M CHANDRAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is a member of the 3rd respondent, the Koonayil Coir Vyavasaya Cooperative Society Ltd. No. Q-636, Paravoor (Society) The term of the Managing Committee of the Society was to expire on 30th June 1983. The election for the constitution of a new Committee was fixed for 20th June 1983. The 2nd respondent, the Project Officer (Coir), Quilon appointed the 4th respondent, Coir Inspector, Paravoor as the Returning Officer for the conduct of the election under R.35(2) of the Kerala Cooperative Societies Rules. The 4th respondent issued a notice Ext. P1 dated 18th May 1983 announcing the programme of the election. Under this programme the nomination papers were to be submitted at the office of the Society on 12th June 1983, and after the scrutiny etc. of the nomination papers the election, if found necessary was to be held on 20th June 1983 from 11 a. m. to 5 p. m. The petitioner and 6 others filed their nominations within the, time specified in Ext. P1. On scrutiny all the nominations were found valid and accepted. Since none of the candidates withdrew the 4th respondent published the final list in the Notice Board of the Society on 16th June 1983 Ext. P1 had specified that the number of members to be elected to the Managing Committee was 7. As the number of nomination was only 7 all that remained for the 4th respondent to do was to declare that all of them had been duly elected to the committee. Instead of following: this course the 4th respondent issued the proceedings Ext. P3 dated 17th June 1983. It says:

(2.) None of the respondents has filed counter affidavits challenging the averments in the petition. The only question that therefore falls to be decided is whether on the undisputed facts the petitioner is entitled to the reliefs sought by him. Counsel for the petitioner brought to my notice R.35(3)(h) and (p). R.35(3)(h), so far as relevant, provides that if for any area or constituency for which election is to be held, the number of candidates whose nomination papers have been declared valid does not exceed the number of candidates to be elected for that area or constituency, the Returning Officer shall on the day fixed for the election, announce the names of all such candidates whose nominations are valid and declare them to have been duly elected to the Committee. What happened in the present case was that the number of valid nominations was the same as the number of members of the Executive Committee. In terms of this clause all that the Returning Officer, the 4th respondent, had to do was to announce the names of all these candidates and declare them to have been duly elected by the Committee. Instead of following this clear course the 4th respondent decided to postpone the election for the period of 3 months in compliance to an order of the Director, Coir Development. That order is not before me. But whatever be the nature or contents of that order it is immaterial, for the Director, Coir Development has no power under the Act or the Rules to order the stoppage or postponement of the election. No provision empowering the Director, Coir Development in this regard has also been brought to my notice. The postponement of the election was therefore improper and beyond the authority of the 4th Respondent. The only occasion on which the 4th respondent could postpone the polling is that provided by R.35(3)(p) which deals with a situation where 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. Another provision that may also be mentioned is R.35(3)(e)(v). That enacts that 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. I referred to these provisions only to illustrate the limited grounds on which election proceedings or the polling could be adjourned No such situation existed in the present case. As I mentioned above the ground relied on by the 4th respondent in Ext. P-3 is a ground which is untenable. The postponement of the election was therefore erroneous.

(3.) The only question that now survives is the direction that should be issued to the 4th respondent. While counsel for the petitioner submitted, that the 4th respondent should be asked to declare the result of the election in terms of R.35(3)(h) the learned Government Pleader contended that as the election had been stopped or postponed for 3 months the proper course would be to direct the 4th respondent to start the election proceedings de novo. In aid of this contention he cited Mavelikkara Cooperative Housing Society Ltd. v. Alleppy District Cooperative Bank ( 1974 KLT 783 ). Besides contending that this decision does not lay down correct law and that in any case it has no application to the facts in the present case counsel for the petitioner brought to my notice the Bench decision Abubaker v. Kunhavaran ( 1983 KLT 995 ). This decision distinguished 1974 KLT 783 and laid down that stoppage of a polling does not mean that what has been done could be rendered ineffective and that on the plain meaning of the Rule stoppage of the polling for the time being operates only to discontinue the polling so that it may be continued again. In view of this pronouncement of the scope and meaning of the Rule it is unnecessary to discuss 1974 KLT 783. As the 4th respondent only stopped or postponed the election and as the ground on which it was done is found to be wrong he should be directed, as rightly contended by the petitioner, to proceed further from the stage at which he stopped or postponed the election. I accept the petitioner's contention on the point.