Kerala High Court
K.Ravindran vs State Of Kerala on 17 January, 2020
Bench: C.T.Ravikumar, N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 17TH DAY OF JANUARY 2020 / 27TH POUSHA, 1941
WA.No.1746 OF 2019
AGAINST THE JUDGMENT IN WP(C) 20338/2019(N) OF HIGH COURT
OF KERALA
APPELLANTS/PETITIONERS:
1 K.RAVINDRAN,
MEMBER NO.11775, FORMER MEMBER OF THE MANAGING
COMMITTEE OF THE KEEZHALLUR SERVICE CO-
OPERATIVE BANK LIMITED NO.F1455,
H.O.VAYAMTHODE, KANNUR DISTRICT- 670702,
RESIDING AT SOUPARNIKA, ELAMPARA,
KANNUR DISTRICT.
2 C.RAMACHANDRAN
M.NO.2726, FORMER MEMBER OF THE MANAGING
COMMITTEE OF THE KEEZHALLUR SERVICE CO-
OPERATIVE BANK LIMITED NO.F1455,
H.O.VAYAMTHODE, KANNUR DISTRICT- 670702,
RESIDING AT 'CHANDROTH', VELLIYAMPARAMBA,
MATTANUR COLLEGE P.O., PIN- 670702,
KANNUR DISTRICT.
3 NISAM C.
MEMBER NO.5029, FORMER MEMBER OF THE MANAGING
COMMITTEE OF THE KEEZHALLUR SERVICE CO-
OPERATIVE BANK LIMITED NO.F1455,
H.O.VAYAMTHODE, KANNUR DISTRICT- 670702,
RESIDING AT 'SAMEERAS', EDAYANNUR,
EDAYANNUR P.O., KANNUR DISTRICT.
W.A.Nos.1746 & 2082/2019 2
4 V.MUSTHAFA
MEMBER NO.4474, FORMER MEMBER OF THE MANAGING
COMMITTEE OF THE KEEZHALLUR SERVICE CO-
OPERATIVE BANK LIMITED NO.F1455,
H.O.VAYAMTHODE, KANNUR DISTRICT- 670702,
RESIDING AT N.P.P.HOUSE, ELAMPARA,
KANNUR DISTRICT.
5 PAVITHRAN.P.K.
M. NO.1819, FORMER MEMBER OF THE MANAGING
COMMITTEE OF THE KEEZHALLUR SERVICE CO-
OPERATIVE BANK LIMITED NO.F1455,
H.O.VAYAMTHODE, KANNUR DISTRICT- 670702,
RESIDING AT 'MANIYERI', KOTHERY,
MATTANNUR.P.O., KANNUR DISTRICT.
6 REMANI P.
MEMBER NO.2873, FORMER MEMBER OF THE MANAGING
COMMITTEE OF THE KEEZHALLUR SERVICE CO-
OPERATIVE BANK LIMITED NO.F1455,
H.O.VAYAMTHODE, KANNUR DISTRICT- 670702,
RESIDING AT 'KARIYIL HOUSE', ELAMPARA,
ELAMPARA P.O., KANNUR DISTRICT.
7 PUSHPAJA K.
M.NO.3752, FORMER MEMBER OF THE MANAGING
COMMITTEE OF THE KEEZHALLUR SERVICE CO-
OPERATIVE BANK LIMITED NO.F1455,
H.O.VAYAMTHODE, KANNUR DISTRICT- 670702,
RESIDING AT 'SREE NILAYAM', KUMMANAM,
ELAMPARA P.O., KANNUR DISTRICT.
8 GEETHA M.
MEMBER NO.4434, FORMER MEMBER OF THE MANAGING
COMMITTEE OF THE KEEZHALLUR SERVICE CO-
OPERATIVE BANK LIMITED NO.F1455,
H.O.VAYAMTHODE, KANNUR DISTRICT- 670702,
RESIDING AT 'KUNITHALA', ELAMPARA,
ELAMPARA P.O., KANNUR DISTRICT.
W.A.Nos.1746 & 2082/2019 3
9 M.RATHNAKUMAR
M.NO.9101, FORMER MEMBER OF THE MANAGING
COMMITTEE OF THE KEEZHALLUR SERVICE CO-
OPERATIVE BANK LIMITED NO.F1455,
H.O.VAYAMTHODE, KANNUR DISTRICT- 670702,
RESIDING AT 'RADHIKA', CHALODE, EDAYANNUR P.O.,
KANNUR DISTRICT.
BY ADVS.
SRI.K.RAMAKUMAR (SR.)
SRI.T.RAMPRASAD UNNI
SRI.S.M.PRASANTH
SRI.G.RENJITH
SMT.R.S.ASWINI SANKAR
SRI.T.H.ARAVIND
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF CO-OPERATION,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM- 695001.
2 THE STATE CO-OPERATIVE ELECTION COMMISSION,
THIRUVANANTHAPURAM- 695001.
3 THE JOINT REGISTRAR OF CO-
OPERATIVE SOCIETIES (GENERAL),
KANNUR-670001.
4 KEEZHALLUR SERVICE CO-OPERATIVE
BANK LIMITED NO.F1455,
H.O.VAYAMTHODE, KANNUR DISTRICT- 670702,
REPRESENTED BY ITS SECRETARY.
5 THE PART-TIME ADMINISTRATOR
OF THE KEEZHALLUR SERVICE CO-OPERATIVE BANK
LIMITED NO.F1455,
H.O.ELAMPARA, KANNUR DISTRICT- 670595 (THE
ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL), KUTHUPARAMBA, KANNUR DISTRICT).
W.A.Nos.1746 & 2082/2019 4
*6 V.R.BHASKARAN,
AGED 70 YEARS,
S/O.ANANTHAN NAMBIAR,
FORMER PRESIDENT,
KEEZHALLUR SERVICE CO-OPERATIVE BANK
LTD.NO.F.1455,ELAMPARA P.O.,
KANNUR DISTRICT.
*(IS IMPLEADED AS ADDL.R6 AS PER ORDER DATED
18.12.2019 IN I.A.2/2018 IN WA 1746/2019)
R2 BY ADV. SRI.R.LAKSHMI NARAYAN
R4 BY ADV. SRI.P.C.SASIDHARAN
R5 BY ADV. P.C.SASIDHARAN(B/O)
R BY ADV. SRI.BALU TOM
SPL.G.P- SRI.MOHAMMED HASHIM
ADV.SMT.SANJEETHA K.A-R6
ADV.SRI.RAMESH CHANDER (SR.)-R6
ADV.SRI.BEJOY JOSEPH-R6
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.01.2020,
ALONG WITH WA.2082/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.A.Nos.1746 & 2082/2019 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 17TH DAY OF JANUARY 2020 / 27TH POUSHA, 1941
WA.No.2082 OF 2019
AGAINST THE JUDGMENT IN WP(C) 19782/2019(W) OF HIGH COURT
OF KERALA
APPELLANT/PETITIONER:
KUNIYIL SREEJA,
D/O. SREEDHARAN, AVITTAM, KANADU,EDAYANNUR P.O.
KANNUR DISTRICT-670695.
BY ADVS.
SRI.T.R.HARIKUMAR
SRI.ARJUN RAGHAVAN
SRI.ADITHYA RAJEEV
RESPONDENTS/RESPONDENTS:
1 THE STATE CO-OPERATIVE ELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY,
THIRUVANANTHAPURAM-695001.
2 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES
(GENERAL),KANNUR, KANNUR DISTRICT, PIN-670001.
3 THE MANAGING COMMITTEE OF THE KEEZHALLOOR
SERVICE CO-OPERATIVE BANK LTD. NO.F1455,
REPRESENTED BY ITS PRESIDENT, ELAMPARA P.O.,
KANNUR DISTRICT, PIN-670595.
W.A.Nos.1746 & 2082/2019 6
4 THE KEEZHALLOOR SERVICE CO-OPERATIVE BANK LTD.
NO.F1455,REPRESENTED BY ITS SECRETARY,
ELAMPARA P.O., KANNUR DISTRICT, PIN-670595.
5 P.C. VINODAN, MEMBER NO.5855,
KEEZHALLOOR SERVICE CO-OPERATIVE BANK LTD.
NO.F1455, H.O. ELAMPARA, KANNUR DISTRICT,
PIN-670595, RESIDING AT PULHUKKUDI CHALIL,
KANAD,EDAYANNUR P.O.
BY ADVS.
SPL.G.P- SRI.MOHAMMED HASHIM
SRI.LAKSHMI NARARAYAN, SC- R1
SRI.P.C.SASIDHARAN-R4,R5
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.01.2020,
ALONG WITH WA.1746/2019, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.A.Nos.1746 & 2082/2019 7
JUDGMENT
Ravikumar, J.
These appeals arise from a common judgment dated 01.08.2019 in W.P.(C) Nos.20338/2019 and 19782/2019. The former writ appeal arises from the judgment in W.P.(C) No.20338/2019 and the latter appeal arises from W.P.(C) No.19782/2019. The petitioners therein are the appellants herein. The appellants in the former appeal were members of the previous Managing Committee of Keezhallur Service Co-operative Bank Limited No.F 1455 (for short, 'the Bank'), the term of which had expired on 20.07.2019. It is a primary credit society. Prior to the expiry of the term, the said Committee took a resolution to conduct election to the management of the society sixty days ahead of expiry of its term, in accordance with the mandate under Rule 35A(1) of the Kerala Co-operative Societies Rules (for brevity, 'the KCS Rules'). On its receipt along with the recommendation of the Joint Registrar, viz., the 3rd respondent herein the State Co-operative Election Commission issued Ext.P1 notification dated 14.05.2019 W.A.Nos.1746 & 2082/2019 8 proposing to conduct election to the Managing Committee of the society, on 07.07.2019. One of the members of the said Society by name Sri.V.R Bhaskaran challenged the said notification dated 14.05.2019 before this Court by filing W.P.(C) No.16209/2019. The question whether Election Commission was correct in reducing the requirement to have an encumbrance free fixed deposit of Rs.50,000/- or above to earn eligibility for candidacy under the "fixed depositors constituency" was considered based on Section 28 of the Kerala Co-operative Societies Act (for short, 'the KCS Act') and also the bye- laws of the Bank. As per the resolution, two seats were reserved under the depositors' constituency for members having an encumbrance free deposit of Rs.50,000/- and above. However, the Election Commission issued Ext.P1 notification reserving two seats for members having a deposit of Rs.10,000/- and above under that constituency. Essentially, the contention raised therein was that Ext.P1 notification was contrary to the bye-laws which provides for reservation of two seats for members having a deposit of Rs.50,000/- and above and therefore, it is liable to be set aside. Ext.P2 judgment W.A.Nos.1746 & 2082/2019 9 would reveal that after hearing the learned counsel appearing for the parties, this Court allowed the writ petition and set aside Ext.P1 notification with a direction to the Election Commission to stop all proceedings pursuant to the said notification dated 14.05.2019 and to await fresh resolution from the 5th respondent for conduct of fresh election to its Managing Committee. It was further ordered thereunder:-
"Needless to say, the notification pursuant to such fresh resolution will be issued by the State Co- operative Election Commission, strictly in terms of the bye-laws of the Society, the mandate of Section 28 of the KCS Act and adverting to the observations of this Court."
In this context, it is also relevant to note that the aforequoted text from Ext.P2 would reveal that direction was issued to the Election Commission to advert to the observations of this Court in Ext.P2 judgment also while issuing the fresh notification.
2. In terms of the mandate under Ext.P2 judgment, the W.A.Nos.1746 & 2082/2019 10 previous Managing Committee of the Bank, while in office, again passed a resolution on 3.7.2019 proposing to conduct election on 1.9.2019. It is only thereafter, to be precise, only on 19.7.2019 that the term of the said committee had expired. As can be seen from Ext.P2 judgment, the Election Commission was also required to issue fresh notification pursuant to the receipt of fresh resolution strictly in terms of the bye-laws of the Society, the mandate of Section 28 of the KCS Act and adverting to the observations of this Court in Ext.P2 judgment. The Election Commission, on obtaining fresh resolution dated 3.7.2019, considered the question of issuing fresh election notification, but found that the previous Managing Committee was incompetent to pass resolution on 3.7.2019 for conducting election as its term was due to expire on 19.7.2019 and hence declined to act upon the same on the ground of it being not in conformity with the provisions under Rule 35A(1) of the KCS Rules. Violation of the said provision was found as at the point of time of passing the said resolution, at least 60 days time did not exist for expiration of the term of the committee. After the expiry of the term of the committee, the W.A.Nos.1746 & 2082/2019 11 Joint Registrar appointed a Part-time Administrator for the Bank on 19.7.2019. It is aggrieved by the appointment of the Part-time Administrator instead of an Administrative Committee and seeking for its redressal and such other reliefs that W.P.(C) No.20338 of 2019 was filed by the appellants in the former appeal. They filed the said writ petition seeking the following reliefs:-
i) To issue a Writ of Mandamus commanding the respondents to substitute the existing Part-time Administrator with an administrative committee consisting of the members of last managing committee in office in implementation of the orders of this Hon'ble Court Ext.P2.
ii) To issue a Writ of Mandamus or any other orders or directions to the respondents to ensure that the election is conducted strictly in terms of the resolution Ext.P1 passed by the then managing committee holding office on the date of passing of resolution.
iii) To call for the records leading upto Ext.P3 and quash the same by the issuance of a Writ of Certiorari or any other appropriate Writ, order or direction.
3. W.P.(C).No.19782/2019 was filed by a member of the society seeking mainly the following reliefs:-
W.A.Nos.1746 & 2082/2019 12
i) to issue a writ of mandamus or any other appropriate writ order or direction, directing the 1st respondent to issue a notification to conduct the election to the managing committee of the 4th respondent society on 01/09/2019;
ii) to issue a writ of mandamus or any other appropriate writ order or direction, directing the 2nd respondent to issue a direction constituting an administrative committee from the members of the existing managing committee.
4. The learned Single Judge heard those writ petitions jointly and passed the impugned judgment on 1.8.2019. It was held therein that the question whether election being conducted based on resolution dated 3.7.2019 adopted by the earlier Managing Committee would not be necessary at that stage in view of the rigour of Rules 35A(1) and 39(3) of the KCS Rules. Consequently, the learned Single Judge directed the Part-time Administrator to adopt a resolution on or before 9.8.2019 and to forward the same to the Election Commission. The Election Commission was in turn directed, on receipt of such resolution, to conduct election on or before 6.10.2019. It was also made clear that the time fixed as per the judgment would not be extended. It is aggrieved by the judgment on the aforesaid lines that W.A.Nos.1746 & 2082/2019 13 the writ appeals have been filed.
5. Heard the learned Senior Counsel Sri.K.Ramakumar appearing for the appellants in W.A.No.1746 of 2019, Sri.T.R.Harikumar, the learned counsel for the appellant in W.A.No.2082 of 2019, Sri.R. Lakshmi Narayan, the learned standing counsel for Election Commission, the learned Special Government Pleader Sri. Mohammed Hashim, Sri.P.C.Sasidharan, the learned counsel for the Part-time Administrator and Sri.Ramesh Chander for Keezhallur Service Co-operative Bank.
6. Before dealing with the contentions, it is only appropriate to refer to the interim order dated 4.10.2019 passed by us in the above appeals. On 5.8.2019, the Part-time Administrator passed a resolution to conduct election on 5.10.2019. Honouring the directions in the impugned judgment, the Election Commission issued Annexure R6(b) notification, marked as such in the latter appeal, on 7.8.2019 to conduct election to the Managing Committee of the Bank on 5.10.2019. As per the interim order dated 4.10.2019, we permitted W.A.Nos.1746 & 2082/2019 14 conduct of election as scheduled under Annexure R6(b) notification. At the same time, virtually, taking note of the fact that for conducting election based on Ext.P1 notification on 7.7.2019 a final voters' list was published and subsequent to Annexure R6(b) notification, 405 persons, who were enrolled by the Part-time Administrator, were also included in voters' list for conducting election on 5.10.2019, we have issued a further direction that those persons who were actually entitled to cast votes if election was conducted on 7.7.2019 based on the final electoral roll prepared therefor and persons who were included additionally thereafter, shall be permitted to cast their votes in separate ballot boxes. The Returning Officer was further directed not to declare the result of the election without obtaining orders from this Court and also to keep the ballot boxes in safe custody. In such circumstances, after the polling, the Part-time Administrator has filed I.A.No.5 of 2019 seeking permission to count the votes and also to declare the result of the election conducted on 5.10.2019. In the affidavit accompanying the said application, it is stated that in the election held on 5.10.2019, a total of 837 members cast their votes. W.A.Nos.1746 & 2082/2019 15 Annexure R5(a) is the report in that regard prepared by the Returning Officer for onward transmission to the Election Commission. It is produced along with the affidavit. It is also stated therein that subsequent to the publication of the final voters' list for conducting election on 7.7.2019 viz., Annexure R5(b), persons who remitted share value by 3.8.2019 were also included in the voters' list published on 18.9.2019 as in between 3.8.2019 and 5.10.2019, the date on which election was to be conducted, more than 60 days were available. Their list is produced as Annexure R5(c). In fact, it is in respect of those persons that we have issued direction to the Returning Officer to permit such persons to cast their votes in separate ballot box as the question to be decided is whether the Part-time Administrator who was appointed on 19.7.2019 and was bound to adopt an election resolution on or before 9.8.2019 to enable conduct of election to the committee on or before 6.10.2019 was justified or legally empowered to enroll members? In short, the question whether votes cast by such additionally included persons would depend upon the answer to the aforesaid question. Evidently, in tune with the said direction, votes W.A.Nos.1746 & 2082/2019 16 cast by such persons were kept in a separate ballot box. Ergo, if we are upholding the election held on 5.10.2019, the next question is whether the votes cast by persons who were originally included in the final voters' list based on which election was proposed to be conducted on 7.7.2019 alone need be counted or the votes cast by the subsequently enrolled persons viz., those included in Annexure R5(c) and included in the voters' list published on 18.9.2019 were also to be counted, for the purpose of declaration of result. We will consider that question a little later.
7. By now, the question of conducting election on 1.9.2019 based on the resolution passed by the erstwhile committee on 3.7.2019 has become an absolute impossibility, as rightly contended by the appellants, this being an oft-repeatable situation, the question whether the Election Commission was justified in declining to act upon a resolution passed by a committee lacking left over period of less than 60 days for expiry of term, after passing an unfruitful resolution within the period prescribed under Rule 35A(1) of KCS Rules is a W.A.Nos.1746 & 2082/2019 17 matter to be decided as it is of seminal importance. This has also become necessary in view of the observation made by the learned Single Judge in the impugned judgment, on that issue as hereunder:-
"14. That said, the question of elections being conducted on the basis of the resolution, dated 03.07.2019, adopted by the earlier Managing Committee, would also not be necessary at this stage because, going by the rigour of Rules 35A(1) and 39(3) of the KCS Rules, it is not statutorily possible to conduct elections or to direct the Election Commission to do so, based on it, even if I am to hold that things have come to such a pass solely on account of the mistake committed by the Election Commission when the earlier election notification was published by them. "
8. We have already taken note of the fact that the said resolution was passed on 3.7.2019 by the previous Managing Committee before the expiry of its term, pursuant to a direction in that regard by this Court as per Ext.P2 judgment in W.P.(C).No.16209/2019. Ext.P2 judgment was rendered on 16.6.2019 when only 33 days were remaining for expiration of the term of the committee. The term of the said committee had expired only on 19.7.2019. True that Ext.P2 W.A.Nos.1746 & 2082/2019 18 judgment would not reveal advancement of any argument pointedly based on Rule 35A(1) of the KCS Rules before the Writ Court, at the time of hearing of that writ petition. But, the fact is that the Writ Court was fully aware of the fact that the said committee had earlier passed an election resolution, in conformity with Rule 35A(1) and the situation necessitating to pass a subsequent resolution occurred only due to the mistake committed by the Election Commission while issuing election notification based on the said original resolution. The previous committee pursuant to Ext.P2 judgment, met for passing the said resolution only when one month and 3 days were remaining for expiry of its term. It passed the resolution dated 3.7.2019 proposing to conduct election to the Managing Committee on 1.9.2019. As stated earlier, while considering the question of issuing fresh notification for conducting election to the Managing Committee of the Bank pursuant to Ext.P2 judgment the Election Commission found that the resolution dated 3.7.2019 was passed by the Committee on a date that falls within 60 days for expiration of its term. It is assigning the said reason that the Election Commission had declined to act upon W.A.Nos.1746 & 2082/2019 19 the resolution dated 3.7.2019. The correctness or otherwise of the said resolution dated 3.7.2019 assigning such a reason has to be considered not only with reference to Rule 35A(1) of KCS Rules but also by bearing in mind the fact that originally the said committee had passed resolution to conduct election on 7.7.2019 well within the time specifically provided under Rule 35A(1) of the KCS Rules and various other allied and relevant aspects.
9. The fact that the original resolution to conduct election on 7.7.2019 was passed by the previous Managing Committee in the meeting held in tune with the provisions under Rule 35A(1) of the KCS Rules is not in dispute. That resolution along with the recommendation of the Joint Registrar was forwarded to the Election Commission based on which election notification was issued on 14.5.2019 to conduct election on 7.7.2019, is also not in dispute. Election could not be conducted based on resolution as Ext.P1 notification issued by the Election Commission was successfully challenged in W.P.(C).No.16209 of 2019, evident from Ext.P2 W.A.Nos.1746 & 2082/2019 20 judgment. Owing to the mistake crept as relates depositors' constituency viz., for violation of the specific provisions under Section 28 (1C) of the KCS Act, the very election notification itself was set aside. A bare perusal of the Ext.P2 judgment would reveal that after taking note of the violation of Section 28 of the KCS Act, while issuing Ext.P1 notification dated 14.5.2019 committed by the Election Commission, this Court directed the 5 th respondent therein viz., the Bank to pass fresh resolution for conducting election to the Managing Committee. There can be no doubt that such a resolution can be passed only by the Committee, if a Committee is in existence. The indisputable fact is that at that point of time, the Bank was being administered by the previous Managing Committee and not by an Administrator and the then existing Managing Committee was left with one month and 3 days for expiration of its term. In such circumstances, even if there was an error or a mistake, the Election Commission could not have assumed on itself the power to correct it. In that context, it is worthwhile to refer to the decision of the Hon'ble Apex Court in S.Nagaraj and others v. State of Karnataka and W.A.Nos.1746 & 2082/2019 21 others reported in 1993 Supp.(4) SCC 595. Even if an order had been improperly obtained, the authorities could not assume on themselves the role of substituting it expressly or impliedly and in case of any doubt or ambiguity, should have been removed by moving the Court which passed the order, it was held therein. According to us, even if any party to a decision got grievance that the judgment is erroneous or against a provision of law it would not enable that party legally, to correct the seeming error by itself. We are of the view in the light of the decision in Nagaraj's case and taking into account the fact that a specific direction was issued to the 5 th respondent Bank to pass a resolution as per Ext.P2 judgment if the Election Commission was doubting the competency of the then existing Managing Committee to pass an election resolution in view of Rule 35A(1) of the KCS Rules it ought to have approached this Court appropriately to remove the doubt or ambiguity instead of resolving it by itself.
10. As can be seen from Rule 35A(1) of the KCS Rules, the power to pass such a resolution to conduct election to the committee W.A.Nos.1746 & 2082/2019 22 vests with the existing Managing Committee of the society concerned subject to the relevant provision and in the case on hand, the committee in question that demitted office on expiry of the term passed the resolution to conduct election on 1.9.2019, on 3.7.2019 well before expiration of its term on 19.7.2019. It is not a case where such a direction was given under Ext.P2 without hearing the Election Commission. As a matter of fact, it is a case where as per Ext.P2 judgment the Election Commission, which was the 2nd respondent therein, was directed to cease all proceedings pursuant to the notification dated 14.5.2019 and await the fresh resolution to be passed by the 4th respondent society, which was the 5th respondent therein, and then to issue fresh notification on receipt of such resolution. The indisputable fact is that when Ext.P2 judgment was passed on 16.6.2019, the lastly elected committee was in office and it had a remaining term of 33 days. In this context, it is also relevant to note that the direction in Ext.P2 judgment to the Election Commission was to issue fresh notification on receipt of fresh resolution in terms of the bye-laws of the society, in terms of mandate of Section 28 of W.A.Nos.1746 & 2082/2019 23 the KCS Act and adverting to the observations of this Court in the said judgment. The direction in that regard contained in Ext.P2 judgment would thus reveal that the Election Commission was bound to act upon the said resolution and liberty was granted to the Election Commission only to issue notification in terms of the aforementioned direction.
11. The question is when once such a resolution was passed by an outgoing committee of a society to conduct election to the Managing Committee strictly in terms of Rule 35A(1) of the KCS Rules, but election could not be conducted based on same even after issuance of election notification pursuant thereto, by the Election Commission, for reasons not at all attributable to the resolution and in that regard to the Managing Committee whether the Election Commission could decline to act upon the subsequent resolution passed by the same committee solely on the ground that 60 days time did not exist for expiration of the term of that committee when the subsequent resolution was passed? In the case on hand, W.A.Nos.1746 & 2082/2019 24 when the lastly elected committee passed the subsequent resolution, only 16 days were left for the expiration of its term. To consider the aforesaid question, it is only appropriate to refer to Rule 35A(1) of the KCS Rules and it reads thus:-
35A. Procedure regarding conduct of election to the committee of Societies by the State Co- operative Election Commission- The election of the members to the committee of Societies by the State Co-operative Election Commission shall be conducted in the following manner.
(1) The committee shall meet at least 60 days prior to the date of expiration of its term and pass a resolution fixing the date, time and place for the conduct of the election to the new committee. A copy of such resolution shall be sent to the State Co-operative Election Commission by registered post or through electronic media within a week.
(emphasis added)
12. Before dealing with that question in detail, it is only apposite to consider another relevant aspect. Section 33 of the KCS Act provides for appointment of an Administrator or an Administrative Committee in the situations mentioned therein and by following the procedures prescribed thereunder, to manage the affairs W.A.Nos.1746 & 2082/2019 25 of the society. However, the scheme of the KCS Act and KCS Rules would invariably suggest that a Co-operative society is expected to function in a democratic manner through an elected Managing Committee and section 33 is incorporated only to avoid administrative stalemate in the society and to ensure proper management of the affairs of a society only during the period of non-existence of an elected Managing Committee for anyone of the reasons mentioned thereunder. The phraseology of the provisions under Rule 35A and sub-rule (1) thereof such as 'the election of members to the committee of societies', 'shall be conducted' and 'the Managing Committee of societies shall meet at least 60 days prior to the date of expiration of its term and pass a resolution fixing the date, time and place for the conduct of election to the new committee' would reflect the intention of the legislature to have continuation of management in societies by democratically elected Managing Committee and to avoid management through an Administrator or an Administrative Committee except in extremely compelling circumstances, mentioned under section 33. Our view is fortified by the decision of this Court in W.A.Nos.1746 & 2082/2019 26 P.K.Karunan Nair v. Joint Registrar and others reported in 1992 (2) KLJ 19 wherein it was held that the purpose of amendment of Rule 35(A) is to ensure continuity in office of an elected body. True that Rule 35 was omitted by SRO 733/2014 with effect from 26.11.2014. But, it is a fact that the phraseology of Rule 35 and sub- rule (1) thereof are almost identical to that of Rule 35A and sub-rule (1) thereof. Sub-rule 35A was inserted by SRO 125/2001 published in Kerala Gazette Extra ordinary No.46 dated 12.2.2001 after the incorporation of Section 28B in KCS Act as per Act No.1 of 2000 and given effect from 7.3.2001. We have already extracted Rule 35A and sub-rule(1) thereof. To enable a comparison of the provision, we will extract Rule 35 and sub-rule (1) thereof and they read as follows:-
35. Procedure regarding conduct of election to the committee of Societies:-The election of the members of the committee of a Society which does not come under sub (1) section 28(B) of the Act shall be conducted in the following 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 W.A.Nos.1746 & 2082/2019 27 new committee. A copy of the resolution shall be sent to the Registrar by registered post within a week.
(2) The Registrar may on receipt of such resolution appoint a Returning Officer for the conduct of election. The Returning Officer so appointed may be given such remuneration as may be fixed by the Registrar. The Returning Officer shall take necessary steps for the conduct of election and the committee shall render all necessary help to the Returning Officer for the constitution of the committee.
[Explanation--For the purpose of sub-rules (1) and (2) the expression 'Registrar' means, (a) in the case of Societies having State-wide jurisdiction, the Registrar of Co-operative Societies; (b) in the case of Societies the jurisdiction of which is confined to one district and in the case of Primary Societies, the jurisdiction of which exceeds one circle, the Joint Registrar of the District concerned; and (c) in the case of primary societies the jurisdiction of which does not exceed one circle the Assistant Registrar of the Circle concerned]
13. As already stated, in P.K.Karunan Nair's case (supra) rendered in regard to the application of S.35(1), it was held by this Court that the period of 60 days provided therein is not mandatory and any resolution taken within that period is also liable to be acted upon W.A.Nos.1746 & 2082/2019 28 and that the purpose and amendment of the said rule is to ensure continuity in office of an elected body. Further, it was held therein that the prescription of the time of 60 days in Rule 35(1) is not mandatory, though passing the resolution is mandatory. Virtually, the same view was taken by another Division Bench of this Court in the decision in George Abraham v. Asst. Registrar of Co-operative Societies reported in 1996 (1) KLT 669. It was held therein that a resolution passed within 60 days of the expiration of the term of the Committee, for holding election could not be considered as invalid and 60 days period mentioned under Rule 35(1) of the KCS Rules could only be treated as directive and could not be taken as a mandatory provision.
14. A bare perusal of the provisions under Rule 35A, as a whole, would reveal that it elaborately provides the entire procedures for election including mandatory provision of passing a resolution till the declaration of the election. But at the same time, the question is whether for some reasons election could not be conducted based on W.A.Nos.1746 & 2082/2019 29 the original resolution passed by the committee in a meeting held in conformity with Rule 35A(1), but not attributable to the said resolution or any flaw on the part of the committee the said committee should or could again pass a fresh resolution, if it is still in office?
The next question is even in such case, adherence to 60 days period as mentioned in Rule 35A(1) in the matter of holding of meeting should be insisted, as has been held by the Election Commission when there is no specific provision under the KCS Act or the KCS Rules dealing with such a situation? In other words, even if 60 days time was not left with the committee, whether such a Managing Committee could pass another resolution for conducting election while in office if passing of another resolution is legally required? In the absence of any specific provision dealing with such situation, the question is whether the Election Commission was right in declining to act upon the subsequent resolution passed on 3.7.2019, by the committee to conduct election on 1.9.2019. On 3.7.2019, admittedly, the previous committee was very much in office and its term had expired only on 19.7.2019. The situation which made this Court to interfere with the W.A.Nos.1746 & 2082/2019 30 first election notification published by the Election Commission viz., Ext.P1 notification dated 14.5.2019, is a mistake committed by the Election Commission as relates depositors' constituency, as can be seen from Ext.P2 judgment. We may hasten to add at this juncture that none of the parties including the Election Commission challenged Ext.P2 judgment despite the quashment of Ext.P1 notification and issuance of consequential directions in the nature, referred to hereinbefore. That apart, the fact is that the parties have virtually attempted to comply with the directions in Ext.P2 judgment. It is in that regard that the previous committee passed resolution on 3.7.2019 before expiration of its term. It is relevant to note that going by the decision of this Court in Bhaskaran v. Jose Joseph (2004) (1) KLT
91) even issuance of a notice under section 32(1) seeking objections, if any, for removing an existing committee and for appointing in its place one Administrator or an Administrative Committee, to manage the affairs of the State, would not disentitle the said existing committee to exercise the rights or power under the KCS Act or the KCS Rules and to pass a resolution under Rule 35A(1) of the KCS W.A.Nos.1746 & 2082/2019 31 Rules. In the statement filed by the Election Commission, another reason has also been assigned for not acting upon the resolution dated 3.7.2019. It is stated that if the said resolution dated 3.7.2019 was accepted and acted upon, it would have resulted in violation of Rule 39(3) of the KCS Rules. In the statement dated 14.9.2019, what is stated is that the subsequent resolution was adopted on 3.7.2019 by the Managing Committee whose term was to expire on 20.7.2019 i.e., just 16 days prior to the expiration of the term and therefore, it was hit by the rigour of Rule 35A as well as Rule 39(3) of the KCS Rules. The learned counsel appearing for the Election Commission has also submitted that in view of phraseology of the provision under Rule 39(3) of the KCS Rules, election of all the members of the committee should have been held before the expiration of the term of the existing committee viz., before 20.7.2019 (sic. 19.7.2019), the date on which the term of the said committee had expired. When that be the mandate under Rule 39(3), a resolution proposing election to be conducted on 1.9.2019 viz., after the date of expiration of the existing committee could not be acted upon, it is further submitted. A careful scrutiny of W.A.Nos.1746 & 2082/2019 32 Rule 39(3) would reveal that it does not actually deal with the constitution of a new committee under Section 28 of the KCS Act owing to the expiration of the term of the existing committee. In order to understand the actual scope and purport of Rule 39(3), it is worth to extract Rule 39. It reads thus:-
39. Election and term of the members of the Committee--(1) The bye-laws of every society shall provide for the term of its Committee.
(2)Notwithstanding anything contained in the bye-laws, for the purpose of calculating the term of a Committee, year shall be taken to be a period of twelve months from the date of election to the Committee. All the members of the Committee (including those elected in casual vacancies) whether representing societies or individuals shall vacate their office on the expiry of the term of the Committee irrespective of the date on which they were elected as member of the Committee.
(3) The election of all the members of the Committee shall be held before the expiry of the term of office of the existing Committee.
15. Sub-rule (1) of Rule 39 virtually mandates that the bye-laws of every society shall provide for the term of its committee. Sub-rule (2) of Rule 39 is a non-obstante clause and amendment was brought to W.A.Nos.1746 & 2082/2019 33 it as per SRO No.733/2014 dated 26.11.2014 to avoid confusion in the matter of determination of the term of the committee of any particular society. Now, the term of the committee of a society has to be calculated taking an year as twelve months from the date of election to the committee. The latter limb of sub-rule (2) makes it clear that all the members of the committee, including those elected in casual vacancies, shall vacate their office on the expiry of the term of the committee irrespective of the date on which they were elected as members of the committee. Thus, it is obvious that, even a member elected against a casual vacancy in the committee, irrespective of the date of his election, he should vacate his office along with all the others, on the expiration of the term of the committee. Obviously, the provision under Rule 39(2) is very clear and it provides that irrespective of the date on which a member/members/electees/co- opted/nominated to the committee, their term is co-terminous with the term of the committee. In short, it is after mandating that the term of an elected committee has to be provided in the bye-laws of that society and then, dealing with the mode of calculation of an 'year' out W.A.Nos.1746 & 2082/2019 34 of the total term of office of the elected committee and making it clear that the term of members of the committee irrespective of their election is co-terminous with the term of the committee, sub-rule (3) is incorporated in Rule 39 of the KCS Rules. In short, in such circumstances, sub-rule (3) of Rule 39 cannot be taken as totally unrelated to sub-section (2) thereof and as one dealing with constitution of a committee under Section 28 of the KCS Act, as understood by the Election Commission. To put it briefly, sub-rule (3) of Rule 39 cannot be understood as a provision mandating that constitution of a new committee under Section 28 of the KCS Act shall invariably be conducted before the expiration of the term of an existing committee as any such strict interpretation would make the provisions under Section 33 of the KCS Act, especially, sub-section (3) thereof redundant. While constituting a new committee in terms of Section 28 of the KCS Act, for various reasons, election for any area or constituency may not take place, leaving a vacancy/vacancies at the time of constitution of the committee itself. If in the said election, members to satisfy the minimum quorum are elected, election will be W.A.Nos.1746 & 2082/2019 35 valid and it is for that committee to take steps for the election of the unfilled seats. It is to deal with such a situation also and to enable filling up such vacancy or vacancies in a changing committee that Rule 35A(6)(i) has been incorporated and it reads thus:-
"If the number of valid nominations received by the Returning Officer is less than the number of candidate to be elected but it constitutes quorum for a meeting as provided for in sub-section (5) of Section 28 of the Act and bye-laws of the Society, he shall declare such of the candidates whose nominations have been found to be valid, as duly elected. The persons who are so declared to have been duly elected shall form the committee. The committee so constituted shall also arrange to conduct the electoral processes once again, to fill up the remaining vacancies, in accordance with the procedure laid down in these rules."
Evidently, it also takes in other situations as well. In certain cases, a vacancy may arise unexpectedly among the elected members of an existing Managing Committee during the currency of its term. In certain societies, there may be provision for nomination of a member to the Managing Committee. In short, the expression 'Election and term of the members of the Committee' should be understood as election of member/members to an existing Managing Committee and W.A.Nos.1746 & 2082/2019 36 going by sub-rule (3) of Rule 39, election of members should be held before the expiry of the term of office of the existing committee and going by sub-rule (2) of Rule 39, in respect of all such electees also, their term would be co-terminous with term of the existing committee. For the foregoing reasons, we do not find any force in the contention founded on Rule 39(3) of the KCS Rules.
16. We have already noted that in the case on hand, the elected committee existed, during the currency of its term, passed a resolution on 29.4.2019 to conduct election on 7.7.2019 and on its receipt, it was duly forwarded by the Joint Registrar and ultimately, it culminated in Ext.P1 notification. However, election could not be conducted on 7.7.2019 because of a successful challenge against a mistake committed by the Election Commission in Ext.P1 notification. Merely because election could not be conducted before the expiry of the term of office of the existing committee in a society concerned, without looking into the circumstances that led to such a situation, how can the right or power of the existing committee in a society W.A.Nos.1746 & 2082/2019 37 concerned be taken away to pass another resolution provided that committee continues to be in office though only less than 60 days' period is left for expiration of its term, if passing of another resolution by the Managing Committee has become necessary. At any rate, mistakes/errors which created such a situation not attributable to any error in the resolution or any flaw on the part of the committee shall not recoil on the Managing Committee of the society in such a manner to adversely affect its power or interests. Getting administered by a Part-time Administrator or an Administrative Committee cannot be said to be in the interest of any society. We shall not be understood to have held that appointment of Part-time Administrator or Administrative Committee should be avoided in all circumstances as any such view will go in conflict with the provisions under Rule 33 of KCS Rules.
17. We ween it appropriate to refer to the following decisions in the context of the aforesaid question:-
In the decision in Cherian K. Anthrayose v. Joint Registrar W.A.Nos.1746 & 2082/2019 38 (1993 (2) KLT 701), this Court held that the Managing Committee of a society has the power to correct any error that crept in the earlier resolution and in the event of passing of such a subsequent resolution, it would not make the subsequent resolution a fresh resolution, but would make it only a part of the original resolution. True that in the case on hand, the original notification viz., Ext.P1 was issued based on a valid resolution and this Court as per Ext.P2 judgment interfered with and set aside Ext.P1 election notification not on account of error or illegality in the resolution but only due to a mistake committed by the Election Commission. Existence of a gap of 60 days in between the resolution and the holding of election is not mandatory in such circumstances, it was further held therein. We referred to this decision only to suggest that passing of a subsequent resolution, in the situation referred hereinbefore, specifying the new date, time and venue would have been sufficient, in the case on hand, to enable the Election Commission to issue fresh notification and to conduct election, at the earliest.W.A.Nos.1746 & 2082/2019 39
In the decision in Abu M.K v. State Co-operative Election Commission and others reported in 2008 (3) KHC 419: ILR 2008 (3) Ker. 392, this Court held that the wisdom to fix the date for the election should be that of the committee and further that the concept of the period of 'at least 60 days' in Rule 35A(1) of the KCS Rules could not be put in a straight jacket formula. Virtually, the view was reiterated by this Court in Suresh Kumar D. v. Kerala State Co-
operative Election Commission reported in ILR 2013 (1) Ker. 565.
18. According to us, decisions and provisions referred (supra) should also be borne in mind during further consideration of the aforementioned question. A Co-operative society is a socially relevant democratic institution functioning at grass root level, as held by this Court in Gopalan v. Joint Registrar of Co-op. Societies (1985 KLT
446) and hence, it is to be ensured that it is functioning in a democratic manner through an elected Managing Committee and continued management through elected committee is not illegally or unreasonably interfered with or interrupted. If everything went on W.A.Nos.1746 & 2082/2019 40 properly and in accordance with law based on the legal and valid resolution passed by the committee in question at the first instance election could have been conducted on 7.7.2019, i.e., well before the expiration of its term and a new committee could have assumed power soon on expiry of the term of the said committee. In short, it is the mistake on the part of the Election Commission that led to the advent of Part-time Administrator in the Bank. In such circumstances, it has to be held that the disinclination on the part of the Election Commission in acting upon the subsequent resolution on the ground that when it was passed the left over period for expiration of its term was less than 60 days, caused further prejudice to the interests of the society. Applying the law laid down in Abu's case (supra) that the concept of the period of 'at least 60 days' in Rule 35A of the KCS Rules cannot be put in straight jacket formula and in P.K.Karunan Nair's case (supra), reiterated in George Abraham's case (supra) that 60 days period provided in Rule 35(1) of the KCS Rules is only directory and not mandatory taking note of the similarity in the aforesaid provisions, we are of the view that the said resolution dated W.A.Nos.1746 & 2082/2019 41 3.7.2019 should have been acted upon. In this context, though the situation to pass subsequent resolution had occurred not due to any error in the earlier resolution, but solely due to a mistake on the part of the Election Commission and applying the ratio of the decision in Cherian K. Anthrayose' case (supra), the subsequent resolution dated 3.7.2019 to conduct election on 1.9.2019 ought to have been treated only as part of the earlier resolution enabling the Election Commission to pass fresh notification curing the mistake crept in the matter of enumeration of depositors' constituency. It is a fact that specific provisions are conspicuously absent in KCS Act as also in KCS Rules to deal with a situation, as involved in the case on hand. To say that an existing Managing Committee is powerless to pass a subsequent election resolution during the left over period for expiration of its term which is less than 60 days, in a situation, as obtained in this case, and its right is limited only to continue in office and conduct day-to-day affairs, till the expiration of the term will, according to us, go against the scheme of the KCS Act and the KCS Rules. In that context, the decision of a Division Bench of this Court W.A.Nos.1746 & 2082/2019 42 in Madhavan Namboodiri v. Kammaran reported in 1992 (2) KLT 567 assumes relevance. True that it was also a case dealing mainly with a provision under the KCS Rules which was later omitted, namely, Rule 35 thereof. It also dealt with Rule 26 of the KCS Rules which is also relevant for the purpose of the case on hand. Paragraph 16 of the decision reads thus:-
"16. From the aforesaid decisions what emerges is that when polling is stopped under Rules 35(3)(p) of the Rules, the election process can be continued from the stage at which it was slopped. If the election process is adjourned under Rule 35(3)(e)(v) of the Rules, then also the proceedings can be continued from the 'stage at which it was stopped. Taking into account the setting and purpose of Rule 35, we do not find any reason to make a deviation from the normal rule that an election process having been started, if for any reason had to be stopped in the middle, it can be continued from the stage at which it was stopped. Even in cases not covered by Rule 35(3)(e)(v) and Rule 35(3)(p), it is to be noted that by virtue of the provisions contained in S.28 of the Act and Rule 35 of the Rules, it is for the Managing Committee to fix the date for election. It is no doubt true that there is no provision in the Act or the Rules, as to what should happen if an election could not be held on the original date due to any reason not contemplated under the Rules. But that does not mean that the Committee is powerless. "It is a firmly established rule that an express grant of statutory power carries with it by necessary W.A.Nos.1746 & 2082/2019 43 implication the authority to use all reasonable means to make such grant effective" (Sutherland on Statutory Constructions). In Domat's Civil Law it has been stated:
"It is the duty of the judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.
"Maxwell on Interpretation of Statutes contains a statement that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. These principles were followed by their Lordships of the Supreme Court in I. T. Officer v. Mohd. Kunhi (AIR 1969 SC 430), S.D.O., Faizabad v. S.N. Singh (AIR 1970 SC 140), Asst. Collector, C.E.v.N.T. Co. of India Ltd. (AIR 1972 SC 2563) and Union of India v. Paras Laminates (P) Ltd. (AIR 1991 SC 696). The authority and jurisdiction to fix the date of election is vested in the Managing Committee and when such a power is conferred on the Committee, there is an implied grant of the power of doing all such acts which are essentially necessary to its execution. In that view of the matter, the Committee has certainly jurisdiction and power to fix a new date for the election if it could not be conducted on the original date fixed and the absence of any clause giving them that power will not militate against the Committee exercising such a power in a contingency where an election could not be conducted on the date originally fixed."W.A.Nos.1746 & 2082/2019 44
19. In the light of the decision in Madhavan Namboodiri's case and taking into account the absence of any specific provision to deal with situation occasioned in the case on hand, we are of the considered view that the fact that an existing committee is left with only less than 60 days time for the expiration of its term cannot be a reason to hold bad a subsequent resolution passed by it, during the currency of its term to conduct election to the Managing Committee of the society concerned. The fact that the date of election proposed thereunder falls on a date after the expiry of the term of the said outgoing committee also cannot be a reason to invalidate such a resolution or to decline to act upon it. In such situation, refusing to act upon an election resolution passed by an existing committee solely on the ground that the meeting in which such a resolution was passed within the period of 60 days for the expiration of the term and then acting upon a subsequent resolution passed by a part-time Administrator or Administrative Committee after the expiry of the term of the elected committee, in the matter of conduct of election to the committee would be a mockery to law. To put it pithily, the W.A.Nos.1746 & 2082/2019 45 Election Commission had committed an illegality in not acting upon the resolution passed by the lastly elected Managing Committee on 3.7.2019 to conduct election to the committee on 1.9.2019 solely for the reason it passed the resolution within 60 days of expiration of its term, disregarding the fact that such a situation had occurred due to a mistake committed by the Election Commission itself while issuing election notification based on a valid, earlier resolution passed by the said committee. As stated earlier, in the case on hand, the Election Commission was also bound by the specific direction in paragraph 16 of Ext.P2 judgment and hence, according to us, it was all the more, unreasonable for the Commission to take such a decision on its own, without approaching this Court appropriately, assigning the aforesaid reason.
20. Even after holding as above, in the case on hand, we are persuaded to consider whether the election conducted pursuant to the resolution passed by the Part-time Administrator and based on an interim order dated 4.1.2019 passed by us, deserves to be held as W.A.Nos.1746 & 2082/2019 46 valid. Even on such affirmation of the action the next question is, in view of the conditional order thereunder, in what manner result of the election should be declared. Though we have held that in law, the resolution dated 3.7.2019 passed by the then existing Managing Committee to conduct election on 1.9.2019 was valid and should have been accepted and acted upon, by the efflux of time, it has become now an impossibility. Hence, even if we interfere with the resolution passed by the Part-time Administrator on the ground that the earlier resolution of then existed Managing Committee was valid, owing to the fact that the Bank is still being administered by the Part-time Administrator it will lead to situation to compel the Part-time Administrator to pass another election resolution. In such circumstances, as held by the learned Single Judge, the endeavour should be to restore administration by a democratically Managing Committee, at the earliest. In that view of the matter, what can be done pragmatically is only to hold the election conducted on 5.10.2019 to the Managing Committee of the Bank pursuant to resolution passed by the Part-time Administrator as valid. We do so. W.A.Nos.1746 & 2082/2019 47
21. Now, in terms of the interim order dated 4.1.2019 as also in view of the discussion made hereinbefore, the question is in what manner counting of votes should be done to declare the result of the election conducted on 5.10.2019. We have already adverted to the interim order dated 4.10.2019 passed in these appeals. The copy of the proceedings dated 5.10.2019 filed by the Returning Officer along with the memo dated 17.10.2019 would reveal that in compliance with the said order, votes cast by members included in the final voters' list based on which election was to be conducted on 7.7.2019 and persons included in the voters' list subsequently, for conducting election on 5.10.2019 were put in separate boxes. Going by the statement, a total of 837 votes were polled on 5.10.2019, the break up being, 757 votes by members belonging to the first category mentioned above and 80 votes by members belonging to the second category. According to our considered view, result of the election conducted to the committee has to be declared by counting the votes cast by members whose names figured in the final voters list prepared for conducting election on 7.7.2019 only, for more than one reason.
W.A.Nos.1746 & 2082/2019 48
22. In the additional affidavit dated 9.10.2019 by the appellant in W.A No.1746 of 2019 along with petition to accept the same as I.A No.4/2019, it is stated that the Part-time Administrator appointed had enrolled a large number of members contrary to the provisions of the KCS Act. Along with the affidavit dated 8.10.2019 filed by the 5 th respondent in W.A No. 1746/2019 viz., the part-time Administrator, the list of persons included in addition to the members already included in the final voters' list prepared for conducting election on 7.7.2019, has been produced as Annexure R5 (c) and it would reveal that a total of 405 members were included in that list and Annexure R5(b) produced along with it would reveal that out of those 405 persons, only 80 persons cast their votes in the election conducted on 5.10.2019. At the same time, it would reveal that 757 members included in the final voters' list prepared for conducting election on 7.7.2019, cast their votes in the election conducted on 5.10.2019. As stated earlier, as per Ext.P1 notification, election to the committee was originally fixed to be held on 7.7.2019. Subsequent to its quashment as per Ext.P2 judgment, the then existing Managing Committee W.A.Nos.1746 & 2082/2019 49 which passed the original resolution, passed resolution dated 3.7.2019 proposing to conduct election on 1.9.2019. Pursuant to the disinclination of the Election Commission to act upon the said resolution dated 3.7.2019 and subsequent to the judgment impugned in the captioned appeals dated 1.8.2019 the Part-time Administrator passed an election resolution to conduct election on 5.10.2019. Thus, obviously, the election which was originally fixed to be held on 7.7.2019 was ultimately, held on 5.10.2019 viz., within a period of three months since 7.7.2019.
23. Certain other aspects also assume relevance while considering the aforesaid question. The term of the elected Managing Committee had expired only on 19.7.2019 and the Part-time Administrator was appointed from 20.7.2019. The impugned judgment directing the Part-time Administrator to adopt requisite resolution, was pronounced on 1.8.2019. The Part-time Administrator was to pass a resolution to conduct election on or before 9.8.2019. In the affidavit dated 8.10.2019, the Part-time Administrator stated that W.A.Nos.1746 & 2082/2019 50 those additionally included voters had remitted the share value by 3.8.2019 and since the election was held on 5.10.2019 i.e., after 60 days since 3.8.2019, there is no ineligibility for them to be included in the final voters' list. This contention is certainly founded on Rule 28 of the KCS Rules. We will deal with it a little later.
24. It is true that the case on hand is not one where election proposed to be held was merely postponed based on any error or any mistake committed by the committee or any untoward incident occurred on or before the date of polling. As stated earlier, the mistake committed by the Election Commission had actually led to the quashment of Ext.P1 election notification issued by the Commission. Admittedly, before the quashment of Ext.P1, final voters' list for conducting election on 7.7.2019 was published. In such circumstances, merely because the Part-time Administrator was directed to adopt a resolution to conduct election, on or before 9.8.2019, how can the Part-time Administrator who assumed charge on 20.7.2019 enroll members and permit them pay the share value by W.A.Nos.1746 & 2082/2019 51 3.8.2019. In the decision in Joint Registrar of Co-operative Societies v. T.A. Kuttappan reported in AIR 2000 SC 2378, the Hon'ble Apex Court held that the Administrator or an Administrative Committee got no power to enroll new members to a Co-operative society. Further, it was held that a Co-operative society is expected to function in democratic manner and that the committee of management is empowered to enroll new members.
25. In the decision in Prakash Kumar v. State Co-operative Election Commission reported in 2014 (1) KLT 68, it was held that the power to enroll members is definitely conferred exclusively on the democratically elected Managing Committee. Mere reason that a society was continued under the management of an Administrator or an Administrative Committee does not by sheer weightage of the number of years in which such management was continued, confer any authority on the Administrator or the Administrative Committee to enroll members and then on ratification by the General Body to grant the right to such members to exercise franchise. In the decision in W.A.Nos.1746 & 2082/2019 52 Viswanathan v. Assistant Registrar [2001 (3) KLT 2015], this Court, after referring to the decisions in Hassan v. Joint Registrar (1998 (2) KLT 746 (FB)), and in T.A Kuttappan's case (supra) held that Administrator appointed under Section 33 got no right to enroll members. In this case, the Administrator who assumed charge on 20.7.2019 was fully aware of the fact that his term would be only up to 5.10.2019 or till the declaration of the result of the election held on 5.10.2019.
26. It will not be inappropriate to refer to Rules 26 and 28 of the KCS Rules. They read thus:-
Rule 26 (1):No society shall admit members or approve the transfer of shares within sixty days prior to the date of election or the date of 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 election or at the general body meeting.
Rule 28. Restriction on the right of vote at the election:---(1) No member of a society shall be W.A.Nos.1746 & 2082/2019 53 eligible to vote at the meeting fixed for any election to the committee of that society, unless 60 days prior to the date of such meeting he acquires the number of shares for membership as may be provided in the bye-laws of the society of which he is a member.
27. Rule 26(1) deals with prohibition for admission to membership or approval of transfer of shares within sixty days prior to the date of election or the date of general body meeting and sub- rule (2) thereof provides that any person admitted as member and any person in whose favour the transfer of shares has been approved in contravention of Rule 26(1) shall not have the right to membership or the right to vote at the said election or at the general body meeting. We make it clear that we are not considering the right to membership of those persons and we are considering only the case of 80 persons among the 405 persons included in Annexure R5(b) list to exercise franchise in the election held on 5.10.2019. In fact, in regard to that question also, we are only considering the action of the Part-time Administrator in including them in the list of members qualified to vote in the election held on 5.10.2019. Rule 28 deals with restriction W.A.Nos.1746 & 2082/2019 54 on the right to vote at the election. True that going by Rule 28, if one acquires the requisite number of shares prior to the time limit (60 days) for meeting fixed for election, he would be eligible to vote. The intention behind the prohibition under Rule 26 was considered by a learned Single Judge of this Court in Valsaraj v. Joint Registrar (1984) KLT 628). It was held that the intention could only be that there must be some amount of certainty about the voters who constitute the electorate for election, once it is contemplated. When electoral process interrupted and poll was postponed to subsequent date, the electoral roll should remain the same and newly enrolled persons should not be permitted to vote. We find no reason to disagree with the said exposition of law. According to us, this should be the position unless there is a long lapse of time since halting of the election process. Even in the case of efflux of time, the reason therefor, has to be taken into account. In the context of Rule 26, it is only appropriate to refer to paragraph 17 of the decision in Madhavan Namboodiri's case (supra). It reads thus:- W.A.Nos.1746 & 2082/2019 55
17. Counsel for the appellant relied on the provisions of R.26 of the Co- operative Societies Rules to contend that when once an election could not be held on the date originally fixed, the whole process has to be started afresh. He submitted that the above rule as amended precludes any member from voting at an election if he is admitted to membership within 60 days of the election. It was contended that when once the election date is adjourned any person who was admitted as a member beyond 60 days of the date of election, would be entitled to vote and, a new voters' list will have to be prepared. On a reading of R.26 as a whole, we are not inclined to accept this contention. The wording of Rule 26(2) is very relevant that it only provides that any person admitted as member and any person in whose favour transfer of shares has been approved in contravention of the rule shall not have the right to membership or the right to vote at the said election or at the general body meeting. It is to be noted that the word used is 'said election'. Election of members of the Managing Committee normally accrues at a periodical interval in accordance with the provision contained in the byelaws, though no doubt it has been fixed as 3 years by the 1992 amendment. The intention in making a prohibition in R.26(2) is clear that a member disqualified under that rule will not be entitled to vote at the' said election' even if the election originally held is postponed or adjourned due to any reason beyond the control of the Managing Committee or the Returning Officer. In this case the election was to be held for the year 1992 after the term was over on 30-
6-1992. For the purpose of that election a date was originally fixed and the necessary procedures were followed for conducting the election on 14-6-1992. The voters' list was also prepared in accordance with that date. If for any reason the election was W.A.Nos.1746 & 2082/2019 56 adjourned to any other date, even then the subsequent election also will be for the purpose of the 'said election' and in that view of the matter, the members who are entitled to vote will have to be determined taking into account the original date of election and not the adjourned date of election. We are firmly of the view that the provision contained in R.26 does not militate against the view which we have now taken. From what is stated above it has to be held that the Managing Committee has authority and jurisdiction to fix a new date for the election, if for any reason the election could not be conducted on the original date fixed, and that it is not necessary to repeat the whole process as contemplated under R.35. The election proceedings could be continued from the stage at which it was stopped and we further hold that the decision in 1974 KLT 783 was not correctly decided. If it is to be held that the whole election process has to be repeated when once an election is adjourned for whatever reason, it will upset the whole democratic process and subvert the normal election process. A few people may for some reason or other will be able to stop the elections and if it is to be started afresh, there will be no end to the election process. Expediency also demands that when once election process is started, even if it is interrupted in the middle by any reason beyond the control of the committee or the Returning Officer, it can be proceeded with later from the stage at which it was stopped.
28. We are of the considered view that the interpretation given to Rule 26(2) by the Division Bench is the one which is true to the very soul of the said provision. Any other interpretation would defeat W.A.Nos.1746 & 2082/2019 57 its soul, according to us.
29. It is also pertinent to note that election fixed to be held on 7.7.2019 as per Ext.P1 notification issued by the Election Commission was challenged in W.P.(C).No. 16209 of 2019 by raising the grievance and ground that enumeration of constituency of depositors thereunder was against the bye-laws and Section 28(1C) of the KCS Act. Ext.P2 judgment in W.P.(C).No.16209/2019 would reveal that Ext.P1 notification was set aside and consequential directions were issued not on any ground referable to any error or illegality in the electoral roll, based on which election was fixed to be held on 7.7.2019. Evidently, the challenge against the enumeration of depositors constituency was upheld as per Ext.P2 judgment and in what manner the said constituency has to be notified was specifically indicated in the said judgment. It is thereafter, that the 5th respondent therein viz., the Bank in question was directed to pass fresh resolution and in turn, the Election Commission was directed to await such fresh resolution and then to issue fresh notification. In Ext.P2, there was no specific W.A.Nos.1746 & 2082/2019 58 direction that entire processes of election including preparation of electoral roll should be redone. Since the Part-time Administrator was aware that under normal circumstances he was only to hold office from 20.7.2019 till 5.10.2019 viz., only for 78 days he should not have indulged in the action of enrollment of new members. We have already made it clear that we have not made any finding or observation regarding the right of such persons to continue as members of the society and we have considered the question whether the Part-time Administrator's action in including their names as persons qualified to vote in the election then fixed to be held on 5.10.2019 as it is only the new date for election to the committee in place of the originally fixed date of 7.7.2019. The action of the Part- time Administrator in that regard is clearly illegal in view of the decisions and reasons mentioned hereinbefore. Based on such conclusions and findings, we dispose of these appeals with direction to the Returning Officer to count the votes of members included in the voters' list prepared for conducting election to the committee on 7.7.2019 viz., 757 votes cast by such persons and to declare the result W.A.Nos.1746 & 2082/2019 59 of the election to the committee of the Bank held on 5.10.2019, accordingly. We make it clear that 80 votes cast by persons included in Annexure R5(c) list shall not be counted for the purpose. The Returning Officer shall declare the result of the election. After the declaration of result of the election, it will be open to the parties aggrieved to assail the election on any ground/grounds, if any, other than the grounds and contentions referred to and decided.
Sd/-
C.T.RAVIKUMAR JUDGE Sd/-
N.NAGARESH JUDGE Spc/ W.A.Nos.1746 & 2082/2019 60