1. 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.

2. Since the issue raised is common, these Writ Petitions are considered and disposed of together. The essential facts are not in dispute.

3. The election of office bearers of the Idukki District Police Co-operative Society Ltd. No.(I) 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 29.12.2012 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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 v. Returning Officer [2009(2) KLT 249] 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 reliefs claimed by them.

9. 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 petitioners 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.

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

11. 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, 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 35A(4) it self. Therefore, the absence of the words, a final list of eligible voters in Rule 35A does not make any difference at all.

12. 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 by 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.

13. 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, finalization 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.R.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.

14. 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.

15. I have already found above that it is the responsibility of the Electoral Officer under Rule 35A(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.

16. 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.

17. 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:

8. 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 interdistrict transfer with willingness.

18. 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.

19. 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.

20. 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 reliefs claimed in these Writ Petitions. These Writ Petitions fail and are accordingly dismissed.