IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2871 of 2009(P)
1. T.V.RAVEENDRAN, 57 YEARS, S/O.GOPALAN
... Petitioner
2. K.MUHAMMED ALI, 44 YEARS, S/O.UMMER HAJI
Vs
1. KERALA STATE CO.OP.ELECTION COMMISSION,
... Respondent
2. JOINT REGISTRAR OF CO.OP.SOCIETIES
3. RETURNING OFFICER TO THE ELECTION TO THE
4. MATTANUR CO.OP.RURAL BANK LTD.NO.F.1228,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :SRI.GEORGE POONTHOTTAM
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :21/10/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).No.2871 OF 2009
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Dated this the 21st day of October, 2009
JUDGMENT
1.The State Co-operative Election Commission, hereinafter
referred to as the ‘Commission’, notified election to the
committee of the 4th respondent, a co-operative bank, of
which, the petitioners are members. The petitioners’
nominations were rejected on the ground that either the
proposer or the seconder or both of them lacked the
qualifications mentioned in clause 22 (B) of the byelaws of the
society. Petitioners seek a declaration that no election has
been validly held at all. According to them, 11 out of 24
nominations were rejected and one candidate withdrew,
thereby paving way for the continuance of the majority of the
members of the existing managing committee declared elected
as unopposed. They seek a further declaration that the
amendment brought to the byelaws, as evidenced by Ext.P2,
are void, inoperative and unenforcible since the stipulations
contained therein regarding certain qualifications of the
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candidate’s proposers and seconders are contrary to the
statutory provisions contained in the Kerala Co-operative
Societies Act, 1969, hereinafter referred to as the ‘Act’ and the
Kerala Co-operative Societies Rules, 1969, hereinafter, the
‘Rules’, for short. They seek issuance of a writ of mandamus to
the Commission to notify the election afresh from the stage of
acceptance of nomination papers without insisting on
conditions in Ext.P2, particularly to proposers and seconders,
and to accept all valid nominations on such basis and then, to
hold polling in accordance with law. They also seek a
mandamus directing the Joint Registrar to desist from
permitting the persons who claim elected unopposed, entering
on office.
2.According to the petitioners, the amendment evidenced by
Ext.P2 had been brought about secretly and without notifying
it to the members or publishing it in the notice board of the
society, as required by law. The petitioners state that on
enquiry, they were furnished with the stipulations in the
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amended byelaws which were published on 5.1.2009, the
previous day of publication of the notification.
3.The nomination of the first petitioner was rejected on the
ground that neither the proposer nor the seconder of that
nomination possess the qualification mentioned in clause 22
(B) of the amended byelaws. The nomination of the second
petitioner was rejected on the ground that the seconder to that
nomination did not have such qualification. The plea in that
regard is that on the face of Rule 35A of the Rules, which
provide that every nomination paper shall be signed by two
members, whose names are included in the list of members
and one of the members shall sign the form as proposer and
the other as seconder for the nomination; there cannot be any
further prescription by byelaws as to qualification for being a
proposer of seconder other than the mere fact that they are
persons whose names are included in the list of members.
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4.The 4th respondent society has filed a counter affidavit, sworn
to by the secretary of the society. Ext.R4(a) is the notification
issued by the Commission under Rule 35A of the Rules on
6.1.2009. List of valid nominations was published on
20.1.2009, after considering the nominations submitted on
19.1.2009 and after the time for withdrawal of nomination,
final list was published by the Returning Officer on 21.1.2009
[Ext.R4(b)]. According to the 4th respondent, when this writ
petition was filed on 27.1.2009, the publication of the final list
of candidates had taken place and there was no question of
any further election by polling since there was no contest. The
4th respondent, accordingly, impeaches the sustainability of
this writ petition on the ground that those persons are entitled
to be treated as elected in terms of Ext.R4(b) declaration.
5. It is specifically pleaded by the 4th respondent in para 5 of its
counter affidavit that the amendment to the byelaws cannot be
impeached in writ jurisdiction and, still further, that the
proposal for amending the byelaws to the impugned extent
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was notified for consideration in the General Body of the
society in its meeting scheduled on 25.3.2006. Exts.R4(c) and
R4(d) are the newspaper publications of the notices of that
meeting. It is also pleaded that apart from paper publication,
the proposal for such amendment was communicated to the
members along with the annual report which contained the
proposal for the amendment. Ext.R4(e) is produced to prove
that the amendment was approved by the General Body and
the said modifications to the byelaws were approved by the
Joint Registrar and registered on 2.11.2006. It is pleaded in
the counter affidavit that the minutes of the General Body
Meeting will show the deliberations on the amendment in
question and the approval given by the General Body to that
amendment. It is further specifically contended in para 6 of
the counter affidavit that the General Body of the society, for
the co-operative year 2006-07, was convened after granting
the registration of the impugned amendment as per Ext.R4(e)
and that in the said meeting also, the approval and the
registration of the amendment as aforesaid was brought to the
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notice of the General Body in that meeting held on 30.3.2007.
With those pleadings in para 6, it is pointed out by the 4th
respondent that the amendment is not only in order, but does
not warrant interference by this Court on any count.
6. Section 12 of the Act provides that no amendment to any
byelaws shall be valid unless such amendment has been
registered under the Act. The grant of approval of amendment
under Section 12 of the Act is a statutory function. Going by
the pleadings as noticed above, the uncontroverted statement
of the 4th respondent is that the amendments in question were
brought in on the basis of the decision of the General Body in
the year 2006 and that such amendment has been approved by
the competent statutory authority. That decision, as of now,
stands final. The said amendment to the byelaws, with the
registration, makes the provisions which are incorporated into
the byelaws, binding on all the members of the society.
Therefore, any challenge to those byelaws, if at all, could
necessarily be had only by recourse to statutory proceedings
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against the decision of the Joint Registrar granting approval to
those amendments to the byelaws. The question whether Rule
35A of the Rules exclude such an amendment is left
unanswered in this writ petition because the plea that the
amendment to the byelaws has been made in contravention of
the Act and Rules could be considered in a statutory challenge
to the decision of the Joint Registrar granting registration.
Once the competent authority has granted approval, any
contradiction between the Act, Rules and byelaws would have
to necessarily stand for a scrutiny, first, only by the statutory
authorities and without exhausting those remedies, it is
inappropriate to issue a writ in exercise of authority under
Article 226 of the Constitution, interfering with the byelaws of
a society, which is essentially, a non-statutory material. Not
only that, the quality of the right of a person to be a member of
a co-operative society also does not generate sufficient locus to
insist on the issuance of a writ of certiorari or seek issuance of
a writ of mandamus in relation to the byelaws of a co-operative
society.
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7.The petitioners do not have a case that the rejection of their
nominations is not in terms of the byelaws. Their only plea is
that the byelaws amendment referred in Ext.P2 was a secret
exercise. They attempt to show that Ext.P2 is issued only on
5.1.2009, the date shown therein. This is not only repudiated,
but it is pleaded that such amendment was brought in by the
due process, way back in 2006 and that the said amendment
has been approved by the competent authority. Ext.P2 is
evidently only a further issuance of the true copy of the said
amendment. Therefore, the petitioners are not entitled to
challenge the correctness of the rejection of the nominations
since their nominations have been rejected on the basis of the
byelaws as it stood while the election was notified by the
Commission.
8.Be that as it may, relying on the decision of the Apex Court in
Veena Kumari Tandon v. Neelam Bhalla [(2007) 12 SCC
764], learned counsel for the petitioners argued that the
provisions in the byelaws are contrary to the statutory
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provisions and inconsistency in that regard is a ground to
interfere with the process. As already noted, the byelaws
stand with approval of the statutory authority and parties have
statutory modes to challenge such approvals. I do not find that
as a ground to interfere in the matter in the light of what is
stated in the preceding paragraphs.
For the foregoing reasons, this writ petition is dismissed
without prejudice to the right of the petitioners, if any, to
challenge the amendment of the byelaws, in accordance with
law. No costs.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge
kkb.