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.
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W.P.(C) No.25624 of 2010
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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 towpc 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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