Chandran K.M. v. State Co-operative Election Commissioner, Joint Registrar of Co-operative Societies, Returning Officer, Kozhikode Taluk Employees and Pensioners Welfare Co-operative Society Ltd., Kozhikode Taluk Employees and Pensioners Welfare Co-operative Society Ltd. and President, Kozhikode Taluk Employees and Pensioners Welfare Co-operative Society Ltd.

CR # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 22ND DAY OF JULY 2019 / 31ST ASHADHA, 1941** ## **WP(C).No.19163 of 2019** ## **PETITIONERS:** **CHANDRAN K.M., AGED 61 YEARS, S/O. CHANDUKUTTY K. M., KALAPAKASSERIMANNI HOUSE, KONOTT P.O., KUNNAMANGALAM - VIA KOZHIKODE DISTRICT PIN - 673 571.** **BY ADVS.** **SRI.BABU JOSEPH KURUVATHAZHA SRI.P.T.ABHILASH** ## **RESPONDENTS:** - **1 STATE CO-OPERATIVE ELECTION COMMISSIONER, 3RD FLOOR, CO-BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033.** - **2 JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, SAHAKARANA BHAVAN, PUTHIYARA, KOZHIKODE - 673 004.** - **3 RETURNING OFFICER, ELECTION TO THE KOZHIKODE TALUK EMPLOYEES AND PENSIONERS WELFARE CO-OPERATIVE SOCIETY LTD., NO. D- 3058, M.G. ARCADE, 2/2282 B, CIVIL STATION P.O., KOZHIKODE - 673 020.** - **4 KOZHIKODE TALUK EMPLOYEES AND PENSIONERS WELFARE COOPERATIVE SOCIETY LTD. NO. D-3058, M.G. ARCADE, 2/2282 B, CIVIL STATION P.O., KOZHIKODE - 673 020, REPRESENTED BY ITS SECRETARY.** - **5 PRESIDENT,** **KOZHIKODE TALUK EMPLOYEES AND PENSIONERS WELFARE COOPERATIVE SOCIETY LTD. NO. D-3058, M.G. ARCADE, 2/2282 B, CIVIL STATION P.O., KOZHIKODE - 673 020.** **BY ADV. SRI.R.LAKSHMI NARAYAN SMT.C.S.SHEEJA, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.19163/2019** **2** ## **JUDGMENT** A question of some importance has been posed before this Court in this writ petition: whether the restrictive terms in the Bye-laws of a Society, as per which a member is mandated to acquire a minimum of ten shares to obtain qualification to contest in the elections to its Managing Committee, can obtain juristic imprimatur under the provisions of the Kerala Cooperative Societies Act and Rules (hereinafter referred to as “the KCS Act and Rules” for short). 2. The petitioner says that he is a member of the 4[th] respondent-Society and alleges that Ext.P5 Election notification, issued by the State Co-operative Election Commission, is illegal, since it allows all 'A' class members to contest in the ensuing elections to the Managing Committee of the said Society notified to be on 10.08.2019, contrary to Ext.P2 Bye-laws which unambiguously stipulates that only members who have acquired at least ten shares can do so. The petitioner asserts that he intends to file his nomination as a candidate and impugns Ext.P5 to the above extent; very **WP(C).No.19163/2019** **3** interestingly, relying on a judgment of this Court in **V.R.Bhaskran v. State of Kerala [2019 (3) KHC 935]** in substantiation of his contentions. 3. I have heard Sri.Babu Joseph Kuruvathazha, learned counsel for the petitioner; Sri.R.Lakshmi Narayan, learned Standing Counsel appearing for the Election Commission and Smt.C.S.Sheeja, learned Senior Government Pleader. 4. As has been seen above, the singular issue placed for consideration of this Court by the petitioner is whether the notification of the Election Commission, which permits every 'A' class member, without restricting any one of them on the basis of number of shares, to contest in the elections is worthy of legal favour, when the Bye-laws of the Society specifies that every such member requires to acquire a minimum of ten shares to be qualified to do so. Pertinently, reliance placed by the petitioner on the judgment of this Court in **V.R.Bhaskaran (supra)** , is on account that it has been declared therein that, while the Election Commission issues an Election Notification, they must act in terms of Rule 35A(3) of the Kerala Co- **WP(C).No.19163/2019** **4** operative Societies Rules (KCS Rules) and incorporate the “area” and “constituency” as specified in the Bye-laws, from which the members are to be elected. The petitioner, seeking strength from this, asserts that these principles should apply in the case of the stipulation in the Bye-laws with respect to the qualification of members to contest also. 5. Sri.R.Lakshmi Narayan, learned Standing Counsel appearing for the Election Commission, answers the contentions of the petitioner as afore by reading the Explanation to Rule 35A(4) of the KCS Rules which, after its amendment through G.O.(P) No.83/2017, is as under: _“Every A class member of a society shall be eligible to vote and contest in the election if he has subscribed to the minimum share value as prescribed in the bye-laws. Any other restriction if imposed in this regard shall be declared as null and void. The preliminary voters list and final voters list shall contain the name and address of the Society where the member is a society or corporation or a statutory or non statutory board, committee or other body of persons which is a member of another society or Government.”_ He submits that the afore extracted Explanation makes it **WP(C).No.19163/2019** **5** indubitable that every 'A' class member who has subscribed to the minimum share value would be eligible to vote and contest in the elections and that it encompasses the true spirit of Article 243ZK of the Constitution of India because, otherwise, only those persons who are financially capable to hold the minimum qualifying shares will have the opportunity to contest in the elections, thus excluding large number of members who are incapable of doing so. He therefore, says that the Election Commission has issued the impugned notification specifically keeping in mind the afore extracted Explanation of Rule 35A(4) of the KCS Rules and the constitutional imperatives. 6. The learned Senior Government Pleader, Smt.C.S.Sheeja, adopts the submissions of Sri.R.Lakshmi Narayan to a large extent and supplements it by saying that if any provision of the Bye-laws of the Society is contrary to the prescriptions in law and in particular, the Constitution of India, then it will have to be repudiated and that the Election Commission was, therefore, without error in having issued the impugned notification granting contesting rights to all 'A' class **WP(C).No.19163/2019** **6** members, as is provided in the afore Explanation to Rule 35A(4) of the KCS Rules. She then adds that if the provisions of the Bye-laws are allowed to operate, a clear but illegal discrimination among the members would be inevitable, since only those who have acquired the minimum qualifying shares would be enabled to contest, while the others though can vote, cannot file their nominations. She contends that this will be contrary to the cardinal principles of co-operation established over the years; and consequently prays that this writ petition be dismissed and the elections be allowed to be conducted in terms of the impugned notification. 7. When I begin analysis of the afore submissions, it is certain that the law is now well settled that any provision of the Bye-laws of a Society which runs contrary to the applicable statutory prescriptions would be without legal force. In the instant case, even the petitioner does not assert that the terms of Ext.P2 Bye-laws are in conformity with the Explanation to Rule 35A(4) of the KCS Rules afore extracted which statutorily secures to all members of the Society equal **WP(C).No.19163/2019** **7** right to vote in and contest the elections. This is because, while the Bye-laws restrict the eligibility to contest the elections solely to those members who have secured a minimum of ten shares, the Explanation to Rule 35A(4) assures such right to every eligible member regardless of number of shares he/she possesses. In that view, the reliance impelled by the petitioner on **V.R.Bhaskaran (supra)** , is wholly misplaced since, what has been declared in the said judgment is that, while stipulating the “area” or “constituency” in an Election Notification, the Election Commission must follow the Bye-laws, while also providing for those constituencies that are statutorily provided under the KCS Act and Rules. The declarations in the said judgment are certainly not to the effect that the right of members to contest the elections can be curtailed through the provisions of the Bye-laws, which run contrary to the requirements in the Explanation to Rule 35A(4) of the KCS Rules. Resultantly, I cannot find favour with the petitioner and **WP(C).No.19163/2019** **8** am, therefore, constrained to dismiss this writ petition; however, without making any order as to costs. **Sd/-** **DEVAN RAMACHANDRAN JUDGE** YKB **WP(C).No.19163/2019** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** - **TRUE COPY OF THE MEMBER'S IDENTITY CARD DATED 08.06.2015 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE APPROVED BYE-LAWS OF THE 4TH RESPONDENT SOCIETY.** - **EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 14.06.2019 SUBMITTED BY THE 4TH RESPONDENT THROUGH ON-LINE BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 30.06.2019 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE ELECTION NOTIFICATION DATED 03.06.2016 PUBLISHED BY THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 03.07.2019 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 08.07.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **RESPONDENT'S/S EXHIBITS:** ## **NIL** ## **//TRUE COPY//** YKB **PA TO JUDGE**