JUDGMENT
K. Bhaskaran, J.
1. This writ petition poses some questions of law pertaining to Rules. 26, 28 and 35, Kerala Co-operative Societies Rules, 1969 (the Rules). The petitioners are stated to be two members of the Nanminda Rural Co-operative Housing Society Ltd., No. D 1988 a society registered under the Kerala Co-operative Societies Act, 1969 (the Act), and governed by the said Act and the Rules. The society appears to have been registered in or about 1969 There after the bye-laws of the society had undergone a change as per the amendment in terms of the resolution passed at the general meeting of the society on 7-9-1986 which was duly approved by the Registrar Co-operative Societies.
2. The term of office of the members of the committee of the society was to expire on 31-3-1982, In accordance with the provisions contained in Rule 35(1) of the Rules which lays down that the committee shall meet at least 60 days in advance of the date of expiration of its term and pass a resolution fixing the date, time and place for the conduct of the election of the new committee, and a copy of the resolution shall be sent to the Registrar by registered post within a week, the committee met and decided to have the election to be to held on 28-3-1982. A copy thereof was duly sent to the Registrar within the stipulated period. This writ petition has been filed en 23-3-1982 mainly for the following reliefs:–
(i) The issue of a writ of certiorari or any other appropriate writ, quashing the list of voters as finalised by the 1st respondent, the Returning Officer, in 15-3-1982 in so far as it included the 146 names enrolled by the outgoing Board of Directors on 25-2-1982 and shown as Nos. 1331 to 1476 in the final voters list
(ii) the issue of a writ of mandamus or prohibition restraining respondents 1 to 3 the Returning Officer, Secretary of the Society and the President of the Society, respectively) from proceeding with the election to the Board of Directors of the society in pursuance of Ext. P-2 notice dt. 3-3-1982, purported to have been issued under Rule 35(3)(a) of the rules.
By way of interim reliefs an order of stay of further proceedings pursuant to Ext. P-2 notice, and a direction to respondents 1 to 3 to conduct the election as per Ext. P-2 notice dt, 3-3-1982 on 28-3-1982 after deleting the names of the 146 persons, Nos. 1331 to 1476, enrolled as per Ext. P-3 on 25-2-1982, from the final voters list and on the basis of the list members as it stood prior to 25-2-1982; or, in the alternative, to direct respondents 1 to 3 to conduct the election after keeping a separate ballot box for the deposit of votes of the 146 persons newly enrolled on 25-2-1982 as per Ext. P-3 also was prayed for.
3. On 26-3-1982 in C. M. P. No. 638l of 1982 an interim order was passed by this Court allowing the election to be held on 28-3-1982 as scheduled on condition that the votes cast by the 146 persons, whose right to east votes at that election was under challenge in the writ petition, would be kept in a separate ballot box, and and on condition that the announcement of the results of the election would await further orders from this Court. It is not disputed before me that the election took place on 28-3-1982 in accordance with the directions issued by this Court on 36-3-l982.
4 Daring the pendency of the writ petition C. M. P. No. 5383 of 1683 was filed for treating respondent 7 in the O. P. as being impleaded in the representative capacity of alt those persons, who were likely to be affected by the decision in the writ petition. That was allowed on 9-3-1983 and proof of publication of the notice was produced ‘in Court on 11-4-1983. After the publica-
tion pursuant to the order on C. M. P. No. 5383 of 1983, additional respondents 1.8 and 19 got themselves implcaded in the writ petition.
5. Sri M. K. Ananthakrishnan, the counsel for the petitioners, contended that the electoral roll to the extent it contains the names of 146 persons with membership Nos. 1331 to 1476 purported to have been enrolled on 25-2-1962 is invalid inasmuch as such illegal enrolment does not confer any right to membership or any right to vote in the general meeting on those persons whose names are seen to have been included in the list of members in violation of the provisions contained in Rule 26 of the Rules which reads as follows:–
26. Prohibition on admission of members and transfer of shares on the eve of general, meeting. — (l) No registered society shall admit members or approve the transfer of shares within 30 days prior to the date of issue of notice for the general body meeting.
(2). Any person admitted as member
and any person in whose favour the transfer of shares have been approved in contravention of this rule shall not have the right to membership or the right to vote at the said general meeting or at any meeting held subsequent thereto for the purpose of election.”
6. In this case the meeting of the committee was held on 22-1-1982 and it was resolved at that meeting that the elections to the new committee would be held on 28-3-1982. This decision was taken, by the committee in office in accordance with the provisions contained in Rule 35(1) of the Rules which lays down as follows:–
“35. Procedure regarding conduct of Election to the Committee of Societies.
— The election of the members of the committee of a society shall be conducted in the follwing manner:–
(1) The Committee shall meet at least 60 days in advance of the date of expiration of its term and pass a resolution fixing the date, time and place for the conduct of the election of the new committee. A copy of the resolution shall be sent to the Registrar by registered post within a week.”
Ext, P-2 is the notice of the general body meeting issued by the respondent 1 Returning Officer on 3-3-1982, to the members of the society. In terms of the plain meaning of Rule 26 any person who was admitted to membership within
30 days prior to the date of issue of Ext. P-2 notice would not have the right to membership or the right to vote at the general meeting which was to be held on 28-3-1982 or at any subsequent meeting for the purpose of election. It is on this ground that the petitioners have come to this Court to challenge the correctness of the electoral roll so far as it related to the 144 persons alleged to have been admitted to membership on 25-2-1982 and assigned membership Nos. 1331 to 1476, and to seek the reliefs to which reference has already been made.
7. In my view the legal position in regard to the rights of persons admitted to membership within 30 days prior to the date of issue of notice for the general meeting does not admit of any doubt, as in terms of Rule 26 no person could be admitted to membership during the prohibited period, and any person who is purported to have been so admitted shall not have the right to claim membership or the right to vote at the general meeting.
8. Arguments were, however, advanced by Sri U. K. Ramakrishnan, the counsel for respondents 5, 7, . 11, 12, 16 and 17, Sri C. S. Rajan, the counsel for additional respondent 18, ‘ and Sri O. V. Radhakrishnan, the counsel for additional respondent 19 that it’ could be seen that the framers of the Rules had no intention to put any such inhibition on the right of the society to admit members within that period as, according to them, Rule 35(3)(b) of the Rules enjoins the committee in office to, prepare the list of members as it stood on a day 30 days prior to the day fixed for the poll. Rule 35(3)(b) lays down as follows:–
“The Committee in office shall prepare a list of members qualified to vote at the election in accordance with the provision of the Act, these Rules and Bye-laws as stood on a date 30, days prior to the date fixed for the poll and supply, the same to the Returning Officer. The Returning Officer shall publish copies of the list by affixing them to the Notice Board at the Head Office of the society and its branches, if any, not less than fifteen days prior to the date fixed for election inviting objections, if any, in the matter, within three days of publication. The list shall specify the admission number, name, of the member, name of the Father or Husband and the address
of such member. After considering the objections, if any, the Returning Officer shall publish a final list of eligible voters on the Notice Board of the Society and its branches, if any, not less than ten days prior to the date fixed for the poll, A copy of such list shall be supplied by the society to any member on payment of such fees as may be prescribed by the committee.”
There is absolutely no legal basis for the argument that because Rule 35 (3) (b) requires the committee in office to prepare the list of members qualified to vote at the general meeting as it stood on a day 30 days prior to the date fixed for the poll, the society would be at liberty to enroll members up to that date, and, therefore, those who were enrolled within 30 days prior to the date of issue of the notice for the general meeting also would be entitled to get themselves included in the list of members to be prepared under Rule 35 (3) (b) and also to exercise the right to vote. If that is the position, the provisions contained in Rule 26 of the Rules would have little or no meaning. It is wrong to assume that merely for the reason that Rule 35(3)(b) requires the committee in office to prepare and submit a list of members as it stood on a day 30 days prior to the date fixed for the polling, all the members who are purported to have been enrolled prior to that date, including those who had been so enrolled within 30 days prior to the date of issue of the notice for the general meeting, would have a right to membership and exercise right to vote at the election. It is significant to note that the requirement under Rule 35 (3) (b) is the pre paration of a list of members, qualified to vote at
the election, and there could be no doubt
that those persons who are excluded by the operation of the provisions contained in Rule 26 from claiming right to vote at the election could not claim the right to get themselves included in the list of members to be sent by the committee in office to the Returning Officer.
9. It is not quite clear that the expression used in Rule 35(3)(b) — “as stood on a date 30 days prior to the date fixed for the poll “qualifies” the words “members qualified,” or “the provision of the Act, these Rules and Bye-laws”. In either case it would hot have the effect of removing, the. bar contained
in Rule 26 of the Rules that no register-ed society shall admit members within 30 days prior to the date of issue of notice for the general meeting. By a harmonious construction it could be found that there is no inconsistency between the provisions contained in Rule 26 on the one hand and those contained in Rule 35 (3)(b) on the other. Rule 26 relates to the time limit within which members are to be admitted by the society, and Rule 35(3)(b) relates to the preparation of the list of members; qualified to vote to be supplied to the Returning Officer. It appears to be illogical to conclude that the direction in Rule 35(3)(b) to prepare the list of qualified members as it stood on a particular day would enable the society to go on enrolling members till that day, and that every member purported to have been so enrolled would have the right to membership and the right to vote at the election. In view of the mandatory provision contained in Rule 26 of the Rules the persons enrolled within 30 days prior to the issue of notice for the general meeting would not in any event be entitled to be included in the list of members to be prepared, it is only the members who are qualified to vote who are to be included in the said list, and Sub-rule (2) of Rule 26 is specific that members enrolled during the prohibited period would not be entitled to the right to vote.
10. It was then contended by Sri Rajan and Sri Radhakrishnan that in this particular case respondents 18 and 19 were really members of the society though they were not A class members. According to them they became full-fledged A class members on their having paid the balance amount of Rs.90/-and their names having been entered on the rolls on 25-2-1982. They were members of the society and, therefore, Rule 28 of the Rules would apply to their case. Clause 4(a) of the amended bye-laws of the society provides that the society will have 5800 A Class shares of Rupees 100/- each, and 2000 B class shares of the share value of Rupees 10/- each, thus bringing the total share capital to Rupees 6,00,000/-. It also provides that the share value has to be paid in a lump and that Rs. 10/- has to be paid as admission fee along with the share value
Clause (b) thereof provides that for B
Class members, admission fee at the rate of Rs. I/- per member and Rs. 10/- as share value have to be paid. Their right would be restricted to such things as joining in mortgage deeds, and group insurance. They ate expressly excluded from the exercise of right to contest the elections to the committee or to cast their votes in the general meeting or contest in the elections. Clause 5(b) provides that those who had A class membership with a share of Rs. 10/-under the bye-laws before its amendment would be entitled to have right up to 31-12-1980 to convert their membership to A class paying the balance share amount and that till that date they will be treated as A class members. It is also provided therein that from the date on which the share of Rs. 100/- is taken and A class membership is acquired, the provisions of Clause 5(a) would operate. Clause 5 (a) provides inter alia that if, after accepting the A Class membership, no loan is applied for or granted within three years from the dlate of such membership, he would cease to be a member of the society. There could, be no doubt that a member who opts Rule 5(b) does not obtain the status of an A Class member by complying with the requirements, he would cease to be a member of the society, or at least to be a member of the society who is entitled to vote at the general meeting. It is precisely for that reason respondents 18 and 19 appear to have applied for new membership remitting a sum of Rs. 110/-, in each case Rs. 100/- being the share value and Rs. 10/- being the admission fee. It has also to be noted that the committee in office had allotted them new numbers which clearly indicates that they had ceased to have rights under the original membership which, on their own showing had lapsed, and unless they acquired new membership they had no right whatsoever to call themselves members of the society or to cast votes. Tn the reply affidavit filed on behalf of the petitioners there is an averment that most of the 13 B Class members had withdrawn their share value of Rs. 10/-which was the share value of their membership of the society before the amendment of the byelaws in 1980. The counsel for respondents 18 and 19 submitted that they could not get sufficient time to ascertain the correct factual position, as the reply affidavit was filed only today and, therefore, they are not in a position to assert or deny the correctness
of these allegations so far as respondents 18 and 19 are concerned. I record this submission. All the same, it makes very little difference whether respondents 18 and 19 had withdrawn the money or there was a formal order terminating their membership inasmuch as in terms of clause 5(b) of the byelaws those who fail to pay the share value and the admission fee on or before 31-12-1980 could not be a member of the society. In other words, they will automatically cease to he a member. I am, therefore,’ of the opinion that there is not much substance in the argument of Sri Rajan and Sri Radhakrishnan that respondents 18 and 19 stood on a different footing, and even if they sought to become members within the prohibited period, they have to be treated distinctly in view of Rule 28 of the Rules and in view of the fact that they had earlier been A Class members of the society.
11. Sri Ramakrishnan advanced another contention based on Rule 35(e)(iii) which provides that the Returning Officer shall give all reasonable facilities to the contesting candidates on their proposers, or seconders, as the case may be, to examine all the nomination papers and satisfy themselves that the inclusion of the name of the contesting candidate is valid. It was submitted that respondent 7 was a candidate for the office of the committee member, and the petitioners have no case that they were prevented from examining the nomination papers to satisfy themselves that the inclusion of the name of the contesting candidate was valid. He submitted that after that was over the petitioners are precluded from contending that the 146 persons, and in particular respondent 7 was wrongly Included in the list. He went further and submitted that in spite of this if the Court takes the view that the list was not properly prepared, then the result would be that the entire election would become invalid. In support of this contention reliance was placed on the decision of this Court in Thankappen v. Co-operative Tribunal (1979 Ker LT 528) wherein Namboodiripad J. observed as follows:–
“Sub-rule 3(a) of Rule 35, which alone is relevant for the purpose of this case, may be considered on the basis of the various other Sub-rules dealing with the conduct of the elections. As in the case of the main rule and other Sub-rules,
Sub-rule (3) (a) uses the expression “shall”. The provision says that intimation shall be sent to all members and their full signature in token of having received the notice has to be obtained, or, the notice must be served by post under certificate of posting. The intimation, according to the rule, should contain the important particulars referred to in Clauses (i) to (v) of the Sub-rule, and, those details relate to the number of vacancies, the area or constituency that is specified in the by-laws, the date on which the place at which and the hours between nomination paper shall be filed, the date and hour when the nomination papers will be scrutinised, and, the date on which, the place at which and the hours between which, polling will take place. These, indeed, are the important items in any election. An election to the managing committee of a society is no exception. The intimation mentioned in the rule is vital and any omission to send the intimation, accordance with the rule, cannot but be fatal to the validity of the election.” These observations were made in the context of the issue of notice under Rule 35(3) (a) of the Rules. That practically has no relevance to the position here. In this case, some persons who were not entitled to be admitted to the society, and, therefore, not entitled to exercise right to vote, were wrongly, in contravention of Rule 26 of the Rules, included in the voters list. The challenge came before the polling date, and this Court passed as interim order directing the election to be conducted in such a way that the votes cast by those who became members on 25-2-1982 should be kept in a separate ballot box. The announcement of the results of the election also was subject to further orders from this Court. As a matter of fact, the results have not so far been announced. The question, therefore, is whether the election held on 28-3-1982 has to be declared null and void as contended by Sri Ramakrishnan. I find no valid ground or good reason for doing so. If the votes of those who were not entitled to vote had been kept in the ballot box along with the validly tendered votes, it would have been a different story. Now that because of the timely action on the part of the petitioners in moving this Court for appropriate directions, the only thing to do now is to direct the Returning Officer to ignore the votes cast by those who were not entitled) to
vote, and count the votes cast by others kept in a separate ballot box and declare the results in terms thereof.
12. According to Sri Radhanshnan, the counsel for respondent 19, he could have only paid Rs. 90/- before 31-12-1980 to become a A Class member to exercise right to vote. He also submitted that all that would follow from his failure to pay this share value on or before that date would be that he would be reverted to the position of a B Class member. I am not quite sure that there would be any such metamorphic transformation on account of the failure to pay the share value. There is nothing to suggest in the bye-laws that erstwhile A Class member would become B Class member automatically under the new bye-laws of the society. That option was probably with him, and as long as he did not exercise that, he did not become a B Class member and, therefore, there is no force in this contention also.
13. Under Rule 35(3)(d) there is a provision that no member shall be nominated as a candidate for election to fill a seat on the committee if he is ineligible to vote; does not possess the necessary qualifications, if any, specified in the bye-laws of the society for election as a member of the committee; or is disqualified to be a member under the provisions of the Act and Rules or a member of the committee under the Rules. The question is whether he was rightly included or wrongly included, and having satisfied on a consideration of the relevant rules and the bye-laws there is absolutely no doubt that they were not entitled to be included in the list of members qualified to vote at the election.
14. For the foregoing reasons the writ petition is allowed. The 1st respondent, Returning Officer, is directed to count the votes cast by the members other than those 146 members enrolled on 25-2-1982 and the votes cast by whom are kept in a separate ballot box, and declare the result within seven days from the date of receipt of a copy of this judgment. The names of those 146 persons shall be deleted from the voters list prepared for the purpose of this election.
The writ petition is disposed of with the above directions. There wilt be no order as to costs.