IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20751 of 2008(U)
1. M.K.ABU, PRESIDENT,EDATHALA SERVICE
... Petitioner
Vs
1. THE STATE CO-OPERATIVE ELECTION
... Respondent
2. THE JOINT REGISTRAR OF CO-OPERATIVE
3. THE ASST. REGISTRAR OF CO-OPERATIVE
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :15/07/2008
O R D E R
Thottathil B. Radhakrishnan, J.
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W.P.(C)No.20751 of 2008
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Dated this the 15th day of July, 2008.
JUDGMENT
“CR”
Heard the learned counsel for the petitioner
and the learned senior Government Pleader appearing
on behalf of the respondents.
2. On 14-6-2008, the committee of the co-
operative bank represented by the petitioner
resolved fixing 17-8-2008 as the date for election
of the successor committee. That was forwarded to
the first respondent, the State Co-operative
Election Commission along with Ext.P1 letter
stating that the term of the committee in office
would expire on 16-10-2008 and it has been decided
to hold the election on 17-8-2008 within two months
before because, nearly 70% of the members of the
bank belong to Muslim community and that during
September and October, they have to be deeply
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involved in the religious fasting and prayers
during the Ramzan period and therefore to obtain
the co-operation of all the members, the election
is fixed in August, 2008 and since the place of
election, namely, the school, being not available
on any other Sundays, the date is fixed as 17-8-
2008.
3. This writ petition is filed on the
apprehension that the first respondent is not
likely to act on Ext.P1 request and resolution.
Directions are therefore sought for to compel the
first respondent to act in terms of Ext.P2.
4. Learned senior Government Pleader pointed
out that the statutory provision that a resolution
be drawn up by the committee at least 60 days
before the date of expiry of the term of the
committee in office means “within a short time
above 60 days of such expiry of the term of
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office”, as enunciated by this Court in Sugathan v.
Joint Registrar (1993 (1) KLT 927). Though not
particularly specific in that point, the decision
of this Court in Thodupuzha Taluk Co-op.Marketing
Society v. Joint Registrar of Co-op.Societies (2002
(1) KLT 638) was also cited in support of that
proposition, which decision, I may at once notice,
was one rendered also in the backdrop of the fact
that there was an earlier judgment of this Court
inter partis directing that the committee could
continue in office till a particular date.
5. Section 28B of the Kerala Co-operative
Societies Act, 1969, the “Act”, for short, provides
for the constitution of the State Co-operative
Election Commission for the superintendence,
directions and control of the conduct of election
to the committee of the society. The election in
question is governed by Rule 35A of the Kerala Co-
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operative Societies Rules, 1969, hereinafter
referred to as the “Rules”. That Rule provides
the manner in which the election to the members of
the committee shall be conducted by the State Co-
operative Election Commission. Sub-rule (1)
thereof provides, among other things, that the
committee shall meet at least 60 days prior to the
date of expiration of the term and pass the
resolution fixing the date, time and place for the
conduct of the election to the new committee. Rule
35(1) enjoins and empowers the committee to fix the
date for the conduct of the election. Adverting
to Section 28(1) of the Act, it can be noticed that
the committee is constituted by the general body of
the society for the purpose of being entrusted with
the management on the affairs of the society.
It is therefore explicitly clear that the
democratic right of the general body of a co-
operative society to elect its committee is
exercised by having the date of election fixed by
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the committee, which is in office by a democratic
process.
6. The wisdom to fix the date for the
election is of the committee. It is a democratic
process. Unless it is shown to be in violation of
any prescription of law, the same has to be
recognized. This principle is well laced into the
manner in which sub-rules 1, 2 and 4 of Rule 35A
are couched.
7. Applying the law as laid by this Court in
Sugathan’s case (supra), it needs to be understood
that the concept of the period of “at least 60
days” in Rule 35A(1) of the Rules cannot be put in
any straight formula. It has to be understood and
applied in the context in which its application is
called for, on the facts and in the circumstances
of a given case. In Sugathan’s case (supra), this
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Court did not approve the endeavour to prepone the
election by 180 days, which attempt was not
supported by any reasons.
8. In the case in hand, the committee had,
even in Ext.P1 dated 14-6-2008, clearly spelt the
reasons for its decision to schedule the election
on 17-8-2008. Until the date of this writ petition
and even as of now, the first respondent has not
communicated to the writ petitioner society any
decision impeaching the committee’s decision fixing
the date as 17-8-2008 or challenging the reasons
stated for such fixation of the date.
9. There is no specific power conferred on
the State Co-operative Election Commission or any
other authority under the Act, on whose permission
or orders, would depend the date of conduct of the
election. No such power is given under Rule 35A.
The State Co-operative Election Commission is duty
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bound to appoint an Electoral Officer to give
effect to the decision of the committee fixing the
date, time and place for the conduct of the
election to the new committee. This view is
fortified by the decision of this Court in Sudevan
v. Joint Registrar (1992 (2) KLT 18). The said
decision applies notwithstanding the fact that by
subsequent amendments, the powers, including, to
appoint the Returning Officer, have moved on from
the Registrar to the State Co-operative Election
Commission. There is no sustainable reason to
refuse to conduct the election in terms of the
request of the petitioner as contained in Ext.P1
supported by Resolution No.142 taken on 14-6-2008.
For the foregoing reasons, the first respondent
is directed to duty bound to have the election
conducted to the committee of the Edathala Service
Co-operative Bank Ltd.No.430 on 17-8-2008 by taking
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the necessary steps in terms of Rule 35A of the
Rules. It is so directed and the writ petition is
allowed accordingly.
Thottathil B.Radhakrishnan,
sl.15.7. Judge.