which has completed the term of office; going by the various decisions of this Court cannot be allowed to continue in office. The Joint Registrar, hence, is directed to appoint an officer of the Department as the Administrator of the Bank only to ensure the day-to-day functions as also for convening an election, which has to be resumed from the stage at which it was stopped. The Joint Registrar shall ensure that the Administrator, immediately after taking charge, takes a resolution fixing the date of polling and forward the same to the Election Commission with all expediency. The Election Commission shall act on it and facilitate the notification to be made, on which date the polling shall be conducted, resuming the election from the stage at which it was stopped.
The writ petitions are disposed of as above. Parties are left to suffer their respective costs.
vku.
Sd/-
K.Vinod Chandran, Judge ( true copy )