Idukki District Police Co-Operative Society vs Electoral Officer to Idukki District Police Co-Operative Society and Another

K. Surendra Mohan, J.—The issue that arises for consideration in both these Writ Petitions is, whether the Electoral Officer has the power

to remove the names of ineligible persons from the preliminary voters'' list, while considering the objections to the said list. Since the issue raised is

common, these Writ Petitions are considered and disposed of together. The essential facts are not in dispute.

The election of office bearers of the Idukki District Police Co-operative Society Ltd. No. (1) 490 (hereinafter referred to as ''the Society'' for

short) is scheduled to be conducted on 17.02.2013. The term of the present Managing Committee in office expires on 03.03.2013. Therefore, the

Managing Committee has decided to conduct a fresh election on 17.02.2013. Accordingly, an election notification dated 29.1.2.2012 has been

published, which is Ext. P1 in both these Writ Petitions. In accordance with the schedule contained in Ext. P1, the preliminary voters'' list was

published on 16.01.2013. The said list contained a total number of 2625 persons. The objections were called for, to the preliminary voters'' list.

Objections were considered and a final voters'' list was published on 24.01.2013. According to the petitioners, the names of 351 members have

been deleted from the preliminary voters'' list, by the Electoral Officer while publishing the final voters'' list. According to the petitioners, the names

of the said persons have been removed without conducting any enquiry and without calling for objections from any quarter.

According to Sri P.N. Mohanan, who appears for the petitioner in W.P. (c) No. 2639 of 2013, Rule 35(3) of the Kerala Co-operative

Societies Rules, 1969 (hereinafter referred to as ""the Rules"" for short) contains a provision enabling the Returning Officer to publish a final list of

eligible voters"", which implies that the Returning Officer is empowered to delete the names of ineligible voters. However, such a provision is

absent in Rule 35A of the Rules. Rule 35A(4) casts a duty on the Electoral Officer to publish the preliminary voters'' list prepared by the Managing

Committee, calling for objections to the same. After considering the objections, the Electoral Officer has to publish the final voters'' list in Form

No. 35. Since the words ""eligible voters"" have been omitted from Rule 35A, it is contended that the Electoral Officer has no power to remove the

name of any person from the preliminary voters'' list. In the absence of a power to remove any name from the preliminary voters'' list, the action of

the Electoral Officer in the present case in removing the names of 351 members is stated to be arbitrary and illegal. The learned counsel also places

reliance on Ext. P4 judgment of this Court to contend that in a similar situation, this Court had permitted the persons who had been so removed to

participate in the election, to vote and also to contest as candidates. Therefore, the learned counsel seeks the issue of similar directions in the

present case also.

The petitioner in W.P.(c) No. 3159 of 2013 is a member of the Society, whose name has been removed from the preliminary voters'' list by the

Electoral Officer. According to him, he is one of the founder members of the Society and a former office bearer thereof. However, according to

him, he has been transferred to the Mundakkayam Police Station in Kottayam district on 13.06.2012 and is presently working there as the

Assistant Sub Inspector of Police. According to him, the fact that he has been transferred out of Idukki district does not disqualify him from

continuing as a member of the Society. He is a permanent resident of Kattappana in Idukki district and was admitted as a member of the Society

while he was working at Kattappana Police Station. He places reliance on clause 9 of the Bye-laws of the Society to contend that none of the

situations contemplated therein, that would result in the disqualification of a member, applies to him. He is also a person who is desirous of

contesting the election as a candidate. Therefore, he has been denied both his right to vote as well as his right to contest the election. According to

him, a person who is admitted to the membership of the Society is entitled to continue as a member thereof, until he retires from service. For the

above reasons, it is contended that appropriate orders declaring that he is entitled to vote and contest in the election are necessary to be issued in

this case.

Apart from the above, the learned counsel appearing for the petitioners in both these Writ Petitions point out that though 351 members have

been removed as stated above, various other persons who are presently stationed outside Idukki district are still seen included in the final voters''

list. Consequently, it is contended that the final voters'' list published is defective, inasmuch as, it includes the names of persons who are, even

according to the Electoral Officer, ineligible to participate in the election and to vote.

A statement has been filed by the 1st respondent/Electoral Officer (2nd respondent in W.P.(c) No. 3159/2013). According to the said

respondent, the preliminary voters'' list was published on the notice board of the Society on 16.01.2013 and objections were called for, to the

same. The time fixed for submitting objections was till 5 p.m. on 22.01.2013. On 17.01.2013, one of the members of the Society submitted his

objections to the voters'' list pointing out that 381 members included therein were persons ineligible to continue as members as per the bye-laws of

the Society, since they were not working within the area of operation of the Society. Therefore, he sought for their removal from the final voters''

list. On receipt of the said objection, the 1st respondent sent a copy thereof, together with the names and addresses of the 381 members against

whom objections were raised, to the District Superintendent of Police, Idukki, seeking information as to whether the said persons were working

within the limits of Idukki district. The District Police Chief as per letter No. A-121/2013-ID dated 19.01.2013 informed the 1st respondent that

out of the 381 persons named, 351 persons were not working in the Idukki District (Police Department). Since clause 2 of the Bye-Laws of the

Society limits the area of operation of the Society to the Police officers working in Idukki district, it was found that the 351 persons were not

eligible to participate and vote in the election. The said persons are also not qualified to be members of the Society in view of clause 6 of the Bye-

Laws. Therefore, on a consideration of the objections of Sri Thankachan and the report of the District Police Chief, names of the said 351 persons

who were found to be ineligible to participate and vote in the election were removed from the final voters'' list. The 1st respondent also maintains

that no person has been removed from the membership of the Society. They have only been removed from the list of eligible members of the

Society.

According to Sri D. Somasundaram, the learned Special Government Pleader, it was within the powers of the Electoral Officer to remove the

names of the ineligible persons. Reliance is also placed on the decision of this Court reported in Abraham K. Mathew and Another Vs. Returning

Officer to Thariodu and Others to contend that it was within the powers of the Electoral Officer to remove the names of such ineligible members

after conducting a summary enquiry. For the above reason, it is contended that the petitioners are not entitled to any of the relief''s claimed by

them.

Advocate B.S. Swathi Kumar, who appears for the additional 3rd respondent who has got impleaded in W.P.(c) No. 2639 of 2013, supports

the contentions of the learned Special Government Pleader. According to the learned counsel, the petitioner herein was one of the persons who

had submitted objections to the voters'' list. His objection is Annexure-A. The objection submitted by one Sri Thankachan. K.G. is Annexure-B.

The list appended to Annexure-B contains the name of dead as well as retired persons, besides persons who have been transferred out of Idukki

district. The objections were specific and related to named individuals. Therefore, the Electoral Officer sought information regarding the service

details of the said persons, on the basis of which the names of the persons who were found to be ineligible have been removed. The procedure

adopted is in accordance with law and does not call for any interference. It is also pointed out that none of the persons so removed has

approached this Court raising any complaints. The petitioner in W.P.(c) No. 2639 of 2013 is the President of the Society who has not prepared

the preliminary voters'' list carefully. Therefore, the names of ineligible members who were carelessly included, had to be removed. The fact that

the petitioner''s complain only gives rise to a presumption that he has included the names of ineligible persons in the preliminary voters'' list

deliberately, with the object of manipulating the electoral process. For the above reasons, the learned counsel contends that the Writ Petitions are

only to be dismissed.

I have heard the learned counsel appearing for the contesting parties, elaborately. I have also considered the rival contentions advanced before

me, anxiously.

The power of the Electoral Officer in the conduct of an election of office bearers of a Co-operative Society is conferred by Rule 35A of the

Rules. According to the said provision, the State Co-operative Election Commission has to appoint an Electoral Officer from among the officers of

the concerned Administrative Department, N who shall be responsible for the publication of the list of members qualified to vote at the election in

accordance with the provisions of the Act, Rules and Bye-laws as stood on a date 60 days prior to the date fixed for the poll''. A perusal of the

above provision makes it abundantly clear that it is the responsibility of the Electoral Officer to see that a list of members qualified to vote at the

election is published. His duty extends not only to publication of a preliminary voters'' list, but also to finalising the said list after considering the

objections received by him to the said list. The above ""responsibility"" coupled with the ""duty"" cast on the Electoral Officer implies the conferment of

all necessary powers on him to consider the objections received by him to the preliminary voters'' list, to reject the frivolous and baseless

objections and also to accept valid objections. Acceptance of valid objections would necessitate alteration of the preliminary voters'' list either by

adding the names of eligible members who have been left out or by removing the names of ineligible members who have been included. Unless the

above powers are conceded to the Electoral Officer, it would not be possible for the said officer to discharge his responsibility to publish a list of

members qualified to vote at the election. The said qualification has to be determined not only in accordance with the provisions of the Act and the

Rules but also in accordance with the provisions of the Bye-laws. The reference to Bye-laws has necessarily to be to the Bye-laws of the society

concerned. Therefore, it has to be held that the Electoral Officer is conferred with all the powers necessary for the discharge of the responsibility of

ensuring that a list of members qualified to vote at the election is published. Consequently, the Electoral Officer has the power to remove the names

of ineligible members from the preliminary voters'' list, which power is inherent and evident from the wording of Rule 35 A(4) itself. Therefore, the

absence of the words, ""a final list of eligible voters"" in Rule 35 A does not make any difference at all.

I am supported in the above view by the dictum in Abraham K. Mathew v. Returning Officer (supra). In the said case, Thottathil B.

Radhakrishnan, J. had to consider a similar question as to whether the Electoral Officer had the power to remove the name of a person from the

voters'' list. After considering the scope of Rule 35A (4), the issue has been concluded in the following words in para. 3 of the judgment:

The chief executive of the society is duty bound to prepare and update the list as per Rules and submit the voters'' list duly approved by the

committee, to the Electoral Officer. The Electoral Officer, then publishes the preliminary voters'' list and is duty bound to call for objections, if any,

to that. He is to publish the final voters'' list fifteen days prior to the date fixed for the poll. The final list has to be published in the head office and

branches of the concerned society. The chief executive thus prepares what is statutorily called ""preliminary voters'' list"" and the Electoral Officer

prepares and publishes the ""final voters'' list"". The comment in the opening part of Cl. 4 of R. 35-A is that the Electoral Officer shall be responsible

for the publication of the list of members ""qualified to vote"" in accordance with ""the provisions of the Act, Rules and Bye-laws"". The Electoral

Officer, after publishing the preliminary voters'' list, is to call for the objections and then he has to publish the final voters'' list. Calling for objections

to a preliminary voters'' list and the obligation to publish the final list coupled with the duty and responsibility to publish the list of members, who are

qualified to vote"" abundantly demonstrate that ""calling for objections "" is not an empty formality but is intended to achieve the results that would

enable the Electoral Officer to discharge his statutory function in terms of the responsibility to publish the list of members who are qualified to vote.

Therefore, any objection relatable to the qualification to vote, if raised on publication of the preliminary voters'' list, shall be considered by the

Electoral Officer. The resultant decision would reflect in the final voters'' list. If I were to assume that the legislature has consciously excluded from

Cl.4 of R. 35-A, the requirement to consider the objections and also the eligibility to vote, I am afraid that I would be taking the wind off the sails

of the Electoral Officer bestowed with the authority and the statutory obligation to call for objections to the preliminary voters'' list. He would then

be just obliged to call for objections as if it were an empty formality and leave matters there. Precision, finality and conclusions on controversies are

the necessary goals that have always to be maintained and ensured in the electoral process. Therefore, the decision of the Division Bench (supra)

applies in all force to cases coming under R. 35-A also.

The nature of the power available to a Returning Officer under Rule 35 of the Rules had come up for consideration before a Division Bench of

this Court in Vijayakumar v. Joint Registrar, 1996 (1) KLT 285. After an elaborate consideration of the various provisions, Patnaik, J. has held as

follows in para. 16 of the said judgment:

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.

Though the above observation has been made with respect to Rule 35 of the Rules, the same applies with all force to Rule 35A also. As I have

already held, the only difference in Rule 35A is that, instead of the Returning Officer, it is the Electoral Officer who has been empowered to finalise

the voters'' list. But, finalisation of the voters'' list has necessarily to be preceded by a consideration of the objections and removal of ineligible

members or adding of eligible members. The above position has been noticed by T. Ramachandran Nair, J. also in an unreported judgment dated

15.10.2010 in W.P.(c) No. 18192 of 2010, which has been produced as Exhibit-P4 in W.P. (c) NO. 2639 of 2013. His Lordship has held as

follows in paragraph 29 of the said judgment:

...The power is conferred on the Electoral Officer to publish the preliminary voters list and finalise it. Herein, at the first stage itself the

Administrator did not include 25 institutional members and such a list was forwarded. Actually the Electoral Officer alone could have received

objections to the voters list, if such an objection was raised by any other members. There is no plea herein that before the Administrator any

members filed any representation to remove 25 institutional members also.

The next question is whether the exercise of the power by the Electoral Officer in this case is proper or not. On receipt of the objections

produced as Annexure-B along with I.A. No. 1683 of 2013 in W.P.(c) No. 2639 of 2013, with a list of the allegedly ineligible persons appended

thereto, the Electoral Officer has addressed the District Police Chief, Idukki, seeking information as to whether the persons included in the list were

stationed within the district or not. On the basis of the information received from the District Police Chief, out of the 381 persons included in the

said list, 351 persons were found to be not persons working within the limits of Idukki district. On the basis of such information, the names of the

said persons have been removed. According to Sri P.N. Mohanan, the Electoral Officer had no authority to call for such information from the

District Police Chief, especially in a situation where no material to support the allegations in the complaint Annexure-B was produced by the

objector. According to the learned Special Government Pleader, authoritative information regarding the postings of Police personnel within the

district could be obtained only from the District Police Chief and it was for the said reason that the said authority was addressed. On the basis of

the information so received, it was found that only names of 351 persons in the list were liable to be removed. It is therefore contended that the

Electoral Officer has acted fairly and reasonably.

I have already found above that it is the responsibility of the Electoral Officer under Rule 35 A (4) to ensure the publication of a list of

members qualified to vote at the election. For the discharge of the said responsibility, it is certainly open to the said officer to take recourse to all

reasonable means. It is true that the Electoral Officer need not make a roving enquiry. However, when objections are raised against persons

specifically named by the objector, the Electoral Officer has a duty to decide whether the objection was sustainable or not. For the purpose, it was

certainly within the powers of the Electoral Officer to have sought for authentic information regarding the postings of the persons named by the

objectors. I do not think there is anything wrong with the procedure adopted. It is also pertinent to note that the petitioners do not have a case that

an error has been committed by the Electoral Officer in removing a person who is actually stationed within the Idukki district. On the contrary, the

case of the petitioners is that, notwithstanding their present postings outside Idukki district, they have a lien in respect of their posts within the

district. As rightly pointed out by the learned counsel for the respondents, no complaint that any person stationed within Idukki district has been

erroneously excluded from the final voters'' list, has been received from anyone.

In order to decide whether persons posted outside Idukki district can claim to be included in the voters'' list, a reference to the Bye-law

provisions is necessary. The relevant portions of the Bye-laws of the Society are produced as Annexure-C in I-A. No. 1683 of 2013 in W.P.(c)

No. 2639 of 2013. Bye-law No. 2 fixes the area of operation of the Society limiting the same to be among the officers of the Police Department of

Idukki district. Bye-law No. 6 provides that officers belonging to all categories of the Police Department in Idukki district are qualified to become

members of the Society. However, persons who are members of other Societies are disentitled to claim membership, as long as their membership

in the other society subsists. Bye-law No. 9 provides for termination of the membership, which would result, on the happening of one of the

contingencies made mention of therein.

The above provisions show that though a person who becomes a member of the Society would continue to be a member until one of the

contingencies made mention of in Bye-law No. 9 terminates his membership, the fact remains that the persons who are not officers of the Police

Department of Idukki district cannot be said to be qualified to vote in view of Bye-law No. 2. It is true that a person may become disqualified to

continue as member for various reasons. However, he can be removed from membership only in compliance with the provisions of Rule 16(3) of

the Rules. But, for the purpose of including his name in the final voters'' list, it is necessary that he should be qualified to vote. In the absence of

such a qualification, his name can be removed from the voters'' list. The said action does not entail removal of the persons from the membership of

the Society. According to the petitioner in W.P.(c) No. 2639 of 2013, the persons removed from the final voters'' list are all working outside the

district. The above is evident from the opening words of paragraph 8 of the Writ Petition, which reads as follows:

But the Electoral Officer removed 351 members on the reason that they are working in other Districts who are belong to particular group. All of

them are transferred to various places considering the exigencies of the situation retaining their lien in Idukki District except inter district transfer

with willingness.

According to the petitioner in W.P.(c) No. 3159 of 2013, he is working as an Assistant Sub Inspector of Police at Mundakkayam in

Kottayam district. Therefore, on facts also, I do not find any grounds to entertain the claims of the petitioners.

Yet another contention of the learned counsel for the petitioners is that while removing the names of 351 members from the voters'' list, the

names of numerous persons who are similarly stationed outside Idukki district are still retained in the final voters'' list. The above is clear from the

voters'' list Ext. P3 itself, in which the station at which a person is posted, is shown as ""other district"" against the names of various persons.

Therefore, it is contended that the petitioners have been discriminated while retaining the names of other similarly placed persons in the voters'' list.

The learned Special Government Pleader answers the above contention by pointing out that the Electoral Officer has considered only the

objections submitted before him. It was only about the persons whose names were the subject matter of the objections received by him, that he

had sought information from the District Police Chief. It is admitted that the Electoral Officer has not conducted any enquiry regarding the other

persons whose names are shown in the voters'' list. I am of the opinion that the explanation of the Electoral Officer is perfectly reasonable. As I

have already found above, the power of the Electoral Officer extends only to the consideration of the objections received. On the basis of his

decision regarding the sustainability of the objections, he is entitled to remove the names of ineligible members or to add the names of eligible

members. It has been held by this Court that the Returning Officer does not have the power to make a roving enquiry. Therefore, it cannot be said

that the Returning Officer should have considered the eligibility of the other persons whose names are included in the voters'' list, though no

objections were raised against them. For the above reasons, I do not find any infirmity in the action of the Electoral Officer in removing the names

of only those persons against whom objections were raised. If it is found after the election that the results thereof have been materially affected by

the inclusion of the names of ineligible persons in the voters'' list, the remedy of challenging the election by way of an Election Petition is still

available to the petitioners. In view of the above it is held that no interference at the hands of this Court is called for on the said ground also.

For the above reasons, the petitioners are not entitled to any of the relief''s claimed'' in these Writ Petitions. These Writ Petitions fail and are

accordingly dismissed.