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Judgment
L. Manoharan, J.—The Election to the Board of Directors of the 1st Respondent was scheduled to be held on 23rd June 1991. The last date of receipt of nomination papers was 13th June 1991 and the scrutiny of the same was to take place on 14th June 1991. The election notification Ext. P-1 was published in Kerala Kaumudi Malayalam daily on 25th May 1991. The Petitioner submitted his nomination paper to the 2nd Respondent. There were 32 nomination papers, and on 14th June 1991 when second Respondent was scrutinising the 13th nomination paper a stranger trespassed into the office room and snatched away the nomination paper. The 2nd Respondent informed the police and also sent message to 3rd Respondent requesting as to the further steps to be taken in the matter. After the snatching of the nomination paper the 2nd Respondent stopped the proceedings. The 2nd Respondent published Ext. P-3 in the notice board to the effect that the further proceedings of the conduct of the election to the Board of Directors are stopped until further orders. The Petitioner, therefore, filed this Original Petition seeking to issue a writ of mandamus or other appropriate order or direction, directing the Respondents 2 to 3 to hold the election to the Board of Directors on a date prior to 30th June 1991.
Learned Counsel for the Petitioner submitted that the 2nd Respondent was not right in stopping the proceedings and that he is bound to proceed with the election process from the stage at which it was interrupted. On the other hand the learned Government Pleader contended that, in the given circumstances the only course open is to conduct a fresh election after taking all steps under Rule 35 of the Co-operative Societies Rules (for short ''the rules'').
The procedure regarding the conduct of election to the committee of the society is laid down in Rule 35 of the rules. In the context, the relevant Sub-rules are Rule 35(3)(e)(v) and (p) which reads:
Procedure regarding conduct of election to the Committee of Societies: * * * *
(3) * * *
(e)(i) On the day following the date fixed for the receipt of nomination papers, the Returning Officer shall take up the scrutiny of the nomination papers. The candidate or his proposer or his seconder may be present at the time of the scrutiny of nomination papers:
* * *
(v) The Returning Officer shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by riot or affray or by causes beyond his control.
* * *
(p) If at any stage of the polling the proceedings are interrupted or obstructed by any riot or affray or if at such elections it is not possible to take the poll for any sufficient cause, the Returning Officer shall have power to stop the polling, recording his reasons for such an action in the minute book of the society.
* * *
As per Rule 35(3)(e)(v) if the conditions mentioned in the said Sub-clause exist the Returning Officer would be entitled to adjourn the proceedings, but when at the stage of polling, the proceedings are interrupted on account of any of the causes mentioned in Rule 35(3)(p), the Returning Officer after recording his reason can stop the polling. What happened in this case is an interruption in the election process before the polling date. Therefore, the Returning Officer could not have stopped the proceedings but could have adjourned the proceedings.
The learned Government Pleader relied on the decision in Mavelikara Co-operative Housing Society Ltd. v. Alleppey District Co-operative Bank 1974 KLT 783 in support of his contention that the whole electoral process has to begin afresh. On the other hand, the learned Counsel for the Petitioner relying on the decision in Abubakar v. Kunhavaran and Ors. 1983 KLT 995 (D.B.) and George v. Joint Registrar of Co-operative Societies and Ors. 1985 K.L.N. 537 D.B. : 1985 KLT 836 contended that there is no need to start the electoral process afresh, instead the Returning Officer has to proceed with the process from the stage at which it has been stopped. In Abubaker''s case 1983 KLT 995 (D.B.) while the Returning Officer was taking steps to conduct the Election on 26th September 1981 at 8 a.m. certain persons obstructed the polling, thereupon the Returning Officer stopped the polling under Rule 35(3)(p). The prayer was to direct the Returning Officer to proceed from the stage at which he stopped the polling. The question considered was whether in such circumstances the electoral process should begin afresh or whether the process should be proceeded with from the stage at which the Returning Officer stopped the same. In considering the said question in paragraph 5 of the judgment the bench observes:
The power to stop the polling is not a power which enables him to efface what has already been done. The power of cancellation is differing from a power of stopping. When something is cancelled what has already been done is effaced.
The Court held that the stopping of the polling would operate as a discontinuance of the polling, so that the same could be continued again, and the Court directed the Administrator to fix a date for the continuance of the polling. In George''s case 1985 K.L.N. 537 (D.B.) : 1985 KLT 836 as to the effect of stopping the election, it is observed in Paragraph 19:
It is also relevant to note that if at any stage of polling, the proceedings are interrupted or obstructed as mentioned in Rule 35(p), the Returning Officer shall have the power to stop the polling recording his reasons. The election can continue thereafter from the stage when it was stopped and there is no necessity to start denovo the election process.
Thus these two decisions would clearly show that when the election is stopped under Rule 35(3)(p) of the rules the election process can be continued from the stage at which it was stopped. In writ appeal Nos. 250 and 218 of 1984 after noting that the normal Rule is as aforesaid, in that case as considerable time has passed since the interruption of the election by the stay orders, the court directed the Returning Officer to fix the date of poll and take all necessary steps for holding the election in accordance with the Rule 35. The normal Rule is when the election is stopped under Rule 35(3)(p) the process need not begin afresh but could proceed from the stage at which the election was stopped. It will be noted that in the case in writ appeal Nos. 250 and 318 of 1984; and Mavelikkara Housing Co-operative Society''s case 1974 KLT 783 the election was held up under stay. The basic feature in both Rule 35(3)(e)(v) and Rule 35(3)(p) is interruption of the electoral process, though the rules govern different stages. While the 2nd Respondent was scrutinising the nomination papers a person trespassed into the office room and snatched away one of the nomination papers. The said act was done to see that the electoral process is not proceeded with. In Abubaker''s case 1983 KLT 995 (D.B.) the polling was interrupted because of the obstruction caused by certain persons. The illegal acts aimed at to disrupt the election process it is to produce a result of repeating the electoral process afresh, that could even be incentive to such persons to destroy the democratic process of holding the election. Such acts which would stifle the democratic process cannot be permitted. In the Abubaker''s case 1983 KLT 995 (D.B.) it is observed:
Even from the point of view of expediency this would be a proper approach, for otherwise the election will have to commence over and over again if only there is an attempt again and again to create some trouble or obstructions. The incentive for creating such obstruction would be more if the effect of such obstruction is to nullify whatever has been done by way of polling.
As has already noted, the learned Government Pleader mentioned that there would be necessity to allow the candidate whose nomination paper has been snatched away to present a fresh nomination paper and in such event it will be necessary to repeat the process under Rule 35 again. There is no dispute that the nomination papers were submitted in time; and when a nomination paper is destroyed or lost the submission of the nomination thereafter by the candidate in effect could only be reconstruction of the document lost or destroyed, and that cannot be treated as filing a fresh nomination paper. It would amount only be substitution of the document which has been destroyed or lost. If the stopping of the election under Rule 35(3)(p) would enable to proceed with the election from the stage at which it was stopped, the purported stopping of election process under Rule 35(3)(e)(v) when the Returning Officer could have only adjourned the proceedings, cannot require to begin the electoral process afresh again. Therefore, the 2nd Respondent has to proceed from the stage at which he purportedly stopped the proceedings after reconstructing the nomination paper and fix the date of polling.
The 2nd Respondent is directed to proceed with the electoral process from the stage at which he stopped the said process expeditiously after fixing the date of polling.
The Original Petition is allowed as indicated above.