High Court Kerala High Court

T.N.Valsalan vs The Kozhikode Primary … on 19 August, 2010

Kerala High Court
T.N.Valsalan vs The Kozhikode Primary … on 19 August, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 25624 of 2010(C)


1. T.N.VALSALAN, THACHORAKKAL HOUSE,
                      ...  Petitioner

                        Vs



1. THE KOZHIKODE PRIMARY CO-OPERATIVE
                       ...       Respondent

2. THE RETURNING OFFICER, KOZHIKODE

3. THE ELECTORAL OFFICER/ASSISTANT

4. THE STATE  CO-OPERATIVE ELECTION

                For Petitioner  :SRI.P.P.JACOB

                For Respondent  :SRI.T.A.SHAJI

The Hon'ble MR. Justice K.SURENDRA MOHAN

 Dated :19/08/2010

 O R D E R
                K.SURENDRA MOHAN, J.
             -------------------------------------------
                W.P.(C) No.25624 of 2010
             -------------------------------------------
             Dated this the 19th August, 2010

                          JUDGMENT

The petitioner is a member of the first respondent

Society. He has filed this writ petition challenging Ext.P2

notification proposing to hold an election to the Managing

Committee of the first petitioner bank on 29.8.2010. As

per Ext.P2, the election is proposed to be conducted from

five separate electoral constituencies delimited by the said

notification. The total number of members to be elected is

‘9’. According to the petitioner, the delimitation of

constituencies in Ext.P2 has been done by the Managing

Committee in violation of the bye-laws of the Society. The

bye-laws of the Society could be amended only by the

general body and therefore, the action of the Managing

Committee is attacked as being absolutely without

authority and liable to be set aside. Further, as per

Ext.P2, two seats are reserved for women, which also is

alleged to be without the authority of the general body.

The petitioner, therefore, prays for setting aside Ext.P2

wpc No.25624 of 2010 2

notification.

2. A counter affidavit has been filed on behalf of the

first respondent-Society. In paragraph-5 of the counter

affidavit what is stated is that in view of the amendment to

Section 28A of the Kerala Co-operative Societies Act,

1969, (the ‘Act’ for short), as per the Amendment Act No.7

of 2010 that came into force on 28.4.2010, the number of

women members has been enhanced to three.

“Therefore, there is a statutory compulsion to
reserve three seats for women. The new
elected committee has to assume office
immediately. Therefore, it was not at all
feasible to convene a general body and make
consequential amendments in the bye-laws.
However, by virtue of the amended provisions
in Section 28A of the Act three seats are to be
reserved for women. Therefore, out of exigency
of the situation and due to statutory
compulsion the Managing Committee resolved
to give effect to the provisions of the Act,
without which the election could not be held.
Accordingly, it has been resolved to reserve
two more seats out of the existing general
seats for women and territorial limits of those
constituencies are determined by spreading
over the same to that of the existing general
seats. This measure is the only feasible way.
Nobody is prejudiced. No right of the members
residing in any part of the area of operation of
the Bank has been affected. All members are
entitled to vote for the candidates in all the
nine constituencies. Nobody’s right to contest
form the general candidates is affected as
well.”

wpc No.25624 of 2010 3

The explanation, therefore, is that since the term of the

Managing Committee is to expire on 3.9.2010, there was

no sufficient time to convene a general body and to amend

the bye-laws before the conduct of the election. For the

above reason, it is contended that the Managing

Committee has delimited the constituencies on their own.

3. Adv.P.P.Jacob who appears for the petitioner relies

on Sections 27 and 28 of the Kerala Co-operative Societies

Act, 1969 to contend that the supreme body as far any Co-

operative Society is concerned is the general body thereof.

As per Rule 35A(3)(ii), any area or constituency that is

specified in the bye-laws from which the members are to

be elected is also to be specified in an election notification.

The above rule presupposes that the constituency that is

specified should be delimited by the bye-laws. Rule 5(1)(s)

provides that the conduct of elections to the committee

and other bodies of the Society as provided in the bye-laws

including the right of the members to be elected by

different constituencies and appointment of the Returning

Officer are matters with respect to which the bye-laws of a

Society may make provision for. Therefore, it is the

wpc No.25624 of 2010 4

General Body that is empowered to alter the bye-laws.

4. However, it is pointed out that since Section 28A

of the Act has been introduced, making provision for the

reservation of three seats instead of one for women

candidates, the mandate of the statute had to be complied

with before the elections could be conducted. Therefore,

in the exigencies of the circumstances, the Managing

Committee had done the task of delimitation of the

constituency. A similar issue had arisen for consideration

before a Division Bench of this Court in the decision

reported in Udayakaran v Ahammedkannu (2004(2)

KLT 969 [D.B.]). After considering the question, Cyriac

Joseph, J. (as he then was) has concluded the issue at

page 973 thereof, as follows:

“12. It is not disputed that the authority
competent to make and amend the bye-law is
the General Body of the Society. S.27 of the Act
also says that subject to the provisions of the
Act, the Rules and the bye-laws, the final
authority of a society shall vest in the General
Body of the members. Therefore, in the
absence of necessary provisions in the Act
specifying the authority and the criteria to
determine the ward/constituency for reservation
under S.28A, it is for the General body of a
Society to make necessary provisions in the bye-
laws of the society for the reservation under
S.28A or specifying the authority competent to

wpc No.25624 of 2010 5

determine and laying down the criteria for such
determination. Since the Committee of a Society
is not competent to amend the bye-laws of the
Society, unless specified in the bye-laws the
Committee is not competent to determine the
ward or constituency for reservation under
S.28A or to lay down the criteria for such
determination.

13. Moreover, there is an inherent danger in
conceding such arbitrary power to an existing
committee of the Society to determine the
constituency to be reserved under S.28A. If
such a power is conceded to the Committee,
the existing members of the Committee may
arbitrarily exercise that power to reserve the
constituency/ward to their advantage of their
opponents. Such a situation will not be in the
best interest of the Society or in accordance
with the spirit of the provisions of the Act.”

5. The dictum referred to above apply on all fours to

the facts to the present case. As cautioned by the Division

Bench in paragraph-13 above, to concede the power to

delimit electoral constituencies without amending the bye-

laws to the Managing Committee, usurping the powers of

the General Body would be lead to dangerous

consequences.

6. Adv.T.A.Shaji who appears for the first respondent

has been at considerable strain to defend the action of the

Managing Committee by pointing out that the Committee

had acted in the best interests of all concerned. It is also

wpc No.25624 of 2010 6

pointed out that no prejudice whatsoever has been caused

to any one by the delimitation of the constituencies as

undertaken by the Managing Committee. Even assuming

that the above arguments are true, in the present case the

Managing Committee has delimited the constituencies in

one particular manner. It is not necessary that the General

Body should adopt the very same method of delimitation.

What is the course best suited for the first respondent

Society is to be decided by the General Body which is the

competent body and not by the Managing Committee. The

said right of the General Body cannot be usurped by the

Managing Committee, whatever be the compelling

circumstances.

7. It is further pointed out that though 22

nominations were received, all the nominations except

nine were rejected for one or the other reason and

therefore, there is no contest to the valid nominations that

are now received. Consequently, only the formality of

declaring the results of the election remains, to complete

the election process. For the above reason, it is contended

that the petitioner may be relegated to the remedy of filing

wpc No.25624 of 2010 7

an election petition, if he has any grievance.

8. In the present case, the foundation of the election

itself is bad since the election notification Ext.P2 is liable

to be set aside. There is no point in perpetuating the

illegality by postponing the invalidation of the action.

Since the very foundation of the act is wrong, the

subsequent procedures adopted are also wrong and

cannot be justified on any count.

9. It is further submitted by Adv.T.A.Shaji that since

the term of the Managing Committee is to expire on

3.9.2010, the said Committee may be permitted to

continue in office as administrators. A direction issued by

this Court in an earlier writ petition, W.P.(C) No.19719 of

2005, confirmed by the judgment in Writ Appeal No.1616

of 2005 is relied on in support to the above submission. In

the present case, no orders have been passed appointing

an Administrative Committee for the first respondent since

the term of the Managing Committee is not yet over.

However, Rule 39 is a clear bar against such a course of

action. Sub Rule 2 of Rule 39 specifically stipulates that

all members of the Managing Committee shall vacate their

wpc No.25624 of 2010 8

office on the expiry of the term of the Committee,

irrespective of the date on which they were elected as

members of the Committee. The propriety of permitting

the Managing Committee of a Society, whose term has

expired, to continue as the Administrative Committee of

the Society has been considered by a Division Bench of

this Court in Joint Registrar v Chatha (1999(3) KLT

139). After referring to the various decisions on the point,

this Court has concluded the question in paragraph-4 of

the judgment in the following words:

“This court, in all the decisions referred to
earlier, has only directed the Registrar of
Co-operative Societies to appoint an
Administrator or Administrators in
accordance with the provisions contained in
S.33 of the Kerala Co-operative Societies
Act. We are, therefore, of the opinion that
the judgment of the learned Single Judge, in
so far as it directs the present Board to be
appointed as Administrative Committee till
the election is over, is liable to be set aside.”

In view of the above, the request of the counsel for

the first respondent can only be rejected.

10. For the foregoing reasons, this writ petition is

allowed. Ext.P2 is set aside. It is made clear that a fresh

notification for the conduct of election of the Managing

wpc No.25624 of 2010 9

Committee of the Society may be issued after effecting

necessary amendments to the bye-laws in conformity with

the mandate under Section 28A of the Act. No costs.

K.SURENDRA MOHAN,
JUDGE

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