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2017 DIGILAW 397 (KER)

B. JUSTIN, S/O. BERKMANS v. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FISHERIES DEPARTMENT

2017-02-23

DEVAN RAMACHANDRAN

body2017
JUDGMENT : As an exordium, I must remember that I am bound by the binding precedent of the Hon'ble Supreme Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Another v. State of Maharashtra & Others ( (2001) 8 SCC 509 ) and Vadathara District Co-operative Sugarcane Producers Union Ltd. v. Chandrakantbhai Thakorebhai Patel ((2005) 11 SCC 523) by which the courts acting under Article 226 of the Constitution of India are prohibited and restrained from interfering with issues relating to elections and specifically those concerning the Electoral Roll once notifications for such elections are published. I am aware that the Hon'ble Supreme Court has clearly delineated the jurisdictional parameters of courts in relating to such disputes and has proscribed any form of interference once the process has begun. I keep this in mind while considering the nature of the reliefs that can be granted to the petitioners in these writ petitions. 2. These writ petitions are filed by the members of the Moothakara Fishermen Development Welfare Co- operative Society under the jurisdictional control of the third respondent. The Society operates under the provisions of the Kerala Co-operative Societies Act and Rules and is presently being administered by an Administrator. 3. The controversy arose when proceedings were notified for the purpose of conduct of elections to the managing committee of the Society, which was resisted on various grounds by the petitioners. They appear to be essentially aggrieved by the manner in which the voters' list was prepared and published and they allege that several undeserving persons have been inducted into the list by the then managing committee. They, therefore, have filed these writ petitions seeking various prayers, including that the process of election be interdicted. Since these writ petitions contain substantially the same averments, make more or less identical allegations and have sought reliefs which are connected to each other, I deem it appropriate that these writ petitions be disposed of jointly by this judgment. For the purpose of convenience, W.P.(C)No.37802/2015 is treated as the lead case and reference to the parties in this judgment will be as per the manner in which they are arrayed in the said writ petition. 4. I have heard the learned counsel for the petitioners, the learned counsel for the contesting respondents and the learned Government Pleader for the official respondents. 5. 4. I have heard the learned counsel for the petitioners, the learned counsel for the contesting respondents and the learned Government Pleader for the official respondents. 5. From the pleadings on record and the submissions made at the Bar, it is obvious that the contest primarily is as to the induction of certain persons into the published voters' list, which, according to the petitioner, had been done without authority by the then managing committee. They say that the managing committee had employed chicanery in admitting persons without the sanction of law and then even have the guile of misrepresenting before this Court regarding the persons who have been inducted and the persons who have been removed. I need not elaborate on this any further because these facts have been noticed by this Court in the detailed interim order issued on 21.12.2015. Two paragraphs of the said order would show the manner in which a learned Single Judge has considered these issues. The paragraphs are extracted as under: "Prima facie observed, though the managing committee had inducted 258 persons, it made it look as if it admitted only 96 persons. It has also had the audacity to place on record that 43 members have been removed, but not 180. The learned counsel for the petitioners could demonstrate before this Court that it replaced the old members with new ones assigning them the same membership number. With this artifice, the fifth respondent made light of things: it would have us believe that only 96 were admitted and 43 were removed. In my considered view, there is more than prima facie materials to conclude that the administrative committee has indulged in wholesale induction of new members and removal of existing members. Both the fifth respondent administrative committee and the eighth respondent have misdirected themselves in asserting that only 96 new members have been inducted and 43 existing members have been removed. In the light of the judicial dictum adverted to above, the admission of the new members by the administrative committee is impermissible. Thus, Exhibit P12 voters' list is vitiated." 6. Ineluctably, therefore, this Court had entered, more than as a prima facie view, an opinion that the then administrative committee had acted unfairly and illegally in admitting new members. In the light of the judicial dictum adverted to above, the admission of the new members by the administrative committee is impermissible. Thus, Exhibit P12 voters' list is vitiated." 6. Ineluctably, therefore, this Court had entered, more than as a prima facie view, an opinion that the then administrative committee had acted unfairly and illegally in admitting new members. I see that the order has now attained finality and none of the parties to these writ petitions have challenged it in any manner. The conclusions of the learned Single Judge in that order has virtually been accepted by the parties which is evident from the fact that no one has mounted any challenge against them. Even though I am restricted in the exercise of jurisdiction by the ratio of the Hon'ble Supreme Court in Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha (supra), I think this is a case where a forensically justifiable exception can be drawn to grant reliefs as would be essentially required to ensure that elections are able to be completed expeditiously but within the parameters of fairness and legality. 7. I am fully aware that in normal circumstances, I would not have been justified in entering into any inquiry as to the validity or otherwise of the voters' list, but looking at the way in which the above observations of the learned Single Judge had been made I do not think I can take it lightly and then simply dismiss it saying that no such interference can be made once the process of election has been initiated. For this reason alone, I think certain directions will have to be issued and I propose to make them as under. 8. Since I am of the firm view that none of the parties would be benefited by these writ petitions being pending here for ever and no one would obtain any benefit by maintaining the status with respect to the elections in the manner it has now come to be before this Court, it is only appropriate and desirable that the elections be allowed to continue without any further hurdle. I am told that the Society is now under the management of an Administrator because an attempt to appoint an administrative committee subsequent to the interim order of this Court dated 21.12.2015, has also been injuncted by this Court vide order dated 30.11.2016. I am told that the Society is now under the management of an Administrator because an attempt to appoint an administrative committee subsequent to the interim order of this Court dated 21.12.2015, has also been injuncted by this Court vide order dated 30.11.2016. Obviously, there cannot be any doubt that the Society is now under the management of the Administrator. If that be so, the administrator certainly will have to ensure that elections are conducted in terms of the law and in the procedure mandated within the quickest possible time. 9. The only impediment that I see in the conduct of the elections today is the findings of this Court as recorded above with respect to the voters' list. I reiterate I would not have normally interfered with it. But this is a case where this Court having already found, and which are now uncontested, that there are several persons who have been inducted into the voters' list illegally, I would not be justified in turning a blind eye to that and then taking umbra under the binding precedent to say that nothing can be done in spite of such observations. I do not think this would be fair and I do not think it will be just. I am sure that once this Court has made a record of its mind, at least as a prima facie view, that inclusion of certain persons is illegal it would then be required to be gone into and considered by an appropriate authority who has the necessary competence. 10. From a survey of the Act, Rules and Regulations, I cannot see a more competent and a better equipped authority than the Electoral Officer, the seventh respondent herein, to consider the legality or validity of the inclusions made in the voters' list by the earlier managing committee with specific advertence and reference to the interim order of this Court dated 21.12.2015, the relevant paragraphs of which are extracted above. I direct him to do so within a period of one month from the date of receipt of a copy of this judgment. 11. I direct him to do so within a period of one month from the date of receipt of a copy of this judgment. 11. Since these writ petitions have been pending before this Court for the past more than two years, it is only appropriate that the Administrator and the seventh respondent-Electoral Officer take every effort to have the elections completed from the stage at which the proceedings were at the time of the interim order dated 21.12.2015 at the earliest possible time but not later than six months from the date on which the Electoral Officer completes the review of the voters' list, as directed herein before, by weeding out ineligible persons and if law permits, to induct persons who are eligible as has been noticed in the interim order. The writ petition is ordered as above. In the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs.