JUDGMENT

The petitioner has approached this Court praying for a direction to quash the election notification issued as per Ext.P2 and to re-notify the election after publishing a proper notification as required under Rule 35A(3) of Kerala Co-operative Societies Rules. There is also a prayer for directing the 4th respondent to issue identity cards in Form 6A to all the members who filed the application.

2. On 29.08.2022, this Court had issued an interim direction to respondents 2 and 4 to issue identity cards in Form 6A to all eligible members who have filed their applications and who might file their applications. The core contention raised by the petitioner is that though Rule 35A(3) specifically requires that the State Election Commission shall notify the details of election to the Committee of the Society in two vernacular dailies having wide circulation in the area, in the case on hand, a notice has been issued by the Secretary of the Society. Copy of the notice has been produced as Ext.P2. A reading of Rule 35A(3) is sufficient to show that Ext.P1 is not a notification issued in the manner prescribed under the Rule. No doubt, a notice may also serve as an information to the voter regarding the election. The only question is whether such a notice is sufficient in view of the prescription contained in the Rule.

3. Heard the counsel for the petitioner and Standing Counsel for the Election Commission.

4. Standing Counsel for the Election Commission submits that even though the Rule has such a requirement, the writ petition was filed only one month after the notice was published and by now the entire process for conducting the election tomorrow has already been completed. It is further submitted that no prejudice will be caused since already 30 nominations have been received and three panels representing three different groups are participating in the election process.

5. This Court is called upon to decide on the legality of the manner in which the election has been scheduled. The process itself has started from Ext.P1 which according to the petitioner is not in accordance with law. Can the Court declare that the mandatory requirements in a Rule need not be followed merely for the reason that certain action has been taken on the basis of an illegal procedure? The answer can be only in negative. In Nazir Ahmad vs. King Emperor reported in (AR 1936 PC 253) it was held that “where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden”. In Chandra kishore Jha Vs.Mahavir prasad & Ors, reported in [(1999) 8 SCC 266] a Three Judge Bench of the Hon'ble Supreme Court held that “It is a well settled salutatory principle that if a Statute provides a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. Similar view was expressed in State of Uttar pradesh Vs. Singhara Singh and others [AIR 1964 SC 358] which was a case relating to the filing of an election petition. In Cherukuri Mani Vs. Chief Secretary, Government of Andhra Pradesh reported in [(2015) 13 SCC 722], the Hon'ble Supreme Court held that “Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure”. The judgment was followed in Municipal Corporation of Greater Mumbai Vs. Abhilash Lal [(2020 (13 SCC 234] and OPTO Circuit India Ltd. Vs. Axis Bank [(2021) 6 SCC 707]. All the above cases were considered and the law reiterated by the Hon'ble Supreme Court in Union of India v.

Mahendra Singh [2022 SCC OnLine SC 909]

6. In view of the categoric declaration of law, the notice of election in this case needs to be declared to have been not issued in accordance with the procedure prescribed.

In the result this writ petition is allowed. Ext.P2 election notification is quashed. The 3r