VATTAVILA VIJAYAKUMAR Vs. STATE CO-OPERATIVE ELECTION COMMISSION

JUDGEMENT

(1.) W.P(C)No.7029 of 2026 has been filed challenging Ext.P2 notification issued by the State Co-operative Election Commission to the Managing Committee of Kerala State Handloom Weavers (HANTEX) Co- operative Society Ltd. (hereinafter referred to as 'the HANTEX') on the ground that the notification is contrary to the provisions of sub-sec. (1CA) of Sec. 28 of the Kerala Co-operative Societies Act, 1969 (hereinafter referred to as 'the 1969 Act'). The petitioner has also raised a contention that the voters' list, which is on record as Ext.P7, has been published by the Electoral Officer, violating the provisions contained in Rule 35A (4) of the Kerala Co-operative Societies Rules, 1969 (hereinafter referred to as 'the 1969 Rules'). The petitioner is thus before this Court to quash Exts.P2 and P7 and for a direction to the State Co-operative Election Commission to issue a fresh election notification in compliance with the mandate of Sec. 28 (1CA) of the 1969 Act and for a further direction to respondents 2 to 4 to publish the voters' list strictly following the mandate of Rule 35A (4) of the 1969 Rules. The petitioner has also sought a direction that certain societies included in the voters' list be removed from the list.

(2.) W.P(C)No. 16968 of 2026 has been filed challenging the election notification on the ground that the notification is not in accordance with the provisions contained in Sec. 28 (1CA) of the 1969 Act.

(3.) Sri. P. N. Mohanan, the learned counsel appearing for the petitioner in WP(C)No.7029 of 2026, would refer to the provisions of Sec. 28 (1CA) and Sec. 28A of the 1969 Act and also to the provisions of Rule 35A (4) of the 1969 Rules to contend that Ext.P2 notification and Ext.P7 voters' list are liable to be interfered with. It is submitted that Sec. 28 (1CA) of the 1969 Act was introduced by way of amendment inserted vide the Act No.9 of 2024 dtd. 7/6/2024. It is submitted that after the introduction of Sec. 28 (1CA) of the 1969 Act, every election notification must contain provisions for providing the reservations as contemplated by the provisions of Sec. 28 (1CA) of the 1969 Act. It is submitted that where the election notification itself is contrary to the law, the entire process of election commencing from the issuance of the notification should be declared illegal. It is submitted that no objection can be taken to the maintainability of this writ petition on the ground that the challenge must be raised in an election petition. The learned counsel referred to the decision of the Supreme Court in Devendra Kumar v. State of Uttaranchal and Others, (2013) 9 SCC 363, and in particular to paragraph 25 thereof, to contend that where the election notification itself is contrary to law, every proceeding following that notification is also bad in law. It is submitted that the said decision is also authority for the proposition that where the notification itself is not in accordance with the law, the Election Commission and any contesting respondent cannot be heard to contend that the proceedings before this Court should not be concluded on merits and the party should be relegated to the remedy of an election petition. It is submitted that the provisions of Sec. 28 (1CA) of the 1969 Act intend to provide representation for the persons below the age of 40 on the managing committee of each society and further provide that one such member below the age of 40 shall also be a woman. It is submitted that where the election notification seeks to defeat legislative mandate, the said notification must be set aside. The learned counsel has also handed over to me the notifications issued by the State Co-operative Election Commission for election to the Venkulam H.W.C (P & S) Society and the Kollode Handloom Polyester Weavers Co-operative Society issued on 17/2/2026 and 11/2/2026 respectively to contend that the Election Commission had clearly taken into consideration the mandate of Sec. 28 (1CA) of the 1969 Act while issuing the election notification in respect of the aforesaid societies. It is stated that, however, the Election Commission purposefully avoided the mandate of Sec. 28 (1CA) of the 1969 Act while issuing Ext.P2 notification, thereby vitiating the entire election process. The learned counsel also referred to the provisions of Rule 35A (4) of the 1969 Rules and submitted that the failure to indicate the details of the delegates as contemplated by the said Rule vitiates Ext.P7 voters' list.